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136 Chapter 8
We have gone beyond the point where we could explain
(descriptively) the Court’s jurisprudence in terms of (the often
misunderstood notion of) ‘incompletely theorised agreements’. 27
27
C Sunstein One case at a time (1996). The incompletely theorised agreements
that are the mainstay of judicial minimalism are explained by Sunstein as follows:
A minimalist court settles the case before it, but leaves many things
undecided. It is alert to the existence of reasonable agreement in a
heterogenous society. It knows that there is much that it does not know;
it is intensely aware of its own limitations. It seeks to decide cases on
narrow grounds. ... Alert to the problem of unanticipated consequences,
it sees itself as part of a system of democratic deliberation; it attempts to
promote the democratic ideals of participation, deliberation and
responsiveness. It allows for continued space for democratic reflection
from Congress and the states. It wants to accommodate new judgments
about facts and values.
As above, ix – x. However, Sunstein’s minimalism only secures traction because it
is parasitic upon a deep, and widely shared, set of constitutional doctrines (and
tacit) assumptions amongst judges, lawyers and citizens. Sunstein recognises the
necessity of a solid core:
Anyone who seeks to leave things undecided is likely to accept a wide shared, set
of constitutional doctrines (and tacit) assumptions amongst judges, lawyers and
citizens. Sunstein recognises the necessity of a solid core:
Anyone who seeks to leave things undecided is likely to accept a wide
range of things, and these constitute a ‘core’ of agreement about
constitutional essentials. In American constitutional law at the turn of the
century, a distinctive set of substantive ideals now form that core.
As above, x. See also C Sunstein ‘Leaving things undecided’ (1996) 110 Harvard
Law Review 4; C Sunstein ‘Incompletely theorised agreements in constitutional
law’ John M Olin Law & Economics Working Paper No 322 (2007), available at
27 www.law.uchicago.edu/laweconwkngPprs_301-350/322.pdf
C Sunstein One case at a time (1996). The incompletely theorised
(accessed
agreements
14 July
2008).
that are
More
the
recently,
mainstay
Sunstein
of judicial
has
minimalism
turned his
are
attention
explained
to social
by Sunstein
phenomena
as follows:
that
produce more accurate assessments and better solutions to problems on
substantially A minimalist larger court scales settles than courts the case of law. before See C it, Sunstein but leaves Infotopia: many How things many
minds undecided. produce knowledge It is alert (2006). to the Markets, existence though of reasonable often imperfect, agreement rely in upon a
limited heterogenous ‘shared’ information society. It knows (sometimes that there no is more much than that price) it does and not know; generate
optimal, it is or intensely at least aware substantially of its own more limitations. efficient, It and seeks thicker to decide outcomes. cases on Some
open-source narrow grounds. software, . . like . Alert Linux, to the produces problem incredibly of unanticipated rich results consequences, without any
central it sees planning. itself as The part web of itself a system — the of environment democratic deliberation; for Linux — it produces attempts both
optimal to promote and suboptimal the democratic outcomes, depending ideals of participation, how information deliberation is solicited and and
how responsiveness. further cooperative It allows endeavors for continued are organised. space Thinness for democratic is, therefore, reflection not a
virtue from in itself Congress (even and for the Sunstein). states. It wants It may to be accommodate a virtue within new judgments systems with
information about facts deficits and values. or significant distortions in the manner in which decisionmakers
As above
use
ix –
the
x. However,
information
Sunstein’s
they possess.
minimalism
A growing
only secures
contingent
traction
of constitutional
because it is
law
parasitic
scholars
upon
have
a deep,
recognised
and widely
that problems
shared,
of
set
information
of constitutional
deficit,
doctrines
lack of crosscultural
(and
tacit) assumptions
understanding
amongst
and limited
judges,
institutional
lawyers and
competence
citizens. Sunstein
can be
recognises
‘solved’ by
the
a
subtle
necessity
recasting
of solid
of
core:
existing constitutional doctrines and judicial remedies that
extract better information and thereby achieve more mindful results. See eg M
Dorf Anyone & C Sabel who seeks ‘A constitution to leave things of democratic undecided is experimentalism’ likely to accept (1998) a wide 98
Columbia range Law of things, Review and 267; these M Dorf constitute & B a Friedman ‘core’ of ‘Shared agreement constitutional about
interpretation’ constitutional (2000) essentials. Supreme In American Court constitutional Review 61; law C Sabel at the turn & W of the Simon
‘Destabilisation century, a distinctive rights: How set public of substantive law litigation ideals succeeds’ now form that (2004) core. 117 Harvard
Law
As above
Review
x.
1015.
See also
For
C
the
Sunstein
application
‘Leaving
of experimental
things undecided’
constitutionalism
(1996) 110
to
Harvard
South
African
Law Review
jurisprudence,
4; C Sunstein
see
‘Incompletely
Woolman (n
theorised
3 above);
agreements
S Woolman
in constitutional
& H Botha
‘Limitations’
law’ John M
in
Olin
Woolman
Law &
et
Economics
al (eds) Constitutional
Working Paper
Law
No
of
322
South
(January
Africa
2007),
(n 3
above)
available
Chapter
at http://www.law.uchicago.edu/lawecon.
34; S Woolman The selfless Constitution:
More recently,
Experimentation
Sunstein has
&
flourishing
turned his attention
as the foundations
to social phenomena
of South Africa’s
that produce
basic law
more
(forthcoming
accurate
2008).