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Stu Woolman & Henk Botha 167
legal principles, a problem-solving perspective implements each set
of solutions tentatively and is ready to modify these rolling normative
guidelines on the basis of empirical evidence. 37 The experimentalist
approach calls for mechanisms that compare the information
generated by different proposals and that allow for the adoption of
successful solutions.
Of course, courts called upon to perform limitations analysis
cannot avoid conflicts that are not susceptible to deliberative
solutions. Here again experimental constitutionalism offers the
additional idea of provisional adjudication. Provisional adjudication
puts alternative possible remedies to the test of experience without
necessarily elevating such remedies to the level of established
doctrine. Provisional adjudication promises two additional benefits.
First. It may facilitate compromise. 38 Affected parties may learn from
practical experience and adjust their beliefs and conduct accordingly.
Second. It gives parties that may have been aggrieved with a final
non-provisional outcome the opportunity to experiment with a
remedy of their own making.
But suppose that such provisional space fails to yield a desirable
— let us say, from the view of the state — outcome. A finding of
unconstitutionality generally still leaves the legislature free to pursue
the same objectives, but requires it to use means that better fit — are
more narrowly tailored to — constitutional imperatives. It is,
therefore, clear that the courts do not have the final word on the
meaning of the constitutional text in two very important respects.
First, just as the legislature must pay heed to the Court’s reasons for
a finding of unconstitutionality when offering a new formulation of a
law, so too must the Court demonstrate discernible deference to the
legislature’s reformulation. The very fact of a limitations clause in our
Bill of Rights demands that the courts give the coordinate branches of
37 See M Dorf ‘Legal indeterminism and institutional design’ (2004) 78 New York
University Law Review 875 920-935 and 960-70.
38
See eg Occupiers of 51 Olivia Road Berea Township and 197 Main Street
Johannesburg v City of Johannesburg 2008 3 SA 208 (CC). Prior to handing down
its decision, the Constitutional Court issued an order requiring the parties to the
dispute to engage meaningfully with each other with a view to addressing the
possibilities of short-term steps to improve current living conditions and of
alternative accommodation for those who would be rendered homeless. As a
result of this interim order, the parties reached a consensus that the City of
Johannesburg would not eject the occupiers, that it would upgrade the buildings
and that it would provide temporary accommodation. In addition, the parties
agreed to meet and discuss permanent housing solutions. This agreement was
then ratified by an order of the Constitutional Court. That consensus decision
about the optimal remedy left the Court free to articulate general norms about
the right to access to adequate housing: (1) evictions cannot occur in the absence
of meaningful engagement; (2) the potential for homelessness must be considered
prior to any decision by a state actor to eliminate unsafe buildings. While
an experimental constitutionalist could generally ask for little more, one problem
with the judgment is its failure to provide ‘new’ rolling norms with teeth.