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The Selfless Constitution: Experimentalism and Flourishing as Foundations of South Africa's Basic Law
Stu Woolman - The Selfless Experimentalism and Flourishing as Foundations of South Africa's Basic Law
Do you possess 'freedom' -- the will to do as you like -- as an individual, as a participant in social affairs or as a citizen in the political realm? Well, no. Not as most of us understand a term loaded down with metaphysical baggage. Don't worry. You've got something a brain capable of carrying out the most complex analytical and computational tasks; membership in innumerable communities that provide you with huge stores of knowledge; and a politico-constitutional order that ought to provide the material goods and immaterial conditions that will enable you to pursue a life worth valuing. As many recent studies of consciousness reveal, our neurological systems are complex feedback mechanisms designed to create myriad opportunities for trial and error and the production of new stores of knowledge. Individuals -- comprised of radically heterogeneous, naturally and socially determined selves -- are always experimenting, attempting to divine through reflection and action, what works even when 'best' means fully embracing who we already are. Choice architects, those persons charged with constructing environments that create greater health, wealth and happiness for individuals within their communities, regularly run experiments that attempt to eliminate biases, draw on the express preferences of a representative cohort of individuals and ultimately, deliver norms that nudge people away from their negative defaults toward more optimal ends. A constitutional democracy, made up of tens of millions of radically heterogeneous, naturally and socially determined selves, constantly strives, through policy, legislation, common law, customary law and ultimately the provisions of its basic law, to determine what works best for most of its many constituents. Because our Constitution states only some of the norms that govern our lives at an extremely high level of generality, it remains for citizens and their representatives to create doctrines and institutions that serve those capaciously framed ends best. After canvassing the relevant literature in contemporary neuroscience, empirical philosophy, behavioural psychology, social capital sociology, development economics, the capabilities approach and emergent experimental governance, this work suggests that manifold individual experiments in living that fall within the accepted parameters of our shared constitutional norms are likely to produce best practices or ways of being in the world that can be replicated by other members of our polity. A central feature of this book's gloss on experimental constitutionalism (firmly grounded in a wide array of case-studies) is its well-earned conclusion that forward, lateral-looking and provisional, rolling and reflexive best practices, when tightly bound to a basic law committed to flourishing, will invariably cause us, over time , to alter the content of the fundamental norms that shape our lives and bind us to one another. The Selfless Constitution closes by demonstrating why only a politics that promotes experiments in living and to the expansion of individual capabilities, is likely to produce (a) more optimal ways of being that can be replicated, and further enhanced, by other members of our polity and (b) the egalitarian pluralist social order to which the Constitution aspires. The book spins out its novel thesis against the concrete backdrop of political arrangements and judicial doctrines that have emerged during the first 18 years of South Africa's truly vibrant constitutional democracy. Its trenchant analysis of South African institutions and case law shows us how far we have come and how far we still have to go.
Do you possess 'freedom' -- the will to do as you like -- as an individual, as a participant in social affairs or as a citizen in the political realm? Well, no. Not as most of us understand a term loaded down with metaphysical baggage. Don't worry. You've got something a brain capable of carrying out the most complex analytical and computational tasks; membership in innumerable communities that provide you with huge stores of knowledge; and a politico-constitutional order that ought to provide the material goods and immaterial conditions that will enable you to pursue a life worth valuing. As many recent studies of consciousness reveal, our neurological systems are complex feedback mechanisms designed to create myriad opportunities for trial and error and the production of new stores of knowledge. Individuals -- comprised of radically heterogeneous, naturally and socially determined selves -- are always experimenting, attempting to divine through reflection and action, what works even when 'best' means fully embracing who we already are. Choice architects, those persons charged with constructing environments that create greater health, wealth and happiness for individuals within their communities, regularly run experiments that attempt to eliminate biases, draw on the express preferences of a representative cohort of individuals and ultimately, deliver norms that nudge people away from their negative defaults toward more optimal ends. A constitutional democracy, made up of tens of millions of radically heterogeneous, naturally and socially determined selves, constantly strives, through policy, legislation, common law, customary law and ultimately the provisions of its basic law, to determine what works best for most of its many constituents. Because our Constitution states only some of the norms that govern our lives at an extremely high level of generality, it remains for citizens and their representatives to create doctrines and institutions that serve those capaciously framed ends best. After canvassing the relevant literature in contemporary neuroscience, empirical philosophy, behavioural psychology, social capital sociology, development economics, the capabilities approach and emergent experimental governance, this work suggests that manifold individual experiments in living that fall within the accepted parameters of our shared constitutional norms are likely to produce best practices or ways of being in the world that can be replicated by other members of our polity. A central feature of this book's gloss on experimental constitutionalism (firmly grounded in a wide array of case-studies) is its well-earned conclusion that forward, lateral-looking and provisional, rolling and reflexive best practices, when tightly bound to a basic law committed to flourishing, will invariably cause us, over time , to alter the content of the fundamental norms that shape our lives and bind us to one another. The Selfless Constitution closes by demonstrating why only a politics that promotes experiments in living and to the expansion of individual capabilities, is likely to produce (a) more optimal ways of being that can be replicated, and further enhanced, by other members of our polity and (b) the egalitarian pluralist social order to which the Constitution aspires. The book spins out its novel thesis against the concrete backdrop of political arrangements and judicial doctrines that have emerged during the first 18 years of South Africa's truly vibrant constitutional democracy. Its trenchant analysis of South African institutions and case law shows us how far we have come and how far we still have to go.
650 pages, Paperback
First published July 1, 2013
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