The Selfless Constitution : experimentation&flourishing as the foundations of South Africa's basic law

Abstract

The way the vast majority of us think about the self, consciousness and free will is incorrect – dramatically out of step with what the majority of neuroscientists, cognitive psychologists scientists and analytic philosophers have to say about those subjects. One consequence of these erroneous views is that the manner in which the majority of us understand ‘freedom’ – as a metaphysical term and as a political concept -- is sharply at odds with how things actually are. We replicate similar kinds of errors when we think about how various forms of human association are constructed and how change actually occurs within such associations. Once again, epistemological fallacies with regard to social theory have the consequence of leading us to attribute far greater ‘freedom’ to groups than they actually possess. This second misattribution of autonomy results in institutional political arrangements and constitutional doctrines at odds with what we know about the human condition. As things stand, the various models of political theory with which the South African Constitutional Court operates rest upon a belief that the rights and freedoms enshrined in the Final Constitution should enable individuals to exercise relatively unfettered control over decisions about the intimate relationships and the various practices deemed critical to their self-understanding. However, individual autonomy as a foundation for constitutional theory overemphasizes dramatically the actual space for self-defining choices. In truth, our experience of personhood, of self-consciousness, is a function of a complex set of narratives over which we exercise little in the way of (self) control. The involuntary and arational nature of identity formation – at the level of both the individual and the social -- requires a constitutional theory that supplants the model of a rational individual moral agent which undergirds much of our current jurisprudence with a vision of the self that is more appropriately located within and determined by the associations to which we all belong. Despite the involuntary and arational nature of identity formation, we can live within communities that determine the greater part of the meaning we make, and still remain committed to the possibility of significant change (for the better) within those communities. This thesis then goes on to explain how a commitment to experimentalism in the political domain, when married to a robust conception of basic entitlements and citizenship, services human flourishing. (To expand the conditions for flourishing, however, is not to make us metaphysically ‘free’ to ‘will’ our actions: a commitment to flourishing reflects an attempt to create an environment in which all inhabitants of South Africa have the opportunity to live lives worth valuing.) Experimental constitutionalism dovetails with a very modest, naturalized account of flourishing because both accounts (1) take the radical givenness of existing constitutive attachments seriously; (2) recognize the boundedness of individual and collective rationality; and (3) describe various kinds of feedback mechanisms that allow for error correction and the enhancement of the conditions of being. Experimental constitutionalism, in particular, enables more citizens to see what ‘works’ and what doesn’t – both with respect to the means and the ends of our existence. Experimental constitutionalism offers the promise of improving the conditions for being by suggesting a range of alterations in constitutional doctrine and a host of changes in the manner in which many political institutions operate. In South Africa, the innovations associated with experimental constitutional design embrace: (1) a doctrine of constitutional supremacy that maintains a meaningful equilibrium with a doctrine of separation of powers, and thus sets relatively clear guidelines for how authority for constitutional interpretation might best be shared by the judiciary, the legislature, the executive and non-state-actors; (2) the use of various standard judicial mechanisms – such as cost orders, court procedures, amici and intervenors, expanded constitutional jurisdiction and structural injunctions – to create bubbles of participatory democracy better able (than courts or legislatures) to resolve various kinds of polycentric conflict; (3) an approach to limitations analysis that provides a better process than ‘balancing’ for experimentalist adjudication; and (4) greater roles for Chapter 9 Institutions with respect to investigation, information-sharing and norm-setting; and (5) a principle of democracy that invites public participation in law-making that will both elicit better information about which government policies work best and effect widespread reflection about the meaning of those constitutional norms that govern our lives. The thesis then (a) mines the brief historical record of two important policy areas – Housing and Education – to show how the principles of experimental constitutionalism have already been put to work and (b) re-examines six Constitutional Court cases to demonstrate how the dual commitment to experimental constitutionalism and flourishing might generate more optimal outcomes.