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The Selfless Constitution

Experimentalism and flourishing as foundations of South Africa's basic law

by Stu Woolman

Do you possess 'freedom'-the will to do as you choose-as an individual, as a participant in social affairs or as a citizen in the political realm? Well, no. Not really. At least not as most of us understand a term loaded down with metaphysical baggage. Don't worry. You've got something better: a neurological system capable of carrying out the most complex analytical and computational tasks; membership in innumerable communities that provide you with huge stores of knowledge and wisdom; and a politico-constitutional order that ought to provide the material and the immaterial conditions that will enable you to pursue a life worth valuing. Drop the simplistic folk-psychology of unfettered freedom, whilst holding on to intentionality, and you might be inclined to adopt a set of social practices and political arrangements that enhance the chances that you and your compatriots will flourish.

As many recent studies of consciousness reveal our neurological systems are complex feedback mechanisms designed to create myriad for trial and error and (if you survive) the production of new stores of knowledge. Individuals-comprised of numerous radically heterogeneous, naturally and socially determined selves-are always experimenting, attempting to divine through reflection and action, what 'works' best: even when 'best' means fully embracing who we already are. Choice architects, those persons charged with constructing the environments within which we operate daily, should (if responsible) regularly run experiments that attempt to eliminate biases, and ultimately, deliver norms that nudge us away from negative defaults toward more optimal ends. A constitutional democracy, made up of millions of radically heterogeneous, densely populated individuals, constantly strives to determine what works best for most of its many constituents. 

Because South Africa's Constitution states (at an extremely high level of generality) only some of the norms that govern our lives, it remains for citizens, representatives and judges to create doctrines and institutions that serve its capaciously framed ends best. After canvassing the relevant literature in neuroscience, empirical philosophy, behavioural psychology, social capital theory, development economics, and emergent experimental governance, this work suggests that manifold experiments in living that fall within the accepted parameters of our shared constitutional norms are likely, over time, to produce more optimal ways of being that can be replicated by other members of our polity. 

Our reflexive stance toward best practices-a linchpin of this book's take on experimental governance-when inextricably linked to a commitment to flourishing and to the expansion of individual capabilities, should cause us to alter the content of the fundamental norms that shape our lives and bind us to one another. A political order founded upon experimental constitutionalism and flourishing promises an egalitarian pluralist reformation of South African society. The book spins out its novel thesis against the concrete backdrop of political arrangements and judicial doctrines that have emerged during the first 20 years of our truly vibrant constitutional democracy. Its trenchant analysis of political institutions and constitutional case law shows us how far we have come, and how far we still have to go.

ISBN 9781920033774 | 582 pages | 244 x 170mm | 2021 | NISC (Pty) Ltd, South Africa | Paperback

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eBook ISBN: 9781920033781

Reviews

"The Selfless Constitution contributes significantly to debates surrounding post-apartheid constitutionalism. It offers genuinely innovative suggestions for thinking about and altering political institutions and doctrines in South Africa. Woolman's critique of South African constitutional cases is always interesting, and reflects intimate knowledge of developments in South African constitutional jurisprudence. ... Judges, legal practitioners and constitutional scholars have much to learn from this book."

Patrick Lenta, Professor, School of Religion, Philosophy & Classics, University of KwaZulu-Natal, South African Law Journal

"The Selfless Constitution is a theoretically rich and imaginative work, which is set to become a standard reference. Although it deals, first and foremost, with South Africa's Constitution, the significance of its theoretical reflections extends far beyond our national borders. It deserves to be read widely, and to become part of a transnational debate on the possibilities and limits of a form of constitutionalism that is committed to ongoing processes of experimental learning and renewal."

Henk Botha, Professor of Law, Stellenbosch University, Stellenbosch Law Review

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