The Selfless Constitution

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.

Reviewer's Comments: 

In this impressive work, Stu Woolman sets out to provide an original theoretical foundation for South African constitutional law and jurisprudence by drawing on arguments from contemporary philosophy as well as empirical findings from the sciences and social sciences. The interdisciplinary sweep of the book is remarkable: the ground traversed includes philosophy of mind and action, neuroscience, behavioural economics, consciousness studies, evolutionary epistemology, choice architecture, social capital theory, experimental governance, development theory and the capabilities approach. Woolman believes that if we fail to avail ourselves of the best work being done in these fields, then ‘errant understandings’ implicit in the unexamined ‘folk’ theories upon which most of us have been brought up, and which continue to shape our thinking, will undermine future progress in the development of South African constitutional law. It is of particular importance, Woolman argues, that we should break existing ‘metaphysical bottlenecks’ regarding the nature of the self, consciousness, free will and what he calls ‘the social’ – the way we are connected to other ‘selves’ through our social structures and institutions. … narratives, is thoroughly a function of physical capacities and social practices over which I have little control or choice’. With greater clarity on what kinds of individuals we are, the limits to our freedom, and what binds us together, Woolman believes we will have a sounder basis for constitutional theory and practice. He argues … that an understanding of the theoretical advances in the disciplines mentioned above supports an approach to constitutional theory and practice based upon the notions of experimentalism and flourishing.
[…] Woolman’s distinctive way of doing constitutional theory ... can best be appreciated by reference to a contemporary debate in metaphilosophy concerning the extent to which philosophical lessons can be learnt from scientific and social scientific research. Three candidate views on this matter have been usefully described as ‘separatism’, ‘replacement’ and ‘engagement’. On the separatism model, the subject matter of philosophy is fundamentally different from that of the sciences and social sciences and philosophy should operate entirely independently of these empirical disciplines. On the replacement model, advances in science will make philosophy redundant. By contrast with both of these, the engagement model advocates cross-disciplinary engagement between philosophy and the empirical disciplines, with philosophers recognising that empirical work can have implications for philosophy (by, for instance, constraining or supporting possible theoretical options), and with empirical researchers recognising that philosophy has particular strengths in the formulation of hypotheses, the construction of abstract theoretical frameworks and the assessment of methodologies. In my view, Woolman’s book demonstrates the virtues of the engagement approach in the area of constitutional theorising. One does not have to agree with his conclusions to appreciate that he has given us a fully elaborated, working model of how an understanding of science and social science can help us to rethink our vision of the purpose of a constitution and its interpretation. Woolman has shown us a new way to go about the task of constitutional theorising. This is a very large achievement and a substantial advance in knowledge.
Denise Meyerson, Professor of Law, Macquarie Law School, Macquarie Law Journal and South African Journal of Human Rights

Stu Woolman is one of the leading constitutional law scholars in South Africa for a reason. His Selfless Constitution – a philosophical tour de force – bestows upon us an utterly original way to think about constitutional jurisprudence in South Africa. In so doing, the book underwrites a host of novel and imaginative contributions to contemporary currents in interdisciplinary legal thought, sociology of law, philosophy, and political theory.
Drucilla Cornell, Professor, Jurisprudence and Political Science, University of London and Rutgers University

Stu Woolman’s new book is an ambitious work, which expounds a theory of constitutionalism which breaks with traditional understandings of the self, the social and constitutional law, and seeks to reconceive them in a number of ways. This it does by drawing on a wide variety of scientific fields, theoretical endeavours, analogies and metaphors. To mention but a few examples: global neuronal workspace theory and experimental philosophy are enlisted to problematise and point beyond metaphysical conceptions of selfhood and individual freedom; the notions of feedback mechanisms, choice architecture and social capital are employed to rethink the social and the possibility of social change; and concepts such as shared constitutional interpretation and participatory bubbles are developed as a way out of the stale oppositions that tend to characterise constitutional thought. Throughout, the author takes great pains to relate these diverse concepts and theories to each other, and to weave the different strands into a coherent and defensible theory of constitutional adjudication.
[The Selfless Constitution] provides an innovative conceptual and theoretical framework which could help free us from the stranglehold of unhelpful concepts and dichotomies, and which is sure to stimulate further reflection and debate. It is compulsory reading for anyone working in the fields of constitutional law and constitutional theory. Readers who are not comfortable with the underlying pragmatist philosophy, who are not convinced by the critique of traditional understandings of selfhood, or who do not share the author’s optimism about the possibility of law-grounded processes of experimental learning and progress, will nevertheless find much on these pages that is helpful and insightful. The argument advanced in The Selfless Constitution is a complex one, and there were times that I wished that the author had introduced fewer theoretical perspectives, metaphors and examples. In the end, though, my irritation gave way to awe at the way in which he managed to pull the different strands of the argument – and the narrative – together. The book is written in an easy, engaging style, which helps to keep the reader interested. 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

Despite more than once describing his endeavour in The Selfless Constitution as modest, Stu Woolman sets himself the ambitious task of elucidating the foundations and purposes of the South African Constitution and critiquing the jurisprudence it has engendered. His multi-disciplinary discussion ranges over a great many themes and concepts, including ‘free will, consciousness, selfhood, social capital, spontaneous orders, nudges, flourishing, experimentalism, capabilities, participatory bubbles, reflexivity and rolling best practices’. Some of these ideas have appeared in Woolman’s previous work. Their elaboration, development and application to South African constitutionalism here, carried out with obvious relish, are to be … welcomed. … As well as being crammed with insights, memorable quotations and anecdotes, 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