The Selfless Constitution

Stu Woolman

Description

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.

Sujets

• Philosophie
• Philosophie politique
• Political
• POLITICAL SCIENCE
• PHILOSOPHY
• Politics of South Africa
• Politics
• Asian
• World
• LAW
• Construction

Informations

• Publié par: NISC (Pty) Ltd
• Date de parution: 28 juillet 2021
• Nombre de lectures: 5
• EAN13: 9781920033781
• Langue: English

Extrait

The Selfless Constitution: Experimentalism and Flourishing as Foundations of South Africa’s Basic Law
The Selfless Constitution: Experimentalism and Flourishing as Foundations of South Africa’s Basic Law
The Selfless Constitution: Experimentalism and Flourishing as Foundations of South Africa’s Basic Law
This edition published 2021
First edition published 2013 by Juta & Co [ISBN 978-1-4851-0007-2]
Text and the work copyright © the author 2021
All rights reserved. No part of this publication may be reproduced or transmitted in any form or by or by any means, electronic or mechanical, including photocopying, recording, any information storage or retrieval system, without the prior permission in writing of the publisher.
The author and the publisher have made every effort to obtain permission for and acknowledge use of copyright material. Should an inadvertent infringement of copyright have occurred, please contact the publisher and we will rectify omissions or errors in any subsequent reprint or edition.
Published in South Africa on behalf of the author by NISC (Pty) Ltd, PO Box 377, Makhanda, 6140, South Africa www.nisc.co.za
ISBN (print): 978-1-920033-77-4
ISBN (eBook): 978-1-920033-78-1
ISBN (pdf): 978-1-920033-79-8
Contents
Acknowledgements
Citations
Foreword to Reissued Edition
Preface
A. The Tale of Tiahuanaco
B. Waldron’s Wager
C. Deriving an Ought from an Is
D. A Tale Twice Told
Endnotes
Chapter One-A: The Basic Structure and the Methodology of the Argument
A. The Basic Thesis
B. Structure of the Text: The Self; the Social; the Constitutional
C. Epistemic Commitments: Self, Society and State as Natural Phenomena
D. Methodological Commitments: Intuition Pumps and Experimental Philosophy
1. Intuition Pumps
2. Experimental Philosophy and Empirical Philosophy
Endnotes
Chapter One-B: Why Rethinking the Foundations of South African Constitutional Law is Necessary
A. The ‘So What’ Question
1. How 19th Century Classical Liberalism Undercuts a 21st Century Aspirational Constitution
2. The Problem with the Folk Psychology of Freedom
3. Avoidance Gives Way to Empiricism
Endnotes
Chapter One-C: How Rethinking Our Understanding of the Self and the Social Services a Better Constitutional Theory
A. Aha Moments and Two Dominant Leitmotifs
1. The Unchosen Conditions of Being
2. Trial and Error and Feedback Mechanisms
B. Weaving Together the Dominant Leitmotifs throughout the Text
1. A Theory of the Self: Flourishing, Not Freedom
2. A Theory of the Social: Constraint, Friction and Change
3. A Theory of the Constitutional: Experimentalism & Flourishing
C. Connections that Hold This Book Together
1. Connections: Experimental Spaces
2. Connections: Experimental Competition
3. Connections: Experimental Selves
C. Tweaking Constitutional Doctrine: Constitutional Court Cases Revisited and Revised
Endnotes
Chapter Two: A Theory of the Self: Consciousness and Radically Heterogeneous Selves as Feedback Mechanisms
A. Free Will and Determinism: Their Connection to Social Theory and Constitutional Law
1. The Standard Metaphysical Case for Determinism and against Compatabilism
2. Experimental Epistemology
a. Some Philosophical Evidence against the Standard Account of Free Will
b. The Consequences, for the Self, of Abandoning Free Will
3 The Illusion of Volition
i. Libet’s and Walter’s Timing Experiments
ii. Wegner and Wheatley’s Experiments
iii. Tancredi’s Serial Killer and Retrospective Intent
B. Self and Consciousness
1. Traditional Views of the Self and Their Problems
a. My Cartesian Self
b. My Cartesian Theatre
C. Explaining (Away) the Self: Bundle Theory
D. Some Plausible Theories of Consciousness and the Self
1. The Proto-Self, the Core Self and the Autobiographical Self
2. Global Neuronal Workspace Theory
a. Baars’ Global Workspace Theory
b. Dehanne and Naccache’s Global Neuronal Workspace Theory
3. Dennett’s Self as a Centre of Narrative Gravity
E. Selves and Heterogeneity
1. Socially, Radically Heterogeneous, Determined Selves
2. Naturally, Radically Heterogeneous Determined Selves
3. What a ‘Free’, ‘Conscious’ Self Is
F. A Chastened Account of Freedom, Consciousness and Selfhood
1. Consciousness, Selves and Error Correction
2. A Chastened, Forward-looking Account of Freedom and the Role of Trial and Error
G. Consciousness and Constitutional Doctrine: Freedom as Political, not Metaphysical
H. The New Mysterians: The Claim that Consciousness Cannot Explain Itself
I. Consciousness as a Feedback Mechanism for Error Correction that Enhances Freedom qua Flourishing
1. Trial and Error in Video Games
2. Trial and Error in Driving
3. Trial and Error in Spelling
4. Trial and Error in Music
Endnotes
Chapter Three: A Theory of the Social: Constraint, Friction & Change
A. Introduction
1. Unchosen Conditions of Being and Constitutive Attachments
2. Social Capital: How Associations and Networks Function
B. Descriptions of Several Social Feedback Systems
1. Spontaneous Orders
2. Mill’s Experiments in Living
a. Mill and the Limits of Private Ordering
b. From Private Ordering to Experimentalism
3. Evolutionary Epistemology
4. Limits of Evolutionary Epistemology & Spontaneous Orders
C. Better Descriptions and Prescriptions for the Social: Experimentalism in State Policy
1. Choice Architecture
a. Cognitive Biases in Deliberative Practices
b. Overcoming Cognitive Biases
2. The Virtues (and Vices) of Social Capital: Using Bonding Networks and Bridging Networks to Foster Change
3. Radically Heterogeneous Selves and Societies as Engines for Change
D. Shared Consciousness and Feedback Mechanisms
1. Psychotherapy
2. Legal Practice and Legal Theory
3. Golf Instruction
4 Corporations and Climate Change
Endnotes
Chapter Four: A Theory of the Constitutional: Experimental Constitutionalism
A. Philosophical Foundations
B. Basic Facets of Experimental Constitutionalism
1. Shared Constitutional Interpretation
2. Participatory Bubbles
3. Truth Propositions in Radically Heterogeneous Constitutional Orders
4. Chastened Deliberation
5. Destablization Rights
6. The Disentrenchment of Private Ordering through Remedial Equilibration
7. Reflexivity and Optimality
8. Flattened Hierarchies Rather than Top-Down Command and Control
C. Potential Limits of Experimental Constitutionalism in South Africa
1. Institutional Undercapacity
2. Traditional Forms of Life and Radical Reformation
D. Normative Content of Experimental Constitutionalism
1. On Flourishing
2. On the Relationship Between Flourishing and Experimentalism
E. Emergent Experimentalist Government, Information Pooling and Rolling Best Practices in the United States
1. Educational Reform
2. Family Courts and Child Welfare Agencies
3. Drug Treatment Courts
Endnotes
Chapter Five: Experimental Constitutionalism in South Africa: Institutions and Doctrines
A. The South African Constitution as an Experimental Constitution
B. Shared Constitutional Interpretation: Design & Doctrines
1. Limitations Analysis
a. Theory
b. Practice
2. The Principle of Democracy and its Relationship to Rights Interpretation
3. Socio-Economic Rights
4. Chapter 9 Institutions
a. Auditor-General
b. Public Protector
c. Complementarity, Reflexivity and Inclusivity in Constitutional Norm Generation by Chapter 9 Institutions
5. Provincial Constitutions
C. Participatory Bubbles
1. Remedies
a. Theory
b. Practice
2. Rules and Procedures in Constitutional Matters
3. Costs
4. Constitutional Jurisdiction
5. Public Participation in Law-Making
6. Chapter 9 Institutions
Endnotes
Chapter Six: Experimental Constitutionalism in South Africa: The Evolution of Law and Policy in Housing & Education
A. Introduction
B. Experimental Constitutionalism in South African Housing Law and Policy
1. Grootboom and the Reconstruction and Development Programme
2. An Immediate Critique of Grootboom
3. Breaking New Ground: The Reformation of Housing Policy in Light of Grootboom
4. The Constitutional Court’s Novel Commitment to Meaningful Engagement
5. Two Unintended Consequences of Meaningful Engagement
C. Experimentalism and Flourishing in South African Education Law and Policy
1. The State’s Consciously Experimentalist Approach to Education Law and Policy
2. Constitutional and Statutory Norms regarding Linguistic and Cultural Autonomy in Public Schools and Private Schools
a. The Basic Framework
b. Government Efforts to Control Private Power and to Eliminate De Facto Racially, and Exclusionary Language Policies in Public Schools
2. School Governing Bodies as a Flexible, Reflexive Form of Government
a. Democracy and Education and Experimentalism
b. Are SGBs Flexible, Polycentric Sites of Emergent Experimental Decision-Making?
i. SGBs as Emergent, Experimental Institutions
a. Inclusion
b. Decision-Making: Shared Powers of Interpretation
c. Forms of Participation, and Forms of Participants
d. Experimentation with Polycentric Participation in SGBs
c. Does the Evidence Support SGBs as an Emergent Experimental Institution?
1. The Cartesian Error as Manifest in Political and Social Experimentation .
2. The Desire to Experiment, the Ability to Experiment, and the Experiments Carried Out by National Government, Provincial Government and SGBs
3. The Tension between Politics and Experimentalism
c. Polycentricity, Participatory Bubbles, Shared Constitutional Interpretation and the Right to a Basic Education in the Province of the Eastern Cape
Endnotes
Chapter Seven: Flourishing and Fundamental Rights under the South African Constitution
A. Flourishing Roughly Defined
1. Experimentalism for Whom and for What?
2. Social Democracy and Experimentalism
3. Two Modern (Covalent) Definitions of Flourishing: Development and Capabilities
B. Flourishi