Book Review: The Selfless Constitution: Experimentalism and flourishing as foundations of South Africa's basic law

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Author: Henk Botha
• Pages: 225-229
• Date: 16 August 2019

225

BOOK REVIEWS / BOEKRESENSIES

The Seless Constitution: Experimentalism and Flourishing as

Foundations of South Africa’s Basic Law by S Woolman. Juta & Co

Cape Town 2013. xv & 632 pp. ISBN 9781485100072. Price R395.00

(soft cover)

Stu Woolman’s new book is an ambitious work, which expounds a theory

of constitutionalism which brea ks with traditional understa ndings of the self,

the social and constitut ional law, and seeks to rec onceive them in a number of

ways. This it does by drawing on a wide variety of scientic elds, theoretical

endeavours, analogies and meta phors. To mention but a few examples: global

neuronal workspace theor y and experi mental philosophy are enli sted to

problematise and point beyond metaphysical conception s of selfhood and

individual free dom; the notions of feedback mechanisms, choice architecture

and social capital are employed to rethi nk the social and the possibil ity of

social change; and concepts such as shar ed constitutional i nterpretat ion and

participator y bubbles are developed as a way out of the stale oppositions that

tend to character ise constitutional thought. Th roughout, the author takes great

pains to relate these diverse c oncepts and theories to each other, and to weave

the different stra nds into a coherent and defensible theor y of constitutional

adjudication.

The rst part of the a rgument centres on a critique of the assumption

that the individual self is u nitary a nd coherent and shapes her own des tiny

in a conscious, rational ma nner. According to the author, this conce ption of

the self is r mly entrenched in folk psychology and has roots in outmoded

metaphysical understand ings of volition and freedom. To this he juxtaposes

the more constraine d and fragmente d understand ing of the self that emerges

from contemporar y studies in di sciplines ranging f rom neurological studies

to social theory. These stud ies suggest that the indiv idual possesses far less

freedom than is com monly supposed, and t hat traditional not ions of the self

radically underest imate the extent to which the self is conditioned by cultur al

givens and social practices. However, these outmoded u nderstandi ngs are

far from dead, and t he author argues that t heir tenacious hold is visible in

a number of judgments. For example, S v Jordan 2002 6 SA 642 (CC) is

critiqued for its commitment to metaphysical notions of autonomy which

preclude an understa nding of the extent to which sex workers’ alternatives are

dramatically rest ricted by a social context of poverty and exploitation. Prince

v President, Cape Law S ociety 2002 2 SA 794 (CC) is similarly criticise d for

its overemphasis on the choice made by Rastafa rians, and its disregard for the

“arational, constit utive attachments t hat form the better pa rt of our identity”

(118) .

Following from this crit ique, the author p roposes a conce ption of human

ourishing which, he argues, is central to the Constitution of the Republic

of South Africa, 1996 (“the Constit ution”). Unlike metaphysical notions

of freedom, this vision of ourishing attaches great impor tance to the

(2014) 25 Stell LR 225

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