Demosprudence in comparative perspective.

AuthorRay, Brian
  1. INTRODUCTION II. DEMOSPRUDENCE DEFINED A. Guinier's and Torres' Definitions B. Demosprudence and the Liberal Constitutional Renaissance C. Demosprudence and Epp's Rights Revolution D. Demosprudence and Weak-Form Review III. THE DEBATE OVER DEMOSPRUDENCE A. Rosenberg, Romance and the Relevance of Supreme Court Opinions B. Rights Consciousness and Intellectual Entrepreneurs 1. McCann and the Pay Equity Reform Movement 2. Teles's Intellectual Entrepreneurs C. Legitimacy and Positivity Theory IV. DEMOSPRUDENCE IN SOUTH AFRICA A. Pragmatism and Principle on the Constitutional Court B. Demosprudence in the Socioeconomic Rights Cases 1. The Treatment Action Campaign Case 2. Weak-Form Review in Grootboom 3. Port Elizabeth and Courts as Managers of a "Stressful, Law-Governed Social Process" 4. Olivia Road and Engagement as a Demosprudential Remedy C. The Demosprudential Continuum 1. Fourie, Gay Marriage and Law as a "Great Teacher" 2. Doctors For Life, Matatiele and Participatory Democracy V. IMPLICATIONS OF THE COURT'S DEMOSPRUDENTIAL APPROACH A. Demosprudence as a Tool to Create Positivity Bias; Or "'to Know' Courts [and Constitutions] is 'to Love Them'" B. Demosprudential Effects: Shack-Dweller Movements in South Africa as a Response to Grootboom I. INTRODUCTION

    Lani Guinier and Gerald Torres recently coined the term demosprudence to define legal practices that specifically target social movements and attempt to catalyze legal change (including constitutional change) through such movements. (1) Although their definition appears to allow for a wide range of lawmaking activity to fit within the rubric of demosprudence, in their initial work developing the concept both Guinier and Torres focus specifically on examples from the United States Supreme Court. Indeed, Guinier's most developed account of demosprudence is devoted to the very specific practice of oral dissents. (2)

    Demosprudence has sparked a debate even in its early stages of development. Gerald Rosenberg has criticized demosprudence in general, and Guinier's account of oral dissents as a demosprudential device in particular, in a recent article that was part of an entire panel devoted to the concept and published as part of a symposium by the Boston University Law Review. In essence, Rosenberg's critique is that political science literature has consistently shown that court decisions--even controversial majority opinions like Roe v. Wade, (3) much less oral dissents--generally have very little effect on social movements, except in very narrow circumstances, and the effect is minor compared with other influences on such movements. (4)

    In that same issue, Guinier and Robert Post respond directly to Rosenberg. (5) Frederick Harris, a political scientist, offers a preliminary analysis of the precise mechanism through which oral dissents may influence social movements that can be viewed as at least a partial response to Rosenberg, (6) and Linda McClain connects demosprudence to several other literatures that examine the relationship between court rulings and social change. (7)

    This article critically examines the debate over demosprudence. It adopts a comparative--specifically South African--perspective to consider what it means for a court to act demosprudentially and why the practice may have particular value in developing democracies like South Africa. Guinier connects demosprudence (8) to the broader concept of democratic constitutionalism developed by Reva Siegel and Robert Post. (9) Democratic constitutionalism in turn is part of what Jack Balkin describes as "a renaissance of liberal constitutional thought that has emerged in the last five years." (10) This renaissance is characterized by three major themes: constitutional fidelity, democratic constitutionalism, and redemptive constitutionalism. (11) All three themes are connected by the notion that "[o]rdinary citizens, social movements and political parties make claims on the Constitution, arguing what the Constitution truly means, and calling for its restoration and its redemption." (12) This article identifies examples from the South African Constitutional Court's jurisprudence that reflect a demosprudential approach and the themes identified by Balkin to argue that demosprudence is a key feature of the Court's approach to adjudication and part of a self-conscious effort by the Court to develop and enforce constitutional norms through non-judicial channels and mechanisms.

    The South African Constitutional Court is a relative infant compared to the United States Supreme Court, and judicial review is a new concept in a judicial system historically characterized by a particularly strong form of parliamentary sovereignty, especially during the apartheid era. (13) As a result, the Court has been much more self-conscious in developing its role within the new democracy that was created in 1995 with the fall of apartheid. A major component of this self- consciousness has been deliberate and specific attempts to incorporate other actors--not only the political branches--but also civil society more generally into the process of constitutional development. (14)

    The Court's more self-conscious attempts to develop a demosprudential approach, offers lessons for theorists in the U.S. and elsewhere like Guinier who seek to develop prescriptions for encouraging courts to act more demosprudentially more often. (15) It also offers a context-specific response to Rosenberg's critique of demosprudence by connecting demosprudential judging to theories of democratization and constitutionalization.

    Part II of this Article outlines Guinier's and Torres' definition of demosprudence and traces the connections between demosprudence and four distinct but related literatures. First it draws connections with Balkin's liberal constitutional renaissance, and within that, Siegel's and Post's concept of democratic constitutionalism. Second, it shows that both demosprudence and democratic constitutionalism have strong affinities with Charles Epp's support- structure explanation for the emergence of constitution-based rights revolutions in several societies. (16) Finally, this section discusses the relationship between demosprudence's emphasis on non-judicial legal change and the literature on alternative forms of judicial review that create dialogic relationships between courts and other branches of government.

    Part III addresses the debate over demosprudence. After summarizing Rosenberg's objections and the responses from Guinier and Post, this section draws on the social-science studies cited by Rosenberg to argue that the strong version of Rosenberg's argument--that the language of court opinions do not matter to social movements--is inconsistent with his own evidence. It connects those studies to Stephen Teles' concept of intellectual entrepreneurs to argue that demosprudential opinions can either play a role similar to an intellectual entrepreneur by providing a theoretical framework for social-movement activity or as the raw material for intellectual entrepreneurs to develop such frameworks. (17)

    This section then uses a series of public opinion surveys of South Africans' views of the Constitutional Court by James Gibson and Gregory Caldiera to develop a specifically South African response to Rosenberg. Drawing on Gibson's positivity theory--that exposure to courts and court symbols can stimulate respect for constitutions and courts--this section argues that the Constitutional Court's demosprudential approach is a mechanism for developing a constitutionalist culture in post-apartheid South Africa. (18)

    Part IV traces the demosprudential aspects of the Constitutional Court's jurisprudence through several lines of cases. It opens with a discussion of Theunis Roux's recent assessment of the Court's approach as a mix of pragmatism and principle. (19) In Roux's view, the Court is generally able to take a strong stance on constitutional principle only where external political forces are aligned with the result. (20) I first argue that recognizing the demosprudential strain in the Court's approach provides a different explanation for these apparently politically motivated results. I then use Roux's discussion as both a framework and a foil to work through the cases in which the Court has adopted a demosprudential approach.

    Part V considers two important implications for the Constitutional Court's demosprudential approach. It first circles back to Gibson's positivity theory and explains how the demosprudential examples just described can help build support for both the Court and the constitution more generally. It then examines the emergence of several shack-dwellers'-rights movements following the Court's first housing-rights case and argues that these movements offer anecdotal evidence that a demosprudential approach can stimulate social movement activity. Recognizing the force of Rosenberg's objection that such causal claims are ultimately empirical, it then proposes further research to assess the relationship between these groups and the Court's judgments.

  2. DEMOSPRUDENCE DEFINED

    1. Guinier's and Torres' Definitions

      Guinier defines demosprudence as "a lawmaking or legal practice that builds on the collective wisdom of the people. It focuses on the relationship between the lawmaking power of legal elites and the equally important, though often undervalued, power of social movements or mobilized constituencies to make, interpret, and change law." (21) Her co-author, Gerald Torres, further explains that demosprudence is "the jurisprudence of social movements which means that it is a call for:

      [n]ew forms of representation (or criteria for power-sharing relationships) that ensure that the power shifts are not just pendulum swings between two different groups of elite actors (from the business elite to the academic elite or from the conservative think tankers to the liberal ones) but change that actually bring the voices and...

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