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. 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 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.
This article critically examines the debate over demosprudence. It first outlines the concept of demosprudence and connects it to several related literatures, including Jack Balkin’s liberal constitutional renaissance and Reva Siegel’s and Robert Post’s concept of democratic constitutionalism. It then develops an extended response to Rosenberg’s critique. Finally, 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.
- participatory democracy,
- south africa
Available at: http://works.bepress.com/brian_ray/4/