ABSTRACT
Social and economic rights (SER) adjudication is an ever more common feature of rights-protecting democracies. This chapter explores whether the democratic experimentalist approach succeeds in delivering a realizable, democratic model for SER adjudication. 'Democratic experimentalism' has been advanced as a new paradigm of institutional thinking about democracy and law. Democratic experimentalism adds new approaches to the existing responses to the problem of unrepresented absentees, such as class actions and amici curiae. South Africa's developing SER jurisprudence exhibits features that reflect a dialogic, deliberative approach to adjudication. To the normative weakness objection must be added the concern, acknowledged by its proponents, that many central tenets of democratic experimentalism contain built-in structural biases that systematically advantage the strong and disadvantage the weak. Democratic experimentalism relies on strong forms of political organization while removing the grounds of oppositional, contentious politics on which social movements often depend.
