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1 - The Politics of Legal Interpretation

from Part I - Introduction

Published online by Cambridge University Press:  09 July 2019

Stephan Stohler
Affiliation:
State University of New York, Albany
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Summary

I use a puzzling episode of judicial interpretation from South Africa to motivate the theoretical question about why judges sometimes alter their commitments to some legal interpretations but not others. I examine existing scholarship, which tends to portray judges as behaving in four distinct ways when engaged in legal interpretation: as guardians; as principled interpreters; as regime partners; or as strategic interpretors or deliberators. I argue that each of these portrayals falls short in explaining judges' shifting commitments to legal interpretation. Instead, I argue that judges are best understood as behaving as deliberative partners by combining key theoretical aspects of existing work into a novel theoretical position. I then outline the unique observable implications of each position and propose a fair test that examines judicial behavior in response to political parties' shifting stances on equality rights during key moments in Indian, South African, and American history.

Type
Chapter
Information
Reconstructing Rights
Courts, Parties, and Equality Rights in India, South Africa, and the United States
, pp. 3 - 28
Publisher: Cambridge University Press
Print publication year: 2019

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