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1 results

  • 1 - The Politics of Legal Interpretation

  • from Part I - Introduction
  • Stephan Stohler, State University of New York, Albany
  • Book:
    Reconstructing Rights
    Published online:
    09 July 2019
    Print publication:
    18 July 2019, pp 3-28

  • 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.