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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.

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Chapter
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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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