Reconstructing Rights
Courts, Parties, and Equality Rights in India, South Africa, and the United States

Shows how judges work in a deliberative fashion with aligned political parties to re-interpret legal and constitutional text.

Stephan Stohler (Author)

9781108493185, Cambridge University Press

Hardback, published 18 July 2019

280 pages, 2 b/w illus. 21 tables
23.5 x 15.6 x 2 cm, 0.54 kg

'… Stohler provides a compelling argument for recognizing and understanding constitutional interpretation through the lens of deliberative partnerships. It is well-researched and well-written with a rich body of evidence that I strongly recommend for scholars and students in political science and law, particularly those concerned with questions of interbranch relationships, constitutional interpretation, and comparative studies.' Allyson C. Yankle, Law and Politics Book Review

Judges often behave in surprising ways when they re-interpret laws and constitutions. Contrary to existing expectations, judges regularly abandon their own established interpretations in favor of new understandings. In Reconstructing Rights, Stephan Stohler offers a new theory of judicial behavior which demonstrates that judges do not act alone. Instead, Stohler shows that judges work in a deliberative fashion with aligned partisans in the elected branches to articulate evolving interpretations of major statutes and constitutions. Reconstructing Rights draws on legislative debates, legal briefs, and hundreds of judicial opinions issued from high courts in India, South Africa, and the United States in the area of discrimination and affirmative action. These materials demonstrate judges' willingness to provide interpretative leadership. But they also demonstrate how judges relinquish their leadership roles when their aligned counterparts disagree. This pattern of behavior indicates that judges do not exercise exclusive authority over constitutional interpretation. Rather, that task is subject to greater democratic influence than is often acknowledged.

Part I. Introduction: 1. The politics of legal interpretation
Part II. United States of America: 2. Equality rights in American education and public spending
3. Equality rights in American employment
4. Equality rights in American representation
Part III. India: 5. Equality rights in Indian employment
6. Equality rights in Indian education
Part IV. South Africa: 7. Equality rights in South Africa
Part V. Conclusion: 8. Conclusion
Bibliography
Index.

Subject Areas: Criminal law & procedure [LNF], Local government law [LNDU], Judicial review [LNDM], Government powers [LNDH], Constitutional & administrative law [LND], Comparative law [LAM], Political corruption [JPZ], Comparative politics [JPB]