Research Handbook on Law and Courts
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Research Handbook on Law and Courts

Edited by Susan M. Sterett and Lee D. Walker

The Research Handbook on Law and Courts provides a systematic analysis of new work on courts as governing institutions. Authors consider how courts have taken on regulating fundamental categories of inclusion and exclusion, including citizenship rights. Courts’ centrality to governance is addressed in sections on judicial processes, sub-national courts, and political accountability, all analyzed in multiple legal/political systems. Other chapters turn to analyzing the worldwide push for diversity in staffing courts. Finally, the digitization of records changes both court processes and studying courts. Authors included in the Handbook discuss theoretical, empirical and methodological approaches to studying courts as governing institutions. They also identify promising areas of future research.
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Chapter 6: Courts and transformative constitutionalism: insights from South Africa

Anthony C. Diala

Abstract

As apartheid ended in South Africa, the hope that its constitution would bring transformative change animated debates over the role of courts and assessment of their reasoning. Having emerged from an era of vicious inequality and discrimination, the Constitution symbolised a project for achieving positive social change based on a new political and moral legal foundation. This new foundation found expression in the idea of transformative constitutionalism. This chapter assesses how courts have explained selected decisions that raise transformative questions, including those around the death penalty, natural resources, employment equity, health care and marriage equality. While courts have extended rights, they have also stated concerns with budgets, or with conflicting concerns in public policy. This chapter suggest that all government organs should perceive constitutional values as the foundation for an egalitarian society, yardsticks for political accountability, and standards for transformative action.

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