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Dissertations / Theses on the topic 'Critical legal theory'
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1
Shen, Phoebe. "A Critical Race Theory Intervention into the Cultural Defense Debate." Scholarship @ Claremont, 2017. http://scholarship.claremont.edu/scripps_theses/911.
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The cultural defense is an informal term that describes the use of cultural information to mitigate criminal responsibility, often used in conjunction with traditional defense strategies such as provocation or insanity. Arguments for the cultural defense include respecting cultural practices under the liberal narrative that frames the United States as a multicultural and pluralistic society. Advocates of the cultural defense recognize the harmful effects of the false universalism of the law. However, the cultural defense has been criticized as essentialist and harmful as it has been used in high profile cases to justify violence against women of color. The cultural defense superficially prioritizes the needs of marginalized communities by acknowledging the importance of culture in the administration of the criminal law. The rationale behind the cultural defense is politically appealing, but the impacts of the defense are incompatible with the goals of antisubordination, which will be further described by Critical Race Theory. Because the debate surrounding the cultural defense has yet to make significant advances, I argue that Critical Race Theory offers an essential starting point in intervening in the debate, ultimately transforming the realm of legal jurisprudence through its explicit race consciousness and examination of racialized power. In particular, I will examine the concepts of intersectionality and interest convergence which will offer valuable perspective into the cultural defense debate.
2
Ben-Dor, Oren Isaac Moshe. "Constitutional limits and the public sphere : a critical study of Bentham's legal and constitutional theory." Thesis, University College London (University of London), 1997. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.266077.
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Merino, Roger. "Law as field of critique and power. The politics of legal theory from Latin America." Derecho & Sociedad, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/117292.
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The dominant theoretical frameworks that define the ontological and epistemological limits of legal theory have marginalized or excluded alternatives visions on justice and social organization. Moreover, and in spite of being deeply embedded in specific political and ideological matrix, these frameworks have attempted to obscure the role of the political in the definition of its conceptual basis. The theoretical perspective that is developed in this article - and that is part of a long tradition of critical theories (in plural) - seeks to reveal the deep relation between Law and Politics and reformulate it analytically in order to propose a broad vision of the legal theory from Latin America.<br>Los marcos teóricos dominantes que definen los límites ontológicos y epistemológicos de la teoría legal han marginalizado o excluido visiones alternativas sobre la justicia y la organización social. Además, y a pesar de estar profundamente arraigados a una matriz política e ideológica determinada, estos marcos teóricos han pretendido oscurecer el rol de lo político en la definición de su base conceptual. La perspectiva teórica que se desarrolla en el presente artículo, y que es parte de una larga tradición de teorías críticas (en plural), busca revelar la profunda relación entre el Derecho y la Política, y reformularla analíticamente para proponer una visión amplia sobre la teoría legal desde América Latina.
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Ball, Matthew J. "A 'deleterious' effect? : Australian legal education and the production of the legal identity." Thesis, Queensland University of Technology, 2008. https://eprints.qut.edu.au/28601/1/Matthew_Ball_Thesis.pdf.
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A body of critical legal scholarship argues that, by the time they have completed their studies, students who enter legal education holding social ideals and intending to use their legal education to achieve social change, have become cynical about the ability of the law to do so and no longer possess such ideals. This is explained by critical scholars to be the result of a process of ideological indoctrination, aimed at ensuring that graduates uphold the narrow and conservative interests of the legal profession and capitalist society, being exercised by law schools acting as adjuncts of the legal profession, and exercised upon the passive body of the law student.
By using Foucault’s work on knowledge, power, and the subject to interrogate the assumptions upon which this narrative is based, this thesis intends to suggest a way of thinking differently to the approach taken by many critical legal scholars. It then uses an analytics of government (based on Foucault’s notion of ‘governmentality’) to consider the construction of the legal identity differently. It examines the ways in which the governance of the legal identity is rationalised, programmed, and implemented, in three Queensland law schools. It also looks at the way that five prescriptive texts to ‘surviving’ law school suggest students establish and practise a relation to themselves in order to construct their own legal identities.
Overall, this analysis shows that governance is not simply conducted in the profession’s interests, but occurs due to a complex arrangement of different practices, which can lead to the construction of skilled legal professional identities as well as ethical lawyer-citizens that hold an interest in justice. The implications of such an analytics provide the basis for original ways of understanding legal education, and legal education scholarship.
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Ball, Matthew J. "A 'deleterious' effect? : Australian legal education and the production of the legal identity." Queensland University of Technology, 2008. http://eprints.qut.edu.au/28601/.
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A body of critical legal scholarship argues that, by the time they have completed their studies, students who enter legal education holding social ideals and intending to use their legal education to achieve social change, have become cynical about the ability of the law to do so and no longer possess such ideals. This is explained by critical scholars to be the result of a process of ideological indoctrination, aimed at ensuring that graduates uphold the narrow and conservative interests of the legal profession and capitalist society, being exercised by law schools acting as adjuncts of the legal profession, and exercised upon the passive body of the law student.
By using Foucault’s work on knowledge, power, and the subject to interrogate the assumptions upon which this narrative is based, this thesis intends to suggest a way of thinking differently to the approach taken by many critical legal scholars. It then uses an analytics of government (based on Foucault’s notion of ‘governmentality’) to consider the construction of the legal identity differently. It examines the ways in which the governance of the legal identity is rationalised, programmed, and implemented, in three Queensland law schools. It also looks at the way that five prescriptive texts to ‘surviving’ law school suggest students establish and practise a relation to themselves in order to construct their own legal identities.
Overall, this analysis shows that governance is not simply conducted in the profession’s interests, but occurs due to a complex arrangement of different practices, which can lead to the construction of skilled legal professional identities as well as ethical lawyer-citizens that hold an interest in justice. The implications of such an analytics provide the basis for original ways of understanding legal education, and legal education scholarship.
6
Hope, Daniel. "Social and Political Discourse in America: The Civil Republican Revival in American Legal Theory and the Critical Theory of Jurgen Habermas." Oberlin College Honors Theses / OhioLINK, 1993. http://rave.ohiolink.edu/etdc/view?acc_num=oberlin1503322236098925.
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Arntson, Margaux. "A Critical Analysis of Humanitarian Intervention as a Source of Reputational Credibility." Scholarship @ Claremont, 2018. http://scholarship.claremont.edu/cmc_theses/1958.
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Since his election into office, a cloud of uncertainty has surrounded President Trump’s foreign policy ambitions. Much of today’s scholarship concerns its unpredictable nature and scope. President Trump, like previous presidents who have come before him, entered office with very little foreign policy experience. A key feature of his non-principled, fast-alternating foreign policy is that few people know exactly what he is going to propose next in terms of his international strategy. Coupled with this strategy is Trump’s desire for international credibility and a strong reputation. This desire seems fundamentally at odds with his foreign policy strategy, as Trump proposes isolationist measures and countries learn to fear his foreign policy’s unpredictability.
This paper aims to take a critical look at the role of humanitarian intervention in a country’s foreign policy. It analyses whether countries like the United States can successfully introduce humanitarian intervention as a successful foreign policy prescription. More specifically, it aims to answer the following research question: is it possible for the United States to reclaim its founding values through intervention in humanitarian crises without hindering the country’s military credibility?
This paper first proposes theory, then aims to cement that theory in a real-world scenario through the analysis of a specific case study. It uses a combination of primary sources, secondary sources, and more qualitative methods of data gathering to deeply analyze the relationship between humanitarian intervention, military credibility, and the United States’ founding values. It then goes on to critically analyze the application of these findings to the genocide currently occurring in West Sudan.
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Henry, Daniella. "Reimagining Potential Life: A Socialized Right to Reproductive Freedom." Scholarship @ Claremont, 2019. https://scholarship.claremont.edu/scripps_theses/1370.
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A more conservative supreme court will likely have the chance to overrule Roe v. Wade. Many states have passed heartbeat laws that will probably be taken all the way to the supreme court, these cases will ask the supreme court to affirm fetal personhood, giving fetuses a constitutionally recognized right to due process and making abortion illegal. In this thesis, I will defend an expansion of protections for pregnant peoples through a socialized right to abortion.
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Macduff, Anne. "Advance Australia Fair? Citizenship Law, Race and National Identity in Contemporary Australia." Phd thesis, Canberra, ACT : The Australian National University, 2017. http://hdl.handle.net/1885/133589.
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Although the ‘White Australia policy’ was officially rejected
over 40 years ago, this thesis argues that it continues to
influence notions of belonging in Australia today. While racial
exclusion from the national community was once achieved through
discretionary mechanisms embedded in migration laws and policy,
today, it is achieved through Australian citizenship laws and
policy.
This thesis critically examines the package of law reforms
introduced in 2007, which subsequently became the Australian
Citizenship Act 2007 (Cth) (‘ACA’). It explores the extent to
which Australian citizenship law enables or limits culturally
diverse expressions of belonging in a liberal, multicultural and
democratic nation. The thesis is underpinned by a critical race
theory approach, which understands the relationship between law
and culture as mutually constitutive. That is, it sees the law as
not only reflecting social norms but participating in their
production and reinforcement. The thesis draws out ways that
Australian citizenship laws mobilise narratives of belonging
which construct a racialised Australian national imaginary.
Using a range of interdisciplinary approaches (including legal
analysis, Critical Discourse Analysis and critical legal
geography), the thesis identifies and analyses narratives about
belonging circulating in three significant fields of public
discourse; legal, political and media discourse. It argues that
these public discourses articulate the meaning of the legal
status of citizenship through racially exclusionary narratives
about Australian values and an ‘Australian way of life’.
The thesis argues that Australian citizenship law is an
increasingly important site used to produce and sustain a
racially exclusionary national imaginary. It analyses how
narratives about Australian citizenship status are increasingly
articulated in opposition to migrants generally, but the Muslim
Other in particular. These racialised narratives of belonging are
conveyed through decisions made under the ACA. Having identified
how the law mobilises narratives which produce and sustain a
White national imaginary, Judith Butler’s theory of
performativity is used to identify some possible citizenship
counter-narratives.
It concludes that, contrary to official statements, Australian
citizenship status does not facilitate an inclusive notion of
national belonging. Instead, it is a mechanism that produces and
sustains a White national imaginary.
10
Corcodel, Veronica. "Modern law and otherness : the dynamics of inclusion and exclusion in comparative legal thought." Thesis, Paris, Institut d'études politiques, 2015. http://www.theses.fr/2015IEPP0053.
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Cette thèse porte sur la pensée juridique des comparatistes euro-américains. Elle analyse les travaux d’un nombre important de comparatistes, qui ont eu une place significative au sein de la discipline en Europe et aux Etats-Unis entre les années 1860 et le début des années 2000. En examinant les représentations du monde non-occidental, elle met en avant les tensions entre l’inclusion et l’exclusion des spécificités non-occidentales, tout en insistant sur la nécessité de développer une pratique critique de résistance. En s’inspirant des théories postcoloniales, ce travail aborde les questions suivantes: comment le savoir sur les sociétés non-occidentales est-il construit dans la pensée juridique des comparatistes euro-américains ? Quelles sont les préconceptions qui facilitent la production de ce savoir ? Quel est le fondement théorique qui anime ces constructions et quelles sont leurs implications politiques ? Dans quelle mesure la pensée juridique comparative alimente-t-elle les attitudes de domination ou bien les remet-elle en question ? De quelle manière les réponses à ces questions sont-elles reproduites ou modifiées d’une époque à l’autre, d’un auteur à l’autre ?<br>This dissertation focuses on Euro-American comparative legal thought. It analyses the works of an important number of comparatists operating in Europe and in the United States, roughly from the 1860s to the early 2000s. Examining their representations of non-Western societies, it puts emphasis on the tensions between inclusion and exclusion of particularism and it argues in favor of a critical praxis of particularism. Inspired from postcolonial theories, it addresses the following questions: how are non-Western societies constructed in Euro-American comparative legal thought? What are the preconceptions that make the production of such knowledge possible? What is the theoretical framework that animates these constructions and what are their political implications? What elements internal to comparative legal knowledge fuel attitudes of domination or/and challenge them? How do they change and how are they reproduced from one epoch to another, from one author to another?
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Caudill, David S. "Law on the analyst’s couch?: the uses of psychoanalytic theory in contemporary U.S. scholarship." Pontificia Universidad Católica del Perú, 2016. http://repositorio.pucp.edu.pe/index/handle/123456789/115340.
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In the U.S. legal context, psychoanalysis is viewed by most scholars (and most judges) as outdated, even unscientific, and there is little room for psychoanalytic expertise in U.S. courts of law. However, there are some scholars who continue to do theoretical work in the conventional Freudian tradition, as well as numerous critical legal theorists who have appropriated the psychoanalytic conceptions of Jacques Lacan in their critiques of the law. This is a brief survey of how these scholars conceive of the law in psychoanalytic terms. Is it the judge being analyzed? Is it the lawyers, or the law students? Is the law itself viewed as subject with an unconscious and with symptoms? Or is it an analysis of legal texts as having an unconscious dimension that is hidden like an ideology? I identify examples of all four frameworks, and conclude that these scholars, notwithstanding their theoretical orientation, have practical goals for law in mind.<br>En el contexto jurídico de los Estados Unidos, el psicoanálisis es visto por la mayoría de académicos (y jueces) como anticuado, incluso anticientífico, y hay poca cabida para el conocimiento psicoanalítico en los tribunales de justicia estadounidenses. Sin embargo, hay algunos académicos que continúan realizando labor teórica en la tradición convencional freudiana, así como numerosos teóricos críticos del derecho que han adoptado la visión psicoanalítica de Jacques Lacan en sus críticas al derecho. Este es un breve estudio de cómo dichos académicos conciben el derecho en términos psicoanalíticos. ¿Se está analizando al juez? ¿O se está analizando a los abogados, o a los estudiantes de derecho? ¿Se percibe el derecho en sí como un paciente con subconsciente y con síntomas? ¿O se está analizando los textos jurídicos como textos que poseen una dimensión inconsciente, como una ideología? En este ensayo identifico ejemplos de los cuatro contextos y concluyo que estos académicos, a pesar de su orientación teórica, tienen metas prácticas para el derecho en mente.
12
Graef, J. Julian. "Practicing peacebuilding differently : a legal empowerment project, a randomised control trial and practical hybridity in Liberia." Thesis, University of St Andrews, 2014. http://hdl.handle.net/10023/6384.
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Hybridity, as it is currently understood in the Peace and Conflict Studies (PCS) and International Relations (IR) literature, is defined by the complex interactions between ‘the liberal peace' and ‘the local'. However, under this theoretical liberal-local rubric, the ways in which power is practiced has already been determined; how resistance is expressed and the forms it assumes have already been established. While it has yielded numerous important insights into how power circulates and resistance manifests in peacebuilding operations, the theoretical approach conceals other significant dynamics which escape detection by ‘the liberal peace' and ‘the local'. However, these undetected dimensions of hybridity comprise the very processes that emerge in ways which destabilise the boundaries between ‘the liberal peace' and ‘the local' and reshape the contours of the emerging post-liberal peace. Instead of accepting the liberal-local distinction which defines this theoretical hybridity, this thesis advances an alternative methodological approach to exploring the tensions at play in peacebuilding projects. Rather than deploying theoretical distinctions in order to explain or understand complex hybrid processes, this thesis develops a methodological strategy for exploring the tensions between how actors design a peacebuilding project and how that project changes as actors work to translate that project into complex, everyday living sites (Callon, 1986; Law, 1997; Akrich, 1992). This tension is expressed as practical hybridity. The process of practical hybridity unfolds as the concrete material changes, modifications, and adaptations that emerge as actors appropriate and contingently translate organised practices in new ways and for different purposes. Through an ongoing process of practical hybridity, the boundaries and distinction which define the distinction between ‘the liberal peace' and ‘the local' become increasingly unstable. Amidst this instability, the practices which characterised ‘the liberal peace' are becoming stretched into a post-liberal peace. Drawing on the work of Richmond (2011a; Richmond & Mitchell, 2012), Latour (1987b; 1988; 2004), and Schatzki (2002), and based on over five months of field research, this this thesis traces the process of practical hybridity at play during the implementation and evaluation of a peacebuilding project in Liberia. I participated as a research assistant on a Randomised Control Trial (RCT), implemented by a small research team under the auspices of the Oxford University's Centre for the Study of African Economies (CSAE). The team was assessing the impact of a legal empowerment programme managed by The Carter Center: the Community Justice Advisor (CJA) programme. As the CSAE's evaluation of the CJA programme unfolded, many dynamics associated with theoretical liberal-local hybridity surfaced; however, it also became apparent that this theoretical formulation obscured important dimensions which were reshaping what peacebuilding practice is in the process of becoming in the emerging post-liberal world.
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Ross, Annie Elizabeth. "Wrongful Convictions as a Result of Public Defender Representation." Digital Commons @ East Tennessee State University, 2010. https://dc.etsu.edu/etd/1761.
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Our criminal justice system works very hard to prevent criminals from harming other individuals; however, unfortunately mistakes happen. One wrongful conviction is one too many. There are multiple factors that can be assumed to be the cause of wrongful convictions. However, due to the lack of directly related research, the determents are not well established. The following research addresses wrongful convictions as a result of public defender representation. Through the process of theory construction, the research uses critical race theory and social disorganization theory to show the relationship between court appointed representation and wrongful convictions. A new theory is also established that is referred to as the partial load reduction theory. This theory establishes the relationship that exists between wrongful convictions and public defender representation and provides solutions as well as new avenues for future research.
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Márquez, Escobar Carlos Pablo. "Critical analysis of the justification and economic fundamentals of the intellectual property rights system." Derecho & Sociedad, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/117974.
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The author claims that, from a general perspective, the economic analysis of infonnation and its relation with law presents a strong inefficiency. The author develops a study ofthe economic incentives in general and the manner how prívate property is constituted as the principal but is not the only one of the economic incentives for the production of information and innovation. In strict sense, the author explores the ontology of property, showing that it does not allow the inclusion of immaterial and intangible goods since the modern fundamentals of such institution come form the appropriation and the homesteading rule, categories incompatible with the ontology of information. Into such argumentation, the author studies the economic incentive theories for information and innovation, initiating with the study of the characters of information and the fallacies that always had surrounded such good. The author concludes showing that intellectual property rights are not the product of an evolutionary process, but, on the contrary, they come from privileges conceded by the State, which its justification and fundament is invalid and equivocal due to the incompatibility of the property and the homesteading rule with the ontology of information.<br>El autor argumenta que, desde una perspectiva general, el análisis económico de la información y su relación con el derecho presenta una ineficiencia liminar. Para ello, desarrolla un estudio de los incentivos económicos en general y de la manera como la propiedad privada se constituye en el principal pero no el único de los incentivos económicos a la producción de información e innovación. En sentido estricto el autor hace una ontología de la propiedad, demostrando que ella no permite la inclusión de bienes inmateriales o intangibles en tanto que el fundamento moderno de tal institución proviene de la apropiación y la ocupación, categorías incompatibles con la naturaleza de la información. Dentro de tal argumentación, el autor se fundamenta en el espectro de los incentivos económicos para la producción de información e innovación, iniciando con un estudio de la naturaleza de la información y las falacias que siempre han rodeado a dicho bien. El autor concluye mostrando que los derechos de propiedad intelectual no son el producto de un proceso evolutivo de una institución como la propiedad, sino que, por el contrario, ellos proceden de privilegios concedidos por el Estado, cuya justificación y fundamento es inválido y equivoco debido a la incompatibilidad del ser de la propiedad y la ocupación con la ontología de la información
15
Mangwiro, Heather K. "A critical investigation of the relevance of theories of feminist jurisprudence to African women in South Africa." Thesis, Rhodes University, 2005. http://hdl.handle.net/10962/d1007328.
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Feminist theories emerged out of the revolutionary enthusiasm that swept the Western world during the late eighteenth and nineteenth century Europe. Based on the assumption that all persons have "inalienable or natural" rights upon which governments may not intrude, feminists in Europe and America advocated that equal rights should be extended to women who up to this point were not considered legal beings separate and deserving of these rights. Most African writers and feminists have argued that since most of the theories of feminist jurisprudence have their roots in this Euro-centric context, they cannot be applicable to African women and should therefore be discarded. The thesis acknowledges that to a certain extent their assertions are true. For years feminist jurisprudence has been restricted to an academic engagement with the law failing to take into account the practices and customs of different communities. It has largely been the realm of the middle class bourgeois white female and therefore has been inaccessible to the African woman. The thesis aims, however, to prove that these theories of feminist jurisprudence although Euro-centric have a place in the understanding and advancement of African women's rights in South Africa. In Chapter One the writer traces the history of South African women's rights and the laws that affect African women. Chapter Two presents the emergence of feminist theories and categories of feminism. The writer then seeks to identify the misunderstandings and tensions that exist between the two. The narrow conception of Euro-centric feminism has been that its sole purpose has been the eradication of gender discrimination, however, for African women in South Africa they have had to deal with a multiplicity of oppressions that include but are not restricted to gender, race, economic and social disempowerment. This is dealt with in Chapter Three. It is the opinion of the writer that despite these differences feminism does play a critical role in the advancement of women's rights in South Africa. Taking the South African governments commitment to the advancement of universal rights, the writer is of the opinion that African women can look to the example set by Western feminists, and broaden these theories to suit and be adaptable to the South African context. The answer is not to totally discard feminist theories but to extract commonalities that exist between African and European women, by so doing acknowledging that women's oppression is a global phenomenon. This is the focus of Chapter Four. To avoid making this work a mere academic endeavour, the writer in Chapter Five also aims, through interviews, to include the voices of African women and to indicate areas that still need attention from both the lawmakers and women's rights movements (Feminists). Finally, the writer aims to present a way forward, one that is not merely formal but also substantively attainable.
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Brahim, Rachida. "La race tue deux fois : particularisation et universalisation des groupes ethniquement minorisés dans la France contemporaine, 1970-2003." Thesis, Aix-Marseille, 2017. http://www.theses.fr/2017AIXM0163.
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En France, entre les années 70 et fin 90, alors que la notion de crime raciste occupait fréquemment la sphère militante et médiatique, elle ne constituait pas une catégorie juridique dans la sphère judiciaire. La mésentente concernant le traitement des crimes racistes semble trouver son origine dans le fait que deux conceptions d’une même réalité ont pu coexister pendant une trentaine d’années : la réalité du groupe concerné par ces violences d’une part et celle émanant du droit étatique d’autre part. Alors que pour les premiers, le caractère raciste des violences ne faisait aucun doute, pour les parlementaires l’idée même d’un mobile raciste a régulièrement été rejetée. D’un point de vue législatif, il a fallu attendre l’année 2003 pour que la France adopte une loi permettant de prendre en compte l’intention raciste d’un crime. Depuis cette date, sous certaines conditions, le mobile raciste peut constituer une circonstance aggravante dans les infractions de type criminel. Cette thèse s’intéresse à ces deux vérités et aux circonstances qui ont déterminé leur existence. Elle vise notamment à interroger le rôle joué par le droit étatique dans la production et le maintien des catégories ethnoraciales par delà la politisation des violences qui en résultent. D’un point de vue empirique, l’enquête a consisté à confronter la parole des militants ayant dénoncé une double violence, celle provoquée par les agressions d’une part et celle induite par leur traitement pénal d’autre part, à un ensemble de sources archivistiques émanant des services du ministère de l’Intérieur et du Parlement. D’un point de vue théorique, les apports de la sociologie et de l’histoire de l’immigration ont été complétés en intégrant les réflexions des théories de l’ethnicité et de la Critical Race Theory. En définitive, cette recherche met en évidence le fait que l’universalisme républicain fait partie intégrante du processus de racialisation. En revenant sur les dispositions majeures de la politique d’immigration et sur la figure stigmatique de l’homme arabe, un premier axe s’intéresse à la manière dont le droit étatique a particularisé une catégorie d’individus en participant à la production des catégories ethnoraciales. Un deuxième axe vise à caractériser les crimes racistes qui ont été dénoncés entre les années 70 et fin 90. Un dernier axe enfin étudie la carrière juridique du mobile raciste durant cette même période. Il expose la manière dont la législation antiraciste a invisibilisé la question des crimes racistes et maintenu les catégories ethnoraciales en appliquant des règles universelles à des groupes qui ont auparavant été différenciés<br>In France between the 1970s and the 1990s, while the notion of racist crime was frequently brought up in the activist and media fields, it was not a legal category in the field of justice. The disagreement regarding the treatment of racist crimes seems to find its roots in the fact that two different conceptions of a same reality could coexist for thirty years: thereality of the group that was primarily concerned by such violence on the first hand, and that flowing from the State law on the other hand. Whereas for the former, the racist component of the violence was out of doubt, the members of the Parliament regularly rejected the mere idea of racist motive. In legal terms, it was not until 2003 that France adopted a law allowing toconsider the racist motive of a crime. Since then, and only under certain circumstances, the racist motive can constitute an aggravating factor for criminal offenses. This dissertation investigates these two truths and the circumstances that led to their existence. In particular, this research seeks to interrogate the role that the State law played in the production andconservation of ethnoracial categories, beyond the politicization of the violence flowing from such categories. In empirical terms, the study compared the discourses of the activists that denounced this dual violence, that provoked by the aggressions and that of their penal treatment, to an array of archival sources from the Interior Ministry’s services and theParliament. In theoretical terms, this research completes the contributions made by the sociology and history of immigration by integrating the theories of ethnicity and Critical Race Theory. Overall, this dissertation sheds light on the fact that Republican universalism is an integral part of the process of racialization. Through the study of the main dispositions of theimmigration policy and of the stigmatic figure of the Arab man, a first part investigates the way the State law particularized a category of people by taking part in the production of ethnoracial categories. A second part seeks to characterize the racist crimes that were denounced between the 1970s and 1990s. A last part investigates the judicial career of theracist motive. It shows how the anti-racist legislation blinded the question of racist crimes and maintained the ethnoracial categories by enforcing universal rules to groups that were formerly differentiated
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Darcie, Jonathan Doering. "A interpretação jurídica na perspectiva do realismo filosófico crítico." reponame:Biblioteca Digital de Teses e Dissertações da UFRGS, 2015. http://hdl.handle.net/10183/130536.
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Sendo mais do que as partes que o compõem, o direito histórico – expressão que designa o direito efetivo de um povo, localizado no espaço e no tempo – constitui uma unidade existencial própria, inserindo-se na realidade da mesma forma que outros tantos entes, como os objetos cotidianos. O direito histórico é, assim, um ente espiritual. Trata-se de uma consequência inexorável de uma visão crítica da realidade. A interpretação jurídica deve, com isso, respeitar a contingencialidade do direito histórico, ou seja, o modo como esse é construído e ganha a sua existência. Sempre ou naquilo em que construído com uma pretensão de independência daqueles responsáveis institucionalmente pela sua aplicação, o direito histórico há de receber do intérprete um esforço para a descoberta do seu verdadeiro conteúdo, tal como determinado pelas condições prévias da sua existência.<br>Being more than its component parts, the historical law - an expression that designates the effective law of one people located both in space and time - consists in an existential unit which is inserted in the reality the same way many other ordinary entities do. With its characteristics, the historical law consists in an spiritual being. This is an inexorable consequence of a critical view of reality. The legal interpretation shall therefore respect the contingent nature of the historical law, that is, the way it is built and gains its own existence. Whenever or in which it is built to be independent of those responsible for its institutional aplication, historical law must receive from the interpreter an effort in order to discover its true content, as determined by the preconditions of its existence.
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Mallison, Laura. "La Tirania de la Invisibilidad: La Necesidad de Reconocer y Analizar la Violencia de Genero en la Argentina." Scholarship @ Claremont, 2014. http://scholarship.claremont.edu/scripps_theses/462.
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This thesis examines gender violence in Argentina in the context of the historic continuum of gender inequality, with a more in-depth analysis of gender violence during the 1976-1983 dictatorship. I argue that gender violence is perpetuated and normalized by its lack of recognition as a political issue with ramifications extending to daily life. I use the construction of a collective memory of the Dictatorship as a framework for making the intricacies of gender violence more visible and provide a detailed analysis of two laws against gender violence to demonstrate its systematic nature. Ultimately, laws are not sufficient to address such a widespread issue, and society is responsible for creating a dialogue that presents gender violence in a context that adequately addresses its complexities.
Esta tesis examina la violencia de género en Argentina en el contexto del continuo histórico de la desigualdad entre los géneros, y en particular analiza la violencia de género de la Dictadura de 1976-1983 y de la actualidad. Propongo que la carencia de reconocer la violencia de género en un contexto político la perpetúa y la normaliza. Utilizo la construcción de la memoria colectiva de la Dictadura como un ejemplo de estrategias para visibilizar las complejidades de la violencia de género y analizo dos leyes contra tal violencia para demonstrar cuán sistemática es. Al fin, las leyes no son suficientes para abordar un problema tan generalizado y normalizado y la sociedad es responsable de desarrollar un diálogo sobre la violencia de género y sus complejidades.
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Silva, Simone Schuck da. "Fora da norma?: conflitos dogmáticos nas demandas por retificação de nome e sexo no registro civil." Universidade do Vale do Rio dos Sinos, 2018. http://www.repositorio.jesuita.org.br/handle/UNISINOS/7042.
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Previous issue date: 2018-02-28<br>CAPES - Coordenação de Aperfeiçoamento de Pessoal de Nível Superior<br>PROEX - Programa de Excelência Acadêmica<br>O trabalho analisa as demandas de retificação de nome e sexo no registro civil de travestis e transexuais e a sua expressão pela gramática jurídica a partir de uma pesquisa empírica quantitativa e qualitativa nos processos judiciais do projeto “Direito à Identidade: Viva seu nome!”, do G8-Generalizando, grupo de direitos sexuais e de gênero do Serviço de Assessoria Jurídica Universitária da Universidade Federal do Rio Grande do Sul (SAJU/UFRGS). Foram utilizados o método de procedimento de estudo de caso e as técnicas de pesquisa documental, em relação aos processos do grupo, e de pesquisa de campo, com a aplicação de entrevistas semiestruturadas aos agentes envolvidos nas ações. Com base na Teoria Crítica do Direito, observou-se a configuração de uma disputa dogmática sobre a forma regulatória do nome e do sexo civis e, por sua avaliação crítica, concluiu-se pela possibilidade de elaboração de outro modelo de regulação desses institutos jurídicos, uma regulação social e autônoma, capaz de oferecer maior legitimidade à operação do direito e maior autonomia para travestis e transexuais sobre suas identidades.<br>This thesis analyzes name and sex demands of rectification in the civil registry of travestis and transgenders and its expression on legal grammar, by means of a quantitative and qualitative empirical research of legal cases raised by Direito à identidade: Viva seu nome!, a project from G8-Generalizando – sexual and gender rights group of the Federal University of Rio Grande do Sul (UFRGS) clinic legal program. It uses case study procedure method and techniques of documentary research, in relation to the group processes, and field research, with the application of semi-structured interviews with agents involved in the lawsuits. Based on the Critical Legal Theory, it is observed the configuration of a dogmatic dispute on the regulatory form of civil name and sex. By its critical evaluation, it was concluded that is possible to design another regulatory framwork of these legal institutes, a social and autonomous regulation capable of offering greater legitimacy to the operation of law and also greater autonomy for travestis and transgenders on their own identities.
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Bockel, Felix Matthes. "Securitization of Migration in Europe : Pushback practices and the Role of the European Court of Human Rights." Thesis, Umeå universitet, Statsvetenskapliga institutionen, 2021. http://urn.kb.se/resolve?urn=urn:nbn:se:umu:diva-187361.
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An embedded case study investigating the ongoing securitization of migration in the EU from 2014-2020 and the role of legal institutions, in this case the European Court of Human Rights (ECtHR) in these processes. Securitization Theory is used in combination with Critical Legal Theory to create a framework that attempts to both illuminate the role of the functional actor in Securitization Theory further, and the impact securitization has on legal institutions. It provides explanations for sudden shifts in legal argumentation, especially in cases of high political relevance with the use of Critical Legal Theory. The case of N.D. & N.T. vs. Spain serves as an example of a functional actor providing two contrasting judgments on the same events within a short period of time and opens up discussions about political influences on legal institutions. Securitization and the framing of refugees as existential threats to European identity and culture is one of the many ongoing political processes related to the issue of migration and refuge in Europe. As the political landscape shifts and right-wing populist parties establish themselves in European Member States, illegal pushbacks have become common practice at the outer borders of the EU and are challenged both politically and legally. This study investigated cases of illegal pushbacks to renew criticism against the institutions engaging in and enabling the practice.
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López, Melonio María Noel. "Asking “the child question” : - an analysis of the child perspective of Swedish legislation concerning child marriage with special focus on the recognition of those enacted in other countries." Thesis, Umeå universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:umu:diva-175438.
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Malan, Yvonne. "Justice and the law : a perspective from contemporary jurisprudence." Thesis, Stellenbosch : Stellenbosch University, 2000. http://hdl.handle.net/10019.1/51807.
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Thesis (MA)--University of Stellenbosch, 2000.<br>ENGLISH ABSTRACT: This thesis examines the relationship between law and justice. Firstly, it is argued that the
concept of justice tends to be defined too narrowly as distributive justice or as a mechanism
to maintain social order. It is argued that Jacques Derrida's understanding of justice not only
gives a richer and broader understanding of the concept, but also on its complex relationship
with the law. Lastly, some of the possible implications for jurisprudence (with specific
reference to Critical Legal Studies, Critical Race Theory and Drucilla Cornell) are examined.<br>AFRIKAANSE OPSOMMING: Hierdie tesis ondersoek die verhouding tussen geregtigheid en die reg. Daar word eerstens
geargumenteer dat geregtigheid te maklik gedefinieer word as distributiewe geregtigheid of as
In meganisme om sosiale orde te bewerkstellig. Daar word geargumenteer dat Jacques
Derrida se verstaan van die konsep nie aileen 'n breer en ryker verstaan moontlik maak nie,
maar dat dit ook fokus op die komplekse verhouding met die reg. Laastens word sommige
van die moontlike implikasies vir regsfilosofie (met spesifieke verwysing na Critical Legal
Studies, Critical Race Theory en Drucilla Cornell) ondesoek,
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Frimodt, Staffan. "Integralteori och rättsfilosofi." Thesis, Stockholms universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-185489.
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The purpose of this thesis was to analyze four of the most commonly applied theories in jurisprudence by means of using the philosophical framework of in-tegral theory. Natural law, legal positivism, legal realism and critical legal theory were analyzed to find out how they relate to each other and to see what their strengths and weaknesses are in an integral perspective. The integral theory was created by the American philosopher Ken Wilber (1949-). Two of the main com-ponents of the theory are the four quadrants and the levels of development. The quadrants describe dimensions and perspectives of reality, and consists of the inner individual (subjective) quadrant, the outer individual (objective) quadrant, the inner collective (intersubjective) quadrant and the outer collective (interob-jective) quadrant. Individual values develop through different levels in a specific order, as is described in the second component of the integral theory. Different adult individuals can therefore be on different levels of development. This devel-opment is not only seen in individuals, but is also seen in historical and collective development. The levels that both individuals and societies develop through in-cludes (but are not limited to): the absolutistic (traditional) level, the rational (modern) level and the relativistic (postmodern) level.When using the integral theory to analyze the four theories in jurisprudence it became apparent that they can be mapped onto the integral framework. Natural law, which focuses on morality, can be placed in the intersubjective quadrant, and is mostly associated with the traditional level of development. Legal positiv-ism stems mostly from the interobjective quadrant where law is first and fore-most a system of rules that are enforced by different societal institutions. Legal positivism is typically associated with the modern level of development. Legal realism is also typically associated with the modern level of development and focuses a lot on the objective quadrant: on empiricism and on what judges actu-ally do. Critical legal theory is strongly associated with the postmodern level of development. It emphasizes different kinds of oppression in the intersubjective and in the interobjective quadrant. This thesis presents further examples of how the integral theory can be applied in legal theory and practice.
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Braga, Mariana Moron Saes [UNESP]. "Reconhecimento social e autonomia intersubjetiva: direito e inclusão da pessoa com deficiência no mercado de trabalho." Universidade Estadual Paulista (UNESP), 2010. http://hdl.handle.net/11449/101010.
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braga_mms_dr_mar.pdf: 417772 bytes, checksum: b8de0df52692c8a516c8743825c87566 (MD5)<br>The legislation of including disabled people in companies came into effect at the end of the 1980s. Due to the compulsory nature, as this legislation envisages fines and prison if not complied with, disabled people have been contracted by companies. This research was done in an attempt to analyze the inclusion process from the point of view of Axel Honneth’s recognition theory. The aim of this study is to analyze the level of social or intersubjective autonomy of disabled people and add components to build a model of understanding the vulnerability of disabled people. By intersubjective autonomy, we mean the web of social relationships of recognition (in which social subjects recognize and are recognized by others) which is inherent to the individual identity, ensuring self-confidence, self-respect and self-esteem. Visually impaired people working in the job market were selected. Semi-directive interviews were used as a technique to collect data from individual interviews. The aim was to identify the experience of intersubjective autonomy that the subjects had gained in social relationships of affection, juridical recognition and esteem. Based on the results, it can be concluded that the use of legislation was positive for almost all the subjects in terms of developing relationships of recognition parallel to work inclusion. Although the data showed legislation efficiency in terms of the subjects gaining in relation to acquisition and/or maintaining self-confidence, self-esteem or self-respect, new studies could help reflect on improving conditions of implementing the inclusion legislation and its social effects.
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Luker, Trish, and LukerT@law anu edu au. "THE RHETORIC OF RECONCILIATION: EVIDENCE AND JUDICIAL SUBJECTIVITY IN CUBILLO v COMMONWEALTH." La Trobe University. School of Law, 2006. http://www.lib.latrobe.edu.au./thesis/public/adt-LTU20080305.105209.
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In August 2000, Justice O�Loughlin of the Federal Court of Australia handed down the decision in Cubillo v Commonwealth in which Lorna Cubillo and Peter Gunner took action against the Commonwealth Government, arguing that it was vicariously liable for their removal from their families and communities as children and subsequent detentions in the Northern Territory during the 1940s and 1950s. The case is the landmark decision in relation to legal action taken by members of the Stolen Generations.
Using the decision in Cubillo as a key site of contestation, my thesis provides a critique of legal positivism as the dominant jurisprudential discourse operating within the Anglo-Australian legal system. I argue that the function of legal positivism as the principal paradigm and source of authority for the decision serves to ensure that the debate concerning reconciliation in Australia operates rhetorically to maintain whiteness at the centre of political and discursive power. Specifically concerned with the performative function of legal discourse, the thesis is an interrogation of the interface of law and language, of rhetoric, and the semiotics of legal discourse.
The dominant theory of evidence law is a rationalist and empiricist epistemology in which oral testimony and documentary evidence are regarded as mediating the relationship between proof and truth. I argue that by attributing primacy to principles of rationality, objectivity and narrative coherence, and by privileging that which is visually represented, the decision serves an ideological purpose which diminishes the significance of race in the construction of knowledge.
Legal positivism identifies the knowing subject and the object of knowledge as discrete entities. However, I argue that in Cubillo, Justice O�Loughlin inscribes himself into the text of the judgment and in doing so, reveals the way in which textual and corporeal specificities undermine the pretence of objective judgment and therefore the source of judicial authority.
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Ashfaq, Muhammad. "The crime of aggression : a critical historical inquiry of the just war tradition." Thesis, University of St Andrews, 2018. http://hdl.handle.net/10023/13671.
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Why has international society been unable to develop political and judicial collective-security arrangements to limit external aggression? The thesis argues that efforts to limit aggression in moral and legal theory have created an unjust order in which great powers have used these theoretical traditions to reinforce their power in the global order. The thesis argues that is not a new development but can be found in one of the oldest traditions of moral reflection on war, the just war tradition. To substantiate this point, the thesis critically surveys the philosophers of the ancient Greek, Roman, Medieval Christian Renaissance, and early modern theorists of just war and demonstrates that their just war ideas contain assumptions about exclusion, identity and power reflecting their cultural superiority which underlie the practices and theories of the leading states and justifications of their aggressive wars. The thesis connects these moral reflections to the emergence of modern international law and the European pluralist international society of states based on mutual respect for sovereignty and the norm of non-intervention, highlighting how justifications of its colonial aggression against non-Europeans established an unjust solidarist order against them which persists in the post-Cold War era. To conclude it presents suggestions for improvement in the current pluralist international arrangements to address the issue of aggression.
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Lorentino, Sérgio Augusto Pereira. "Elementos fundamentais para uma teoria própria dos contratos de consumo." Pontifícia Universidade Católica de Minas Gerais, 2016. http://hdl.handle.net/11612/507.
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O trabalho batizado como Elementos fundamentais para uma teoria própria dos
contratos de consumo é uma tese apresentada ao Programa de Doutorado em
Direito Privado, da Pontifícia Universidade Católica de Minas Gerais – PUC Minas e
que almeja comprovar a impropriedade de utilização da figura do negócio jurídico
para disciplinar os contratos de consumo. Valendo-se de uma revisão bibliográfica e
jurisprudencial, a pesquisa parte da observação de que a teoria do negócio jurídico,
atualmente vigente no Brasil, apesar de ter logrado diversos avanços após a
Constituição Federal e no início do século XXI, especialmente com o advento do
Código Civil de 2002, que a fizeram mais sociabilizada, ainda permanece lastreada
na atuação da liberdade do sujeito, o qual, em sendo detentor de autonomia, pode
decidir por celebrar ou não celebrar contratos, assim como moldar o conteúdo
desses, disso decorrendo valor jurídico-obrigacional. Entretanto, o estudo da
sociedade de consumo demonstra que, na verdade, a lógica da liberdade não pode
ser aplicada às relações de consumo, especialmente ao consumidor, pois este não
atua no mercado guiado pelo poder da autonomia, mas sim pela necessidade que
demonstrar ter em relação aos produtos e serviços necessários a uma vida digna.
Por isso, tanto a Teoria do Negócio Jurídico quanto a Teoria Geral dos Contratos
são tidas como inapropriadas para a tarefa de regência dos contratos de consumo.
Consequentemente, é apontada a necessidade de uma teoria própria capaz de
reconhecê-lo como fenômeno distinto dos contratos privados em geral e que, a partir
disso, desenvolva mecanismos jurídicos ligados às suas peculiaridades. Um
paradigma importante, nesse sentido, é o estudo das relações contratuais de fato,
decorrentes de comportamentos sociais típicos, que oferecem reflexões importantes
sobre o comportamento do consumidor em situações como a do tráfego massificado
de determinados serviços. Dessa forma, são ofertados elementos fundamentais para
a construção da Teoria dos Contratos de Consumo, assentados na pressuposição
do contrato de consumo como promotor de funcionalidade humanizadora e
constitucional, que resulta, por fim, em uma definição do contrato de consumo,
dotado-o de singularidades capazes de diferenciá-lo do contrato lato sensu de que
cuida o Direito Privado.<br>This research named Fundamental elements for an proper theory of consume
contracts is the thesis presented to the PhD Program in Private Law, at Pontifícia
Universidade Católica of Minas Gerais - PUC Minas. It aims at confirming the
impropriety of using the “legal business” to discipline the consumer contracts. Drown
on a bibliographic and jurisprudential review, the research is based on the
observation that the current Brazilian legal business theory, although being
developed after the Federal Constitution, and in the beginning of 21st century, is still
supported by the subject’s freedom of actuation, who, as the titleholder of the
autonomy, is able to decide for celebrating or not the contracts, as well as shape
their content, deriving from this the juridical obligational value. Nevertheless, the
study of consumer society shows that, actually, the logic of freedom cannot be
applied to consumer relations, especially to the consumer, because he does not act
in a market guided by the autonomy power, but by the necessity of showing relation
to the products and services needed for a worthy life. Because of that, both, the legal
business and contracts’ general theory, is considered inappropriate for ruling
consumer contracts. Consequently, the need of a proper theory, capable of
recognizing consumer contracts as a distinct phenomenon of the private contracts in
general, is presented. In addition, legal mechanisms connected to its peculiarities are
shown. An important paradigm, in this sense, is the study of fact contractual
relations, due to their typical social behavior, that offers important reflections about
the consumer’s behavior on situations like the massive traffic of certain services. In
this way, some fundamental elements for creating consumer contracts are
approached, based on the presupposition of the consumer contract as the promoter
of a human and constitutional functionality, which results, at the end, in a definition of
consumer contract, giving it a single capacity of making it different from the lato
sensu contract, which is approached by private law.
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Braga, Mariana Moron Saes. "Reconhecimento social e autonomia intersubjetiva : direito e inclusão da pessoa com deficiência no mercado de trabalho /." Marília : [s.n.], 2010. http://hdl.handle.net/11449/101010.
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Orientador: Aluízio Almeida Schumacher<br>Banca: João Virgílio Tagliavini<br>Banca: Rodolfo Franco Puttini<br>Banca: Sadao Omote<br>Banca: Luís Antônio Francisco de Souza<br>Resumo:A legislação que fundamenta a inclusão da pessoa com deficiência na empresa está em vigor desde o final dos anos 1980. Em virtude da obrigatoriedade, pois a referida legislação prevê pena de multa e prisão em caso de descumprimento, pessoas com deficiência têm sido contratadas por empresas. A presente pesquisa foi realizada na tentativa de analisar o processo de inclusão sob a ótica da teoria do reconhecimento de Axel Honneth. O objetivo deste estudo foi analisar o grau de autonomia social ou intersubjetiva da pessoa com deficiência e acrescentar elementos para construção de modelo compreensivo de vulnerabilidade da pessoa com deficiência. Por autonomia intersubjetiva, entende-se o conjunto de relações sociais de reconhecimento (em que sujeitos sociais reconhecem e são reconhecidos, uns pelos outros) que conferem ao indivíduo identidade, garantindo-lhe simultaneamente autoconfiança, autorrespeito e autoestima. Foram selecionadas pessoas com deficiência visual inseridas no mercado de trabalho. Utilizou-se como técnica para coleta dos dados entrevistas individuais, semidiretivas com o propósito de identificar a experiência de autonomia intersubjetiva que os sujeitos acumularam no contexto das relações sociais de afeto, reconhecimento jurídico e estima. Com base nos resultados, é possível concluir que o uso da legislação foi positivo para a quase totalidade dos sujeitos, no sentido de permitir uma ampliação das relações de reconhecimento paralela à inserção no trabalho. Apesar de os dados indicarem a eficácia da legislação, no sentido de que os sujeitos manifestaram ganhos em relação à aquisição e/ou manutenção da autoconfiança, autoestima ou autorrespeito, novos estudos podem contribuir com a reflexão acerca do aperfeiçoamento jurídico das condições de aplicação da legislação inclusiva e de seus efeitos sociais.<br>Abstract: The legislation of including disabled people in companies came into effect at the end of the 1980s. Due to the compulsory nature, as this legislation envisages fines and prison if not complied with, disabled people have been contracted by companies. This research was done in an attempt to analyze the inclusion process from the point of view of Axel Honneth's recognition theory. The aim of this study is to analyze the level of social or intersubjective autonomy of disabled people and add components to build a model of understanding the vulnerability of disabled people. By intersubjective autonomy, we mean the web of social relationships of recognition (in which social subjects recognize and are recognized by others) which is inherent to the individual identity, ensuring self-confidence, self-respect and self-esteem. Visually impaired people working in the job market were selected. Semi-directive interviews were used as a technique to collect data from individual interviews. The aim was to identify the experience of intersubjective autonomy that the subjects had gained in social relationships of affection, juridical recognition and esteem. Based on the results, it can be concluded that the use of legislation was positive for almost all the subjects in terms of developing relationships of recognition parallel to work inclusion. Although the data showed legislation efficiency in terms of the subjects gaining in relation to acquisition and/or maintaining self-confidence, self-esteem or self-respect, new studies could help reflect on improving conditions of implementing the inclusion legislation and its social effects.<br>Doutor
29
Doyle, Daniel S. "A Discourse-Proceduralist Case for Election and Media Reform after Citizens United." Ohio University / OhioLINK, 2012. http://rave.ohiolink.edu/etdc/view?acc_num=ohiou1339711190.
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Almeida, Fernanda Afonso de. "Proteção penal do patrimônio e sonegação fiscal: uma abordagem à luz da teoria crítica." Universidade de São Paulo, 2012. http://www.teses.usp.br/teses/disponiveis/2/2136/tde-03102012-090527/.
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Notam-se semelhanças fundamentais entre os delitos patrimoniais e os crimes de sonegação fiscal, os quais possuem dignidade penal no ordenamento jurídico nacional. Não obstante isso, ao comparar o tratamento dado a eles pelas agências formais de controle social, percebe-se uma escancarada preferência em criminalizar os autores de crimes contra o patrimônio, que são, em sua grande maioria, pertencentes às classes sociais mais pobres, enquanto se imunizam comportamentos típicos de indivíduos pertencentes às classes dominantes, como a sonegação fiscal. Nota-se que o Direito Penal, supostamente igualitário, é seletivo e discriminatório; é o Direito desigual por excelência. A teoria crítica da Criminologia, a partir do método materialista-histórico de Karl Marx, procura explicar que, em uma sociedade (capitalista) embasada fundamentalmente em relações de propriedade, a diferença de classes estrutural acaba por circunscrever a operacionalidade do sistema de justiça penal. O preconceito de classe conduz toda a seletividade do Direito Penal: as imunidades e a criminalização incidem em medida correspondente às relações de poder entre as classes sociais. Desvenda-se uma ordem legal ideológica e imaginária, fundada em conceitos de igualdade e de justiça social e projetada para legitimar a ordem vigente, em contrapartida a uma ordem real opressiva, que se dirige aos pobres, marginalizados, despossuídos e não proprietários, com uma função distinta da que prega: reproduzir as relações de desigualdade e as massas criminalizadas. A escola crítica, defronte a esse quadro e tratando-se de uma teoria comprometida com a construção de uma sociedade mais igualitária, apresenta propostas para tentar reduzir os mecanismos discriminatórios da justiça penal.<br>Fundamental similarities can be observed between property crimes and tax evasion, both of which having penal legitimacy in the public legal order. Notwithstanding, by comparing the treatment the official agencies of social control applied to them, it can be noticed a clearly preference to criminalize the agents of property crimes, who, in great number, belong to the poor social class, while typical conducts from high social class, as tax evasion, are immunized. It can be noticed that Criminal Law, supposedly egalitarian, is selective and discriminatory; it is the unequal Law par excellence. The critical theory of Criminology tries to explain, from Karl Marxs historical-materialist method, why in a (capitalist) society, structured mainly on properties relations, the differences between classes limit the criminal justice system operation. The class prejudice conducts the Criminal Law selectiveness: immunities and criminalization are focused correspondingly to power relations between the social classes. It can be unveiled an ideological and imaginary legal order, founded in equality and social justice, projected in order to legitimate the existing order, in contrast to an oppressive real order and directed to the poor, marginalized, dispossessed, nonproprietary, which performs in a different way of its speech: reproducing the unequal relations and the criminalized mass. The critical theory, in front of this frame, as a theory committed to the construction of a more equal society, presents proposals to try to reduce the discriminatory mechanisms of the criminal justice.
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Custodio, Fernando Henrique Corrêa. "Uma nova análise sobre os benefícios por incapacidade: ênfase na sua efetividade como direito humano fundamental social." Universidade de São Paulo, 2016. http://www.teses.usp.br/teses/disponiveis/2/2138/tde-04082016-113314/.
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Estudo dos benefícios previdenciários por incapacidade sob o prisma dos direitos humanos fundamentais sociais, com enfoque na garantia de sua máxima efetividade possível em termos de concretização, como princípio jurídico. Importância cada vez maior do tema, tendo em vista o aumento de sua litigiosidade, atualmente responsável pelo maior número de ações ajuizadas e em trâmite junto aos Juizados Especiais Federais da Terceira Região. Utilização dos métodos dedutivo e interdisciplinar de estudo, com ênfase nos enfoques histórico, político, filosófico, social e jurídico. Análise dos direitos humanos fundamentais sob o prisma da Teoria Crítica (Escola de Frankfurt) e do pós-positivismo (neoconstitucionalismo concretista; força normativa da constituição), levando-se em conta sua evolução histórica, bem como a evolução dos modelos de Estado, dos ordenamentos jurídicos e da própria sociedade ao longo dos séculos. Conclusão pela existência de um regime jurídico único de proteção de todos os direitos humanos fundamentais, de nível constitucional, bem como de seu caráter universalizante, fruto de longo processo de lutas pelo reconhecimento do ser humano como sujeito de direitos e da sacralização da pessoa humana, alçada ao centro dos ordenamentos jurídicos estatais. Reflexos de tais constatações na via jurisdicional, mediante a garantia de plena justiciabilidade dos direitos humanos fundamentais, com ênfase nos direitos sociais. Inserção do direito a previdência social dentre os direitos humanos fundamentais sociais, com assento constitucional (art. 201 , I). Necessidade de seu estudo a partir da análise das contingências sociais elencadas constitucionalmente e em lei como objeto de proteção estatal. Aglutinação das prestações previdenciárias em torno de cada contingência social , com a formação de um regime jurídico único de proteção. Enfoque na continggência social da incapacidade laboral. incapacidade laboral decorrente de doença e/ou acidente, objeto do presente estudo. Aglutinação dos três benefícios previdenciários por incapacidade (aposentadoria por invalidez, auxílio-doença e auxílio-acidente) em um regime jurídico protetivo único, caracterizado pela fungibilidade ontológica entre eles. Necessidade de garantia da prestação adequada ao caso concreto, sem exigências de prévia definição acerca do grau e alcance da incapacidade laboral do trabalhador segurado. Reflexos de tais constatações sobre as demandas previdenciárias por incapacidade laboral, com ênfase na garantia da proteção jurisdicional ao direito humano fundamental social. Escopo principal de desenvolvimento de uma teoria geral voltada à proteção dos benefícios previdenciários por incapacidade, notadamente pela via jurisdicional , como medida de estímulo ao debate acadêmico e desenvolvimento destes estudos, com ganhos em termos de fundamentação e coerência. Fomento, outrossim, a uma análise sistemática e coerente de tais benefícios pelo Poder Judiciário, com o abandono da análise casuística e pontual levada a efeito até hoje Direito do Trabalho e da Seguridade Social.<br>Study of the incapacity benefits through the prism of social fundamental human rights, with a focus on ensuring the maximum possible effectiveness in their implementation, as a legal principle. Growing importance of the issue, given the increase in their litigation, currently responsible for the largest number of lawsuits fi1ed and pending with the Federal Special Courts of the Third Region. Use of deductive and interdisciplinary study methods, emphasizing the historical, political, philosophical, social and legal approaches. Analysis of fundamental human rights from the perspective of Critical Theory (Frankfurt School) and post-positivism (concretist neoconstitutionalism; normative force of the constitution), taking into account its historical evolution and the evolution of state models, of legal system and society itself over the centuries. Conclusion by the existence of a unified legal regime for the protection of all fundamental human rights, at constitutional level, as well as its universalizing character, as a result of long process of struggles for recognition ofthe human being as a subject ofrights and the sacredness ofthe human person, raised to the center of state legal systems. Reflections of those findings in the judicial process, by ensuring full justiciability of fundamental human rights, with emphasis on social rights. Insertion of the right to social security among the social fundamental human rights, with constitutional provision (art. 201, 1). Need for their study from the analysis of social contingencies listed constitutionalIy and in law as state protection object. Agglutination of social security benefits around each social contingency, with the formation of a unified legal regime of protection. Focus on social contingency of incapacity due to illness and/or accident, the present study object. Agglutination of the three incapacity benefits (disability retirement, sickness and accident alIowance) in a unified protective legal regime, characterized by ontological fungibility between them. Need to ensure the appropriate benefit to the case, without requiring prior definition of the extent and scope of the incapacity of the insured worker. Reflections of such findings on the judicial claims for incapacity, emphasizing the guarantee of judicial protection to the social fundamental human right. Principal aim of developing a general theory focused on the protection of incapacity benefits, notably by judicial process, as a stimulus to the academic debate and development of these studies, with gains in terms of reasoning and coherence. Promoting, moreover, a systematic and coherent analysis of such benefits by the judiciary, with the abandonment of the casuistic and punctual analysis carried out to date.
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Icleanu, Constantin C. "A CASE FOR EMPATHY: IMMIGRATION IN SPANISH CONTEMPORARY MEDIA, MUSIC, FILM, AND NOVELS." UKnowledge, 2017. http://uknowledge.uky.edu/hisp_etds/33.
Full textAbstract:
This dissertation analyzes the representations of immigrants from North Africa, Latin America, and Eastern Europe in Spain. As engaged scholarship, it seeks to better the portrayal of immigrants in the mass media through the study of literature, film, and music about immigration spanning from the year 2000 to 2016. Because misconceptions continue to propagate in the media, this dissertation works to counteract anti-immigrant, xenophobic representations as well as balance out overly positive and orientalized portrayal of immigrants with a call to recognize immigrants as human beings who deserve the same respect, dignity, and rights as any other citizen.
Chapter 1 examines and analyzes the background to immigration in Spain by covering demographics, the mass media, and political theories related to immigration. Chapter 2 analyzes Spanish music about immigration through Richard Rorty’s social theory of ‘sentimental education’ as a meaningful way to redescribe marginalized minorities as full persons worthy of rights and dignity. Chapter 3 investigates the representation of immigrants in Spanish filmic shorts and cinema. Lastly, Chapter 4 demonstrates how literary portrayals of immigrants written by undocumented immigrants can give rise to strong characters that avoid victimization and rear empathy in their readers in order to affect a social change that minimizes cruelty.
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Scott, Delbert Christopher Eugene. "Developing an Instrument to Measure Educator Perceptions of African American Male Students PreK - 12." Bowling Green State University / OhioLINK, 2019. http://rave.ohiolink.edu/etdc/view?acc_num=bgsu1571837290653201.
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Salters, Gregory A. "A Phenomenological Exploration of Black Male Law Enforcement Officers' Perspectives of Racial Profiling and Their Law Enforcement Career Exploration and Commitment." FIU Digital Commons, 2013. http://digitalcommons.fiu.edu/etd/877.
Full textAbstract:
This phenomenological study explored Black male law enforcement officers’ perspectives of how racial profiling shaped their decisions to explore and commit to a law enforcement career. Criterion and snow ball sampling was used to obtain the 17 participants for this study. Super’s (1990) archway model was used as the theoretical framework. The archway model “is designed to bring out the segmented but unified and developmental nature of career development, to highlight the segments, and to make their origin clear” (Super, 1990, p. 201).
Interview data were analyzed using inductive, deductive, and comparative analyses. Three themes emerged from the inductive analysis of the data: (a) color and/or race does matter, (b) putting on the badge, and (c) too black to be blue and too blue to be black.
The deductive analysis used a priori coding that was based on Super’s (1990) archway model. The deductive analysis revealed the participants’ career exploration was influenced by their knowledge of racial profiling and how others view them. The comparative analysis between the inductive themes and deductive findings found the theme “color and/or race does matter” was present in the relationships between and within all segments of Super’s (1990) model. The comparative analysis also revealed an expanded notion of self-concept for Black males – marginalized and/or oppressed individuals.
Self-concepts, “such as self-efficacy, self-esteem, and role self-concepts, being combinations of traits ascribed to oneself” (Super, 1990, p. 202) do not completely address the self-concept of marginalized and/or oppressed individuals. The self-concept of marginalized and/or oppressed individuals is self-efficacy, self-esteem, traits ascribed to oneself expanded by their awareness of how others view them. (DuBois, 1995; Freire, 1970; Sheared, 1990; Super, 1990; Young, 1990). Ultimately, self-concept is utilized to make career and life decisions.
Current human resource policies and practices do not take into consideration that negative police contact could be the result of racial profiling. Current human resource hiring guidelines penalize individuals who have had negative police contact. Therefore, racial profiling is a discriminatory act that can effectively circumvent U.S. Equal Employment Opportunities Commission laws and serve as a boundary mechanism to employment (Rocco & Gallagher, 2004).
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Wright, Kelly E. "The Reflection and Reification of Racialized Language in Popular Media." UKnowledge, 2017. http://uknowledge.uky.edu/ltt_etds/18.
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This work highlights specific lexical items that have become racialized in specific contextual applications and tests how these words are cognitively processed. This work presents the results of a visual world (Huettig et al 2011) eye-tracking study designed to determine the perception and application of racialized (Coates 2011) adjectives. To objectively select the racialized adjectives used, I developed a corpus comprised of popular media sources, designed specifically to suit my research question. I collected publications from digital media sources such as Sports Illustrated, USA Today, and Fortune by scraping articles featuring specific search terms from their websites. This experiment seeks to aid in the demarcation of socially salient groups whose application of racialized adjectives to racialized images is near instantaneous, or at least less questioned. As we view growing social movements which revolve around the significant marks unconscious assumptions leave on American society, revealing how and where these lexical assignments arise and thrive allows us to interrogate the forces which build and reify such biases. Future research should attempt to address the harmful semiotics these lexical choices sustain.
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Hu, Feng. "Rechtsökonomik als Rechtsanwendungsmethode." Doctoral thesis, Humboldt-Universität zu Berlin, 2019. http://dx.doi.org/10.18452/19848.
Full textAbstract:
Die bisherigen Heranziehungsmodelle der Rechtsökonomik bei der Rechtsanwendung geht vor allem davon aus, dass die Effizienz als Rechtsprinzip in bestimmten Rechtsordnungen inbegriffen ist. Dies schränkt aber die Rolle der Rechtsökonomik für die Rechtsanwendung ein. Da der Rechtsanwender in Deutschland sowohl am geltenden Recht als auch an wissenschaftlichen Gesetzen binden soll, kann die Rechtsökonomik als die im Sinne vom kritischen Rationalismus genannte Wissenschaft zur Erklärung menschlichen Verhaltens unter Berücksichtigung der gegebenen Rechtszuordnungen bezeichnet werden. Daraus ergibt sich, dass die aus der wissenschaftlichen Rechtsökonomik abgeleitete Gesetzmäßigkeit dem Rechtsanwender nachkommen soll, sodass die Rechtsökonomik als Rechtsanwendungsmethode unbeschränkt bei der Rechtsanwendung verwertet werden kann. Bei der Auswahl rechtsdogmatischer Lehrsätze bei der Rechtsanwendung ist das Werturteil unvermeidlich, mithilfe des vom kritischen Rationalismus vertretenen Brückenprinzips und Komparativismus kann die Werturteilproblematik bei der Rechtsanwendung durch die positive Wissenschaft und Rechtsökonomik gelöst werden. Die konkrete Methode zur Auswahl rechtsdogmatischer Lehrsätze ist es, dass durch die positive Rechtsökonomik diese rechtsdogmatische Lehre auszuwählen ist, die im Vergleich mit anderen konkurrierenden Lehren das restriktive Minimum der Transaktionskosten darstellt und somit die faktische Geltung der entsprechenden rechtlichen Regelung unter dem gegebenen Umstand am höchsten verwirklicht.<br>The previous application models of economics of law in the judicial application assume that efficiency as a legal principle is included in the jurisdiction. However, this limits the role of economics of law in the judicial application. As the legal practitioner in Germany shall obey applicable laws and scientific laws, economics of law can be recognized as a real science in the sense of critical rationalism, explaining the human behavior under the condition of the given legal order. It follows that the regularity derived from the scientific economics of law shall be complied with by the legal practitioner, so that the economics of law can be indefinitely used in the judicial application. By selecting the concrete legal dogmatic doctrines in the judicial application, the value judgement is inevitable. With the help of bridge principle and comparativism of the critical rationalism, the value judgement problem can be resolved through the positive science and the positive economics of law. The concrete method of selecting legal dogmatic doctrines is that the legal dogmatic doctrine, which represents the restrictive minimum of the transaction costs and thus realizes the de facto validity of the relevant legal provisions under the given circumstance in highest grade, shall be selected through the positive economics of law.
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Van, der Walt Johan Willem Gous. "The twilight of legal subjectivity : towards a deconstructive republican theory of law." Thesis, 2015. http://hdl.handle.net/10210/14160.
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Norman, Jana L. "Posthuman Legal Subjectivity in the Anthropocene: Introducing the Cosmic Person." Thesis, 2019. http://hdl.handle.net/2440/121348.
Full textAbstract:
The legal philosophy known as Earth Jurisprudence sets a countercultural objective for Western law and legal theory by valuing the establishment of a mutually beneficial human–earth relationship over the satisfaction of exclusively human interests. I propose a novel strategy for meeting this objective: reimagining the human in the human–earth relationship. The original contribution of this thesis is the reconceptualisation of the human legal subject based on the non-dualised construct of human identity suggested by combining insights into the nature of reality from a variety of contemporary fields of scientific and critical inquiry. The project begins with an analysis of the traditional Western construct of human identity, which is structured as a dualism. In this view, humans are understood to be of a separate and superior order to nature. The thesis dissects the set of assumptions that conspire to form, in the first instance, a primary reason/nature dualism from which branch not only the singular human/nature dualism, but also an interlocking set of dualisms relegating non-human and some human Others to the underside of the hierarchy. A dynamic of radical discontinuity in the human–earth relationship is established by this complex, which precludes mutuality. I characterise thinking within and about Western law and legal theory as anthropocentric, given the anthropocentrism of Western culture. The extent to which this is true is examined in this thesis, first in a discussion of an emblematic case in which the fate of particular non-human subjects is decided without regard for the needs and interests of the same, then in a critique of Earth Jurisprudence in which I conclude that the philosophy is insufficiently disruptive of the foundational reason/nature dualism. The crux of this thesis is the contention that systems can be transformed by strategic intervention at key points at which the system is upheld or perpetuated. I argue that the legal subject is one such point in the Western social imaginary of mastery and control. More specifically, I argue that a construct of human identity, the master identity, to which the prevailing concept of the human legal subject (the rational, autonomous individual) corresponds, keeps the anthropocentrism of this system in play. Each of the contemporary concepts-in-use of the human legal subject has an origin story and various disciplines from which it draws its supporting ontological, epistemological and ethical commitments. The thesis draws from new cosmology, Big History, new materialisms and posthuman critical theory to tell the origin story for the proposed alternative legal subject, the Cosmic Person. By accounting for the earthliness of human existence, by which I mean the normative materiality of being embodied, embedded and entangled in a single plane of existence comprising a natureculture continuum, the Cosmic Person as legal subject takes into direct account the needs and interests of the whole community of life on Earth. Finally, the thesis examines the Waimea River Watershed Mediation Agreement as a case study in which the Cosmic Person is prefigured in a performance of posthuman normativity.<br>Thesis (Ph.D.) -- University of Adelaide, Adelaide Law School, 2019
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Bowman, Lorenzo. "Black and white attorneys' perspectives on race, the legal system, and continuing legal education a critical race theory analysis /." 2004. http://purl.galileo.usg.edu/uga%5Fetd/bowman%5Florenzo%5F200405%5Fphd.
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Heng-Ying, Lai, and 賴恆盈. "On the "Relation Theory of Administrative Law"------A Critical Analysis to Administrative Legal Methodology." Thesis, 2002. http://ndltd.ncl.edu.tw/handle/81772877225311275849.
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Mayrand, Helene. "Protecting the Arctic Environment in the Climate Change Context: A Critical Legal Analysis." Thesis, 2014. http://hdl.handle.net/1807/65702.
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The environmental challenges the Arctic region faces in the climate change context have prompted an abundant literature on what is to be done to protect the Arctic environment. The thesis addresses the question of what is international law’s role in promoting Arctic environmental protection, but taking a different perspective than previous research on the issue. It develops a new critical approach to analyze how international law adopted to protect the environment is in fact part of the problem. The theoretical framework bridges Martti Koskenniemi’s critical approach and the interactional account of international law developed by Jutta Brunnée and Stephen Toope. These two approaches provide conceptual and methodological tools to understand the mutual influence of international actors and structures on legal discourse. This framework is applied to four main Arctic environmental challenges in the context of climate change: increased oil and gas activities, increased shipping, adverse effects on indigenous peoples’ environment and culture and biodiversity depletion. For each case study, the thesis provide a three-stage analysis to understand the development of international law to address these issues, the influence of political considerations on such law and the normative potential of each of the different rules, standards, principles and rights to create a sense of legal obligation. This analysis sheds light on when international has enabled practices of legality, where international actors support the rule, right or standard at issue, fell bound by it and follow it in practice. The analysis also reveals the influence of the bias in favour of neoliberal development in legal discourse. This bias has favoured the development, interpretation and application of international law to promote the assertion of sovereignty over natural resources, industry deregulation, the promotion of trade, little consideration for indigenous peoples’ human rights and the consideration of biological resources in economic terms.
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Lin, Po-Nien, and 林柏年. "Study of Rights and Legal System on Taiwan’s Indigenous Peoples－by the perspective of Critical Race Theory." Thesis, 2005. http://ndltd.ncl.edu.tw/handle/16627357270511274374.
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Colgrove, Sarah. "Laws of the land: indigenous and state jurisdictions on the Central Coast." Thesis, 2019. http://hdl.handle.net/1828/11399.
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With discussion of Indigenous laws on the rise in Canada, this thesis explores the question of law’s power: jurisdiction. In this project, I ask whether Indigenous jurisdiction is active in conflicts between Indigenous and state actors over the environment, in the context of the Heiltsuk Nation on the central coast of British Columbia. This project looks to critical legal theory for an understanding of jurisdiction. It identifies three aspects of jurisdiction that are discussed in critical legal theory and related fields: that it is technical, it is authoritative, and it is spatial. Adopting these qualities as provisional indicators of jurisdiction, it applies thefzm to three case studies of Heiltsuk (or “Haíɫzaqv”) conflicts with the state, which engage colonial law in different ways. The three case studies concern (1) herring harvest and management, which was litigated in R v Gladstone; (2) land use and forestry, which is the subject of the Great Bear Rainforest agreements; and (3) trophy hunting for bears, which is the subject of a grassroots campaign based on Indigenous law. Adopting a qualitative approach adapted from institutional ethnography, this project applies a critical jurisdictional lens to each case study, using documentary review and interviews to explore the technical, authoritative, and spatial aspects of each conflict. Ultimately, I find that expressions of Heiltsuk jurisdiction – as understood from a colonial, critical perspective – are already at play in each conflict, although this is not immediately visible from the point of view of colonial law. In the conclusion, I explore the different manifestations and strategies of Heiltsuk jurisdictional expressions, and the ways that colonial jurisdiction interacts with them.<br>Graduate<br>2021-12-19
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Sloan, Karen L. "The community conundrum: Metis critical perspectives on the application of R v Powley in British Columbia." Thesis, 2016. http://hdl.handle.net/1828/7295.
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In this dissertation I argue for the need to develop a Metis Critical Legal Theory, or “MetCrit”, a theory that is particular to the cultures, issues and concerns of Metis people. Suggestions towards the development of MetCrit are proposed in light of the difficulties of Metis rights claimants in British Columbia following creation of the “historic community connection” test in R v Powley, the leading case on the constitutional protection of Metis rights in Canada. Misconceptions about BC Metis history and about Metis communities generally have resulted in legal decisions that hold there are no historic Metis communities in BC, and thus no communities capable of meeting the Powley test. The BC situation reveals that Powley, as it is currently interpreted, cannot adequately deal with the realities of Metis history or with Metis conceptions of community, and that the community connection test itself is flawed. MetCrit is proposed as a possible lens through which to examine BC Metis rights cases in light of the historiography of the Metis of BC, and through which to critique the Powley court’s attempt to concretize Metis community identities. I suggest that MetCrit could provide spectrums of space for avoiding some of the dualities that are reflected in Canadian legal and historical accounts of Metis people and communities.<br>Graduate<br>2020-04-19
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Steyn, Lienne. "A critical appraisal of the decision in Sonap v Pappadogianis 1992 (3) SA 234 (A), with reference to the basis of contractual liability in South African law and various other legal systems." Diss., 1994. http://hdl.handle.net/10500/16118.
Full textAbstract:
In Sonap Petroleum (formerly known as Sonarep) (SA) (Pty) Ltd v Pappadog1an1s
1992 (3) SA 234 (A) the Appellate Division apparently approved the direct
application of the reliance theory, without reference to prejudice or fault, to
determine contractual liability in the absence of consensus.
The various approaches to contractual liability in South African law are
examined, and a comparative study of English law and the law of the Netherlands
is conducted.
It is submitted that the element of fault is not crucial to the enquiry, but
rather, the elements of conduct , inducement and a reasonable reliance upon
consensus. It is concluded that the test for contractual liability in the absence
of actual consensus, as formula ted by the court in Sonap's case, without
reference to prejudice or fault, has established sound precedent in South African
law.<br>Criminal and Procedural Law<br>LL.M.
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Dhaliwal, Manpreet (Preeti) Kaur. "Re-embodying jurisprudence: using theatre and multimedia arts-based methods to support critical thinking, feeling and transformation in law." Thesis, 2017. http://hdl.handle.net/1828/8025.
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This thesis offers theoretical and practical explorations of how multimedia arts-based methods and embodied storytelling support critical and transformative understandings of law. Using theatre as both subject and method, the author demonstrates how laws live in bodies, with a focus on race, whiteness, migration and the Komagata Maru. Drawing on various theatre practices as well as critical race, feminist and performance scholarship, the author calls for a new way of interacting with law: jurisprudential theatre. Jurisprudential theatre is a method that employs autobiography, utopian visioning, legal research and audience involvement to create plays that examine existing law while filling affective spaces that existing law neglects. This method builds an alternate archive that supplements existing laws but can also be used to study them. The author explains the method through a performance art piece titled Re-embodying. She then uses jurisprudential theatre to examine the legal history of the Komagata Maru through case law and two play texts, all of which lay the groundwork for the method’s application in the first draft of a play titled Eustitia.
“Rather than laying my life and research out in a chronological, linear fashion with smooth transitions, this thesis blends scholarly, autobiographical, episodic and creative writing – sometimes abrupt, sometimes guided. This framework takes you on a journey to the Komagata Maru through my experiences and understandings of race, whiteness, law and trauma. This thesis asks you to bear witness while offering you life stories, performance art, the draft of a play, images and academic prose. I invite you to join me in a creative and performative process that will move you beyond the confines of the page to online worlds and internal realms. Why? To study and experience (as best we can in a text-based relationship) the internal and embodied consequences of law alongside its external, material and relational impacts.”<br>Graduate<br>0465<br>0398<br>0631<br>dhaliwal.preeti@gmail.com
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Coulson, Douglas Marshall. "The rhetoric of common enemies in the racial prerequisites to naturalized citizenship before 1952." 2013. http://hdl.handle.net/2152/21762.
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This dissertation examines the rhetorical strategy by which groups unite against common enemies as it appears in a series of judicial cases between 1878 and 1952 deciding whether petitioners for naturalization in the United States were "free white persons" as required by the United States naturalization act at the time. Beginning in 1870, the naturalization act limited racial eligibility for naturalization to "free white persons" and "aliens of African nativity and persons of African descent." Based on the conclusion that Asians were neither "white" nor African, many courts interpreted these provisions to reflect a policy of Asian exclusion. As the distinction between "white" and Asian became increasingly disputed, however, the racial eligibility requirements of the act raised difficult questions about the boundaries of whiteness. I examine the rhetorical strategies adopted in a series of these cases between World War I and the early cold war involving Asian Indian, Armenian, Kalmyk, and Tatar petitioners who were represented as political or religious refugees at risk of becoming stateless if they were denied racial eligibility for naturalization in the United States. I argue that by representing the petitioners in the cases as victims of persecution by the nation's adversaries, the cases reflect a rhetorical strategy of uniting against common enemies which is also prevalent in the legislative, executive, and judicial discourse surrounding the act. I argue that the prevalence of this rhetorical strategy in racial prerequisite discourse suggests that a martial ideal of citizenship often influenced racial classifications under the act and that by recognizing the ways in which this discourse adapted to the rapidly changing enmities of the early twentieth century, a rhetorical interpretation of the cases offers advantages over other interpretive approaches and highlights the value of a rhetoric of law.<br>text
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Mbatha, Khonzanani. "Sex workers as free agents and as victims : elucidating the life worlds of female sex workers and the discursive patterns that shape public understanding of their work." Thesis, 2019. http://hdl.handle.net/10500/26840.
Full textAbstract:
In South Africa and many other countries worldwide, sex work is criminalised. This
invariably seems to lead to back-door prostitution - an unregulated industry where sex
workers are vulnerable to being exploited by pimps, brothel owners and law enforcement
officers. In discussions about sex work and sex workers, two dominant views are evident: a)
Sex workers freely choose to sell sex as a good way of earning an income; or b) sex workers
are victims of their circumstances who are driven into the industry through direct coercion or
as a result of dire poverty. Together, these views lead to an ideological trap in terms of which
sex workers have to be perceived either as having agency and free will or as being helpless
victims in need of rescue. My aim in this thesis was to problematise, deconstruct and
reconstruct the discursive field within which sex work is embedded, in order to move beyond
agency-victimhood and similar binaries, and in the hope of developing new ways of talking
about prostitution that acknowledge the complexity of the sex industry rather than
shoehorning it into preconceived categories. Social constructionism (epistemology), critical
social theory (ontology) and discourse analysis (methodology) were interwoven in order to
provide a broad, critical understanding of prostitution. Two data sources were used to gain
access to and unpack the life worlds of sex workers: Semi-structured interviews with five sex
workers in Johannesburg and the “Project 107” report on adult prostitution in South Africa.
Foucauldian discourse analysis was used to make sense of the data, including an analysis of
how concepts such as governmentality, power, confession, surveillance and technologies of
the self can be applied to contemporary texts about prostitution. The “Project 107” report
recommended that prostitution should not be decriminalised, and that sex work should in fact
not be classified as work; instead, it proposed a ‘diversion programme’ to help sex workers
exit the industry. I show how, in doing this, the report appears to hijack feminist discourses about sex workers as victims in order to further a conservative moral agenda. The sex
workers I spoke to, on the other hand, demonstrated an ability to take on board, and to
challenge, a variety of different discourses in order to talk about themselves as
simultaneously agentic and constrained in what they can do by unjust social structures. I
show how, from a Foucauldian perspective, sex workers can be seen not as pinned down at the bottom of a pyramid of power, but immersed in a network of power and knowledge,
enabled and constrained by ‘technologies of the self’ to assist in policing themselves through
self-discipline and self-surveillance to become suitably docile bodies within the greater
public order.<br>Psychology<br>D. Litt. et Phil. (Psychology)