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Dissertations / Theses on the topic 'Law and Legitimacy'
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1
Weski, Emelie. "Law+Impunity=Legitimacy? Rethinking liberal legitimacy of international law with a feminist critical approach." Thesis, Malmö högskola, Fakulteten för kultur och samhälle (KS), 2012. http://urn.kb.se/resolve?urn=urn:nbn:se:mau:diva-23954.
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In here, the criminalization of sexual violence is a manifestation of increased recognition of feminism, and proof of international law reaching at liberal criteria for legitimization. Though, in making conclusions other necessary criteria for fully recognized legitimacy are acknowledged (such as other types of rights, types of security and other levels for analysis). Though, from a strict feminist critical approach the criminalization of sexual violence, and the extent of such criminalization can by itself prove legitimacy or illegitimacy.The criminalizing of sexual violence took place over 100 years ago, yet the systematic use of it in warfare was not publicly condemned until the ICTR (International Criminal Tribunal of Rwanda) and the ICTY (International Criminal Tribunal of former Yugoslavia) (Buss, 2009, p. 356) took on the duty to prosecute and convict. Still today women’s security and sexual violence are research fields that awake a lot of hostile emotions.Findings show that there is few, if any, affects for those tribunals that fail to bring justice to rape victims; calling for an analysis of Walzer’s political fit. The international praxis of impunity supports feminism in an existing ‘male truth’ risking the security of women. The legitimacy of the institution of international law is, however, not dependent on one legal procedure.Liberalist and feminist different interpretations of adequate necessity to create peace frame after 15 224 words a utilitarian illusion which slows down the pace of the implementation of a feminist security agenda. However, the progress is still evidence of strife towards the Kantian society of states. An inconsistent moral consensus finally results in the conclusion that this thesis cannot confirm the institution of international law illegitimate, arguably validating legitimacy.
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MOREIRA, OSCAR ALEXANDRE TEIXEIRA. "POPULAR INITIATIVE OF LAW: PARTICIPATIVE DEMOCRACY AND LEGITIMACY OF LAW." PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIRO, 2010. http://www.maxwell.vrac.puc-rio.br/Busca_etds.php?strSecao=resultado&nrSeq=17619@1.
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O presente trabalho tem por objetivo demonstrar como o instrumento de
iniciativa popular de lei pode representar a participação dos cidadãos na
construção e manutenção do ordenamento normativo. A utilização da Teoria
Discursiva do Direito de Habermas, como marco teórico, servirá para apontar um
caminho, ressaltando como o Estado Democrático de Direito deve contar com
cidadãos que são, ao mesmo tempo, autores e destinatários das normas jurídicas.
Pretende-se demonstrar que quanto mais os indivíduos participam como autores e
destinatários na formação da legislação, discutindo autonomamente em espaços
públicos, mais fortes são as possibilidades de efetivação da democracia.The present work has the objective of demonstrate how the instrument of popular legislative initiatives can represent the citizens participation on the construction and the maintenance of the normative ordering. Having the Habermas’ Law Discursive Theory, as the theoretical mark will serve to point a direction, emphasizing how the Fair State of law must rely on citizens, which are, at the same time, the authors and the recipients of the juridical standards. It searches to demonstrate that as much as the individuals act as authors and recipients on the construction of the law, discussing autonomously in public aspects, stronger are the possibilities of the effectuation of the democracy.
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Thomas, Christopher Alexander. "Input and output legitimacy in WTO law." Thesis, University of Cambridge, 2017. https://www.repository.cam.ac.uk/handle/1810/268032.
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This thesis provides an analysis of the complex relationship between law and legitimacy in the WTO. It focuses on the notional dichotomy between ‘Member-driven’ (input-based) and ‘results-oriented’ (output-based) narratives of the WTO’s legitimacy, and how such narratives are both framed by, and reflected in, WTO law. It demonstrates how these narratives are used to legitimate the exercise of legal power in ways that exceed the reach of their internal normative claims; how they are used to displace responsibility for decision-making in the WTO; and the consequences of choosing to emphasize particular forms of legitimacy for our understandings of the WTO’s place in the world. In the process, the thesis also seeks to destabilize these legitimacy narratives by highlighting their partial, contingent and often mutually contradictory natures. The thesis proceeds in three parts. The first part (Chapter Two) clarifies what is meant by the terms ‘power’ and ‘legitimacy’ as used in the thesis and stresses their significance for WTO law. The second part (Chapters Three and Four) addresses two key input-oriented narratives of legitimacy associated with WTO law — those of consent and democracy. It argues that although consent has been central to understanding the legitimacy of WTO law as it is, and democracy is increasingly advanced in relation to WTO law as it should be, both narratives suffer from serious normative and descriptive limitations. The third part delves further into the concept of output legitimacy and its limits (Chapter Five), before exploring its application in relation to the legal-institutional dynamics of WTO negotiation rounds (Chapter Six) and the treatment of economic evidence in WTO dispute settlement (Chapter Seven). This part ultimately concludes that a more critical engagement with the concept of output legitimacy could open up productive avenues for rethinking the law and practice of the WTO.
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Sibanda, Allan K. M. "International law legitimacy and the UN Security Council." Diss., University of Pretoria, 2015. http://hdl.handle.net/2263/53188.
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The salient issues concerning the powers of the United Nations Security Council culminate in questions of legitimacy. In terms of the United Nations Charter, the Council has a wide margin of discretion, and while its powers of appreciation are generally accepted as non-justiciable, its members are not independent. The Council has often been criticised for its selective performance, its composition and privileges of tenure, and the lack of transparency in its procedures. The objective of this study is to establish an analytical framework of legitimacy for the Council. As a point of departure, the study examines the limitations to the powers of the Council under the auspices of international law. These are expressed in two categories: the UN Charter, and jus cogens. Thereafter, the study develops a model of the content of legitimacy for the Council, based on a notion of legitimacy which encompasses legal, moral and sociological aspects. Three traditions are at the heart of this model. These are the instrumentalist, procedural and constitutional traditions respectively. The established framework proposes a minimal threshold for the Council to legitimately exercise its discretion, as an extension of the Charter based legal threshold, from which the Council derives its authority. The study is inspired by efforts in literature, to develop the new value-based approach to international law, whilst maintaining the coherence of the international legal order. The established framework provides a feasible means to assess the legitimacy of the Security Council, and in tandem provides space for further research.Mini Dissertation (LLM)--University of Pretoria, 2015.
Jurisprudence
LLM
Unrestricted
5
Hübner, Catharina [Verfasser]. "The Legitimacy of the Afghan Amnesty Law under International Law / Catharina Hübner." Baden-Baden : Nomos Verlagsgesellschaft mbH & Co. KG, 2020. http://d-nb.info/1225182360/34.
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Farris, Jeremy Daniel. "Authority, philosophical anarchism, and legitimacy." Thesis, University of Oxford, 2009. http://ora.ox.ac.uk/objects/uuid:75985fea-1102-4cf1-a05a-a13e3a14f9b1.
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One way to prompt people to act is to claim that one’s commands impose duties upon some persons to act and subsequently to command those persons. This is the approach of practical authority. The claim of practical authority is ingredient to a predominant conception of the state. This thesis argues that the state’s claim to practical authority is both unjustified and morally wrong; it defends philosophical anarchism. The philosophical anarchist argument advanced here begins with a defence of a presumption against practical authority. It then argues that no argument for the practical authority of the state overcomes that presumption. Thus the state’s claim to practical authority is unjustified. The philosophical anarchist’s position suggests that we rethink both the normative claim ingredient to the concept of the state and the relationship between states and persons. This thesis suggests that states claim legitimacy – that is, states claim that the potentially coercive legal directives that they enact are all-things-considered morally permissible. The thesis outlines the ideal of legitimacy in political philosophy, an ideal distinct from authority. An analysis of legitimacy requires an analysis of coercion. The thesis develops a specific account of the pro tanto wrongfulness of coercion that locates the wrongfulness of coercion not with the badness of the outcomes that the coercee faces but rather with the beliefs and intentions of the coercer. Two upshots emerge from that account. The first is that legal directives are not necessarily coercive. The second is that the conditions which render coercion pro tanto wrongful also render the state’s claim to practical authority wrongful. However, whereas coercion is justifiable by an appeal to reasons that defeat its pro tanto wrongfulness, the philosophical anarchist shows that the state’s claim to practical authority is not so justifiable. Therefore, the state’s claim to practical authority is decisively wrongful.
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Charters, Claire Winfield Ngamihi. "The legitimacy of indigenous peoples' norms under international law." Thesis, University of Cambridge, 2011. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.609841.
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Elliot, Mark Christopher. "The constitutional legitimacy of judicial review in English law." Thesis, University of Cambridge, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.413114.
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Babatunde, Elkanah Oluwapelumi. "Humanitarian intervention: legality, legitimacy and the search for solutions." Master's thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/24936.
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Humanitarian intervention refers to the use of force for the protection of human rights in a foreign state and usually against the will of the state in which force is used. The legality of unilateral humanitarian Intervention is a widely contested area in contemporary international law. It is a discussion that cuts across law, morality and foreign policy. Humanitarian intervention brings to the fore the contention between the principles of sovereignty and political independence on one hand and human rights and the principle of common humanity on the other hand. Some scholars contend that humanitarian intervention is a violation of the principles of sovereignty and political independence of states and violates Article 2(4) of the United Nations (UN) Charter. Other scholars have argued that Artcicle 2(4) of the UN Charter does not prohibit the use of force for human rights purposes but rather prohibits use of force which is targeted against a state's political framework or territorial annexation. They argue further that huamn rights constitutes one of the purposes of the UN and it is therefore unthinkable that the UN Charter will prohibit the use of force for such a purpose as human rights. Humanitarian intervention thus stands at the crossroasds of very foundational principle of both customary international law and the UN Charter. In this thesis, I argue that humanitarian intervention is illegal under the UN Charter as it does not fall within the two exceptions to the use of force: self-defence and Security Council sanctioned use of force. However, I go further to argue for the legitimacy of humanitarian intervention based on the principles of common humanity and wider principles of sovereignty. This argument draws from the just war doctrine as postulated by Grotius and other early just war theorists. The need to allow for unilateral intervention is pertinent given the rise in the abuse of power by some governments. Sovereignty should not be an umbrella that shields human rights abuses.
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Milano, Enrico. "Unlawful territorial situations : reconciling effectiveness, legality and legitimacy in international law." Thesis, London School of Economics and Political Science (University of London), 2004. http://etheses.lse.ac.uk/2778/.
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While the last few years have seen a strong attention by international lawyers towards alleged breaches of Article 2(4) of the UN Charter, much less attention has been devoted to the effects produced by such interventions upon the victim state. Article 2(4)'s main function is arguably to protect the 'territorial integrity or political independence' of states, and the aims and effects of military interventions often undermine states' territorial sovereignty well after the cessation of the hostilities. The thesis sheds light on the extent to which international law protects states' and peoples' territorial sovereignty by studying the phenomenon of unlawful territorial situations. An unlawful territorial situation can be defined as a territorial occupation established and maintained as a result of a violation of international law, such as in the case of the illegal use of force. The thesis analyses unlawful territorial situations through the lenses of the legal-normative concepts of effectiveness, legality and legitimacy. The concept of effectiveness as a device for transforming effective realities into law was considered one of the fundamental principles of international law during the 19th century and the first part of the 20th century. It deeply influenced the notions of statehood and territorial sovereignty as inherited by contemporary international law. However, the second part of the 20th century has seen the emergence of principles of substantive legality limiting the action of effectiveness as a source of territorial entitlement. The thesis shows how a situation of territorial unlawfulness can be defined with regard to four international legal principles: the prohibition against the change of territorial status through the use of force; uti possidetis iuris, self-determination; and territorial integrity. The thesis appraises the significance of effectiveness vis-a-vis these principles in the context of unlawful territorial situations. It argues that while effectiveness is no longer a fundamental principle of international law, it plays an important role when accompanied and enhanced by the legitimacy of the underlying claim, or by the external legitimation of an authoritative body, e.g. the Security Council. Whereas legitimacy is a concept supposedly built on the fundamental principles of the international community, it goes beyond positive legality, and it often represents a less objective, less transparent and less egalitarian device of power acceptance and recognition. However, adopting legitimacy as a device for transforming illegal effectiveness into a legal one, is paradoxically a way for the international community to safeguard the integrity of its principles of substantive legality, despite making them in some cases peripheral to the actual regulation of disputes.
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Ho, H. L. "Truth and legitimacy in the law of evidence : a theoretical enquiry." Thesis, University of Cambridge, 2002. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.435384.
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Milano, Enrico. "Unlawful territorial situations in international law : reconciling effectiveness, legality and legitimacy /." Leiden [u.a.] : Nijhoff, 2006. http://www.gbv.de/dms/spk/sbb/recht/toc/506618226.pdf.
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Mwaihomba, Agnes. "State creation: the legitimacy of unilateral secession and recognition in international law." Master's thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/25483.
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Since the twentieth century, the proliferation of new States has not declined in the twenty first century. Several small territories have declared themselves as sovereign States by claiming statehood in international law. These developments have a significant measure in many respects of international law notions of self-determination, secession, recognition and de-colonisation. A State remains a primary subject of international law. Despite the fundamental legal framework on the creation of States enshrined in the Montevideo Convention on the Rights and Duties of States 1933 (Montevideo Convention), the creation of States and unilateral secession remain part of the controversial and unsettled issues of international law. This is because of the legal and factual situation that evolves around the concept of State creation and unilateral secession. While the legal framework on State creation is in place, other new criteria continue to develop, alongside are the concepts of unilateral secession and self-determination. It therefore follows that in any given situation of contemporary international law, the concepts of State creation, secession and self-determination cannot be discussed in isolation. In this thesis, I will analyse the notions of statehood, secession and recognition. I will argue that in contemporary international law or post-colonial era, unilateral secession and satisfying the traditional criteria of statehood does not qualify the clamant entity to become a new State. Secondly, I will argue that although recognition is not a rule of customary international law, State practice on recognition and other suggested criteria play a significant role with regards to creation of States in international law. Thirdly, the Republic of Somaliland as a case study will be analysed against the criteria of statehood and the application thereof. The study will also provide a general analysis of a few specific cases of successful and unsuccessful attempts at secession.
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Van-Rooyen, David Patrick. "The legitimacy of international law : re-examining the theory of state consent." Thesis, Durham University, 2019. http://etheses.dur.ac.uk/12934/.
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With the post-WWII acceleration of globalisation and the proliferation of transnational concerns (such as nuclear armament, financial instability, climate change, the spread of diseases etc.), there has been a concomitant increase in international laws and institutions designed to regulate this activity and facilitate international cooperation. This widening and deepening of international law brings to the fore normative concerns about how and from where international law derives its legitimacy. Indeed, international legal institutions have been suffering a 'crisis of legitimacy' in recent years: from the 1999 'Battle of Seattle' to Brexit. This thesis aims to contribute to the philosophical literature on the political legitimacy of international law. In particular, it seeks to morally evaluate the traditional theory of international legal legitimation: 'state consent'. After conducting an in-depth conceptual analysis of three key concepts (international law, political legitimacy, and state consent), the thesis will consider six arguments against the proposition that state consent is either sufficient or necessary for the legitimacy of international law. I conclude that state consent is not 'sufficient' as - to properly legitimate international law - state consent would need to fulfil the additional necessary requirement of being 'authorised' by the individuals within the state; arguably through a process of deliberative democratic decision-making. I also conclude, however, that state consent may be 'necessary' for the legitimacy of a certain category of international law; namely, the international law of 'cooperation' (as opposed to 'coexistence'). The thesis ends by tentatively suggesting proposals for how international law may increase its claim to legitimacy under the existing state-consent model: first, by incentivising a process of internal democratisation, and second, by establishing an international 'harm principle' that better protects third-parties from indirect harm.
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Simpson, Gerry J. "The right of succession in international law : a new theory of legitimacy." Thesis, University of British Columbia, 1989. http://hdl.handle.net/2429/27369.
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Secession is the process by which a territorially discrete entity within a state achieves independence from that state. In this thesis a code of legality is devised which legitimizes secession in certain cases without advocating the breakdown of world order.
The right of secession envisaged derives its force not from political concepts such as democracy, liberalism or socialism, but from the right in international law to self-determination. To this end, an historical introduction is offered which traces the historical roots of the right to self-determination and its earliest connection with secession. This study illustrates how the transformation of self-determination from political principle to legal right in the era of the United Nations and decolonization led to a restrictive interpretation of the concept. This interpretation, it is argued, has neglected the link between self-determination, human rights and the right to secede. Self-determination has consequently been drained of significance at the very moment when it should be in the vanguard of the quest for a world order based on respect for human rights.
This study, therefore, has several purposes. First, a basis in international law for a right of secession is sought by analyzing the provisions of several United Nations Declarations on self-determination. Second, the humanitarian potential of the right of secession is realized by renewing the link between human rights and self-determination in a novel theory of legitimacy. Third, an index of validity is outlined by which the legitimacy of a particular secession can be ascertained using criteria which take into account political, economic and moral as well as legal factors. This index is referred to throughout the paper in five case studies which illustrate the varying practical consequences of applying this theory of legitimacy. In this way, a theory of secession is proposed which subscribes to the rules of international law and the realities of the international political system while providing a conceptual foundation for a humane world order.Law, Peter A. Allard School of
Graduate
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Al, Harbi Bandar Eid. "Constitutionalism, constitutionalisation and legitimacy : reforming Al-Shura Council law in Saudi Arabia." Thesis, Brunel University, 2014. http://bura.brunel.ac.uk/handle/2438/10606.
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Saudi Arabia is being challenged by increasing demands for democratic reform. Although many Saudi citizens desire such change, in order to maintain stability, dramatic and rapid reform is not considered prudent. Nor is the adoption of a Western model of democracy seen as a way forward. Indeed, such a shift would be counterproductive for most Islamic nations. A more measured approach, introducing reforms that build on traditional Islamic democratic ideals, would help to maintain stability and legitimacy for the various stakeholders involved. Consequently, attention has been turned to the ‘Majlis Al Shura’ or the Al-Shura Council, an Islamic Advisory Council that ensures policies and laws follow the principles of Islam. Shura, developed from the Holy Quran, is an ancient practice that has profound significance in Arab culture and history. It provides a framework which ensures scholars and experts from a variety of backgrounds are consulted on issues related to governance. Currently, the role the members play in governance of the Saudi State is decided by the King, who appoints individuals to the Council according to their perceived suitability. However, the Saudi Arabian Al-Shura Council is a highly respected institution. Allowing citizens to elect members, rather than having the King holding the authority to appoint them, would not only be well received, but would create a more effective check on governmental power, help satisfy the demand for more citizen input into public affairs, and pave the way for future, more substantial reform, if desired by Saudi society.
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Berg, Julie. "Polycentric security governance : legitimacy, accountability, and the public interest." Doctoral thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/15493.
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This thesis examines how power is constituted in hybrid polycentric systems of security governance. In particular, the thesis explores how legitimacy - as one form of power - is configured in Improvement Districts in South Africa, with a specific focus on three ways by which it is gained: through promoting public participation in decision-making; through transparent and accountable policing nodes; and through the delivery of effective security for the public good. Polycentric systems of security governance are usually composed of a number of policing or security nodes that are independent of each other, but take account of each other in relationships of co-operation or conflict and where no single node dominates all the rest. In other words, some or all of these nodes, may co-ordinate around specific security problems or events in a sustained manner. The functioning of polycentric security governance was explored in Improvement Districts in Cape Town and Johannesburg, as they are an exemplar of polycentricity in the way that they operate. Qualitative field research was employed using a nodal analytical framework and a collective case study approach. In-depth interviewing, participant and direct observation as well as documentary analysis were the primary research methods employed. The findings of the research reveal that polycentricity impacts on legitimacy in a number of ways. Legitimacy may originate from multiple sources and state and non-state policing nodes within polycentric security governance systems may undermine, enhance and/or co-produce democratic participation, accountability and security for the public interest. There are a number of factors or conditions that shape whether polycentric systems of governance are legitimate and how they derive this legitimacy. The main finding of the thesis is that for a polycentric system to be aligned to the public interest, it needs to be motivated by public, peer and political expectations, amongst other things. The findings of the thesis both challenge the normative tendency to associate democratic legitimacy with the state and contribute to the pressing question of how to theoretically account for the empirical reality of polycentric security governance systems.
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Widder, Elmar Richard. "A fair trial at the International Criminal Court? : human rights standards and legitimacy." Thesis, University of Hull, 2015. http://hydra.hull.ac.uk/resources/hull:13606.
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Can the procedure at the International Criminal Court be regarded as fair? And why is the level of fairness important for the ICC’s legitimacy? This thesis argues that the right to a fair trial is an indispensable prerequisite for international tribunals and that the ICC’s level of procedural fairness can be improved despite the Prosecutor’s obligation to search for inculpatory and exculpatory evidence equally. Questions of procedural fairness typically involve the principle of equality of arms and the right to adversarial proceedings. My argument is different. In a comprehensive analysis, I create a yardstick drawn from regional human rights decisions and the Human Rights Committee and measure the ICC’s procedure against this yardstick. The upshot is that the ICC’s procedure does not violate any procedural human rights law. Rather than being a cause for complacency, however, this apparently favourable result reveals an important limitation of existing legal standards of fairness: they do not take sufficient account of the importance of the investigative process as an integral part of a fair trial procedure. My argument draws on the work of Niklas Luhmann and Ronald Dworkin to argue that a weak level of fairness may lead to a loss of the ICC’s legitimacy, and that an adequate account of fairness must find a middle ground between an exclusive concern with procedural rights on the one hand or accuracy of outcomes on the other. An alternative is needed to a Prosecutor, who is required, on the one hand, to carry out investigations impartially and, on the other hand, to become a trial party at some point of the procedure. Having considered the option of a Co-Investigative Judge, this thesis concludes that fair trial procedures at the ICC can be improved through the setting-up of an Investigation Oversight Office and explains why such an office would achieve an enhancement in terms of fairness, procedural impartiality and expeditious trials.
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Wieczorek, Irene. "The Legitimacy of EU Criminal Law: what roles for normative and instrumental justifications." Doctoral thesis, Universite Libre de Bruxelles, 2016. http://hdl.handle.net/2013/ULB-DIPOT:oai:dipot.ulb.ac.be:2013/239390.
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The aim of this thesis is to analyse the EU approach to the question of the legitimacy of criminal law. In particular, it enquires into what theoretical justifications does the EU legal order acknowledges as legitimating the resort to harmonized criminal law as a regulatory instrument. Moreover, it enquires if the selected approach is consistent with the identity the EU has set for itself, as a ‘fundamental rights sensitive’ kind of supranational organization, as established at Article 2 TEU, which includes the respect of fundamental rights as one of EU founding values. This research aims at complementing the existing literature theorising on harmonisation of substantive criminal law as a strategy for integration, which has to date primarily focused on the extent of the EU competences, and on the relation between harmonisation and other strategies of integration, such as mutual recognition. The aspect of the impact of the exercise of these EU competences on individuals and of what are the envisaged justifications for that has been to date underexplored. This thesis aims at filling this gap. In doing so it aims at contributing to the systemic understanding of EU criminal law testing its developments against a EU constitutional law benchmark. In terms of methodology, the thesis relies on a criminal legal theory framework, which distinguishes between a normative, value-based approach to the justifications for criminal law, and an instrumental, mainly enforcement-based approach. It tailors these concepts to the supranational level, by combining criminalisation theory concepts with theories on harmonisation. In terms of sources, when enquiring the EU approach to the criminal law, the thesis looks at EU primary law (principles of subsidiarity and proportionality, and EU competences to harmonise substantive criminal law); EU policy documents (multi-annual programs and ad hoc EU criminalisation policy documents) and EU secondary law (especially the Racism and Xenophobia Framework Decision on Racism and Xenophobia and on the 2014 Market Abuse Directive).In terms of structure, the thesis devotes the first two chapters to the delineation of the theoretical framework, discussing criminal legal theories on the subject of of the legitimacy of criminal law, and theories on harmonisation of criminal norms. This part is aimed at identifying the analytical tools through which EU primary law, EU secondary law and EU policy documents are analysed in the following 5 chapters. A final chapter draws the relevant conclusions as to the consistency of the EU approach to the legitimacy of criminal law with the EU constitutional law framework. The findings of the thesis illustrate how the EU has not been consistent in its approach to the legitimacy of EU criminal law and it identifies a number of micro-ruptures between the approach in different historical phases; but also between different layers (EU primary and secondary law as well as policy documents) during the same period; and between different policy areas (e.g. EU criminal law was used to protect the security of EU citizens, and when to secure the achievement of EU policies). The thesis nonetheless identifies a macro-synchrony, which sees an historical progressive acknowledgement of a normative approach in a previously pre-existing instrumental context. This progress was positively evaluated as it contributed to increase the coherence of EU criminal law with EU constitutional law benchmarks.Doctorat en Sciences juridiques
info:eu-repo/semantics/nonPublished
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Gashi, Ermal. "International Criminal Court : A mechanism of enforcing Internaional Law." Thesis, Linnéuniversitetet, Institutionen för statsvetenskap (ST), 2015. http://urn.kb.se/resolve?urn=urn:nbn:se:lnu:diva-44472.
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El-Jazara, Zain Abdulla. "Institutionalized Since Adolescence: Deconstructing the Legality and Legitimacy of Israel’s Incarceration of Palestinian Children." Scholarship @ Claremont, 2016. http://scholarship.claremont.edu/cmc_theses/1395.
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A disturbing average of 600 Palestinian children are prosecuted by Israeli military courts every year. Three fourths of the children experience some form of physical violence during their arrest, interrogation, and/or detention. On the contrary, Jewish Israeli children never face the brutality of a military court system with a 99.74% conviction rate of Palestinian minors. The aim of this thesis is to examine the “legal” systems responsible for discriminatorily incarcerating an average of 200 children in military jails on a monthly basis. Central questions to my thesis ask: is this behavior legal and legitimate by Israeli legal standards? Can the same be said about the standards set by international law? What defines and distinguishes a legal system? Finally, how should we punish children, if at all? This thesis argues there is a severe lack of legality and legitimacy behind Israel’s rampant and unrestricted incarceration of Palestinian minors, be it by Israeli or international measures.
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Sabuj, Mohammad Zakaria. "The legitimacy and compatibility of use of force (jus ad bellum) in public international law and Islamic international law." Thesis, Northumbria University, 2018. http://nrl.northumbria.ac.uk/36285/.
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Despite the general prohibition of using inter-state force imposed by Article 2(4) of the United Nations Charter, force has been used under the auspices of self-defence, collective security and humanitarian crises. Such use of force has brought challenges to international law regarding its existence and efficacy. Although no state has denied the validity of such prohibition, many attempts have been made to legitimise use of such force on different grounds, namely exception, expansion and explanation. Unlike Public international law, Islamic law of Nations (Siyar) does not provide for a general prohibition of use of force but recognises circumstances in which such force can be legitimately used. The compatibility of these conflicting provisions of legitimate inter-state use of force offered by these two systems are significant for the prevention of aggressive use of force. The assessment of legitimacy of these conflicting provisions shall reveal where the legitimacy lies - is it in Islamic international law or Public international law or both or none of them? The results of the legitimacy assessment demonstrate that these two systems could sit in plural fashion by complementing each other’s legitimacy-deficits. However, the legitimacy and compatibility of Public international law and Islamic international law significantly depend on the development of an underlying pluralistic legal framework of international law with a healthy dose of legitimacy. Therefore, a comparative analysis of these two systems reveals the extent to which a complementary legal framework could be compatible and legitimate. The comparative analysis of the legitimacy of use of force in Public international law and Islamic international law includes examination of classical and contemporary sources to identify the existing legitimacy deficits of the two systems. The analysis follows on an inquiry into the the compatibility of these potentially two conflicting legal systems to complement each other. In this regard, the research expands on another inquiry into how the existing legitimacy deficits of the two systems could be overcome. Generally, this thesis seeks to address three fundamental and interrelated research questions, namely - (1) To what extent use of force in Public international law and Islamic international law is legitimate? (2) How the legitimacy deficits of Public international law and Islamic international law could be overcome? (3) Whether use of force in Public international law and Islamic international law can be compatible in modern world to secure higher degree of legitimacy?
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Krehoff, Bernd Michael. "The legitimacy of international legal institutions." Thesis, University of Oxford, 2011. http://ora.ox.ac.uk/objects/uuid:ab3cf53c-bc7e-4140-a532-bb0696d2e44a.
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This thesis is about the legitimacy of political authority in general and international legal institutions (ILIs) in particular. It is divided into two parts with three chapters corresponding to each part. The first part presents an account of legitimate political authority that is based on Joseph Raz's service conception of authority but also makes some important modifications to it. The central claim of the first part is that the legitimacy of political authorities in general, as measured by the standard of Raz's Normal Justification Thesis, depends in a crucial way on the ability of the subjects to get involved –more so than Raz is prepared to admit– in the activities that are relevant in the political domain. The thesis offers a general account of legitimate political authority, i.e. one that is valid for any type of political authority. The second part, however, examines the implications of this account for the legitimacy of ILIs. These are non-state authorities, such as the World Trade Organisation or the International Criminal Court, that deal with problems of global political relevance. Because of this global approach, the subjects of ILIs (i.e. those whose reasons are to be served by the ILI) are not confined to the boundaries of regions or states, but distributed across the world. ILIs operate by creating, interpreting, and applying public international law. Despite some striking differences between ILIs and other types of political authority (particularly states), I argue that they all ought to be measured by the same standard of legitimacy, namely the Normal Justification Thesis. But I also argue that the requirements for meeting this standard of legitimacy may vary according to the type of political authority (especially with regard to the requirement of democracy).
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Wolff, Immanuel. "Afghanistan and the Problem of Legitimacy in International Public Law Implications for the Legitimate Use of Force in Response to Terrorist Attacks /." St. Gallen, 2008. http://www.biblio.unisg.ch/org/biblio/edoc.nsf/wwwDisplayIdentifier/05610720001/$FILE/05610720001.pdf.
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Chigara, Benedict Tendayi. "The process of custom and the legitimacy of norms of customary international law : a deconstructionist perspective." Thesis, University of Nottingham, 1998. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.267675.
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Yong, Caleb Hoe-Kit. "Justice, legitimacy, and movement across borders : a political theory of international migration." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:7f94a135-778d-45cd-acdf-e5e15adba7f1.
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Existing moral reflection on immigration law and policy is caught in an impasse between (1) proponents of an individual right to free international migration and (2) proponents of a state’s right to control its borders. In Chapter 1, I examine arguments supporting an individual right to free international migration. I show that the case for this putative right cannot be settled solely by considering the strength of individuals’ interest in being able to cross international borders according to their choice. Rather, at a crucial point, the argument for an individual right to free migration turns on the truth of a particular conception of global justice. In Chapter 2, I examine arguments supporting a state’s right to control its borders. I contend that these arguments do not seek to defend the substantive justice of restrictive immigration policies, but rather the legitimacy of processes of political decision-making by which states unilaterally determine their own immigration policies. Abandoning this right-versus-right paradigm, I recast the debate by focusing on two distinct questions: (1) the question of justice in immigration, which substantively evaluates immigrant admission policy; and (2) the question of the legitimacy of immigration law enacted by procedures responsive only to states’ internal political decisions. I further propose that in articulating principles of justice in immigration, we should first develop a conception of global justice which will provide the background for our evaluation of immigration policy. In Chapter 3, I develop and defend a conception of global justice I call cooperation-based internationalism. I argue that co-citizens are joint participants in a scheme of cooperation which provides them with the social goods they need to lead autonomous lives. They therefore owe each other special duties of social justice. In addition, I argue for a duty of assistance which applies among all human persons globally. This duty requires developed states to assist developing states in establishing minimally just institutions. In Chapter 4, I develop a conception of justice in immigration against the background of cooperation-based internationalism. I argue that there is no requirement for states to allow open immigration. Nevertheless, I argue that co-citizens owe each other duties which impose significant moral constraints on immigration policy: states must (1) allow for family unification; (2) eschew policies that select immigrants based on criteria that unjustly call into question the fitness for citizenship of certain current members; (3) regulate labour immigration so that all current citizens benefit equally unless unequal gains benefit worse-off citizens. The duty of assistance is also imposes constraints on immigration policy. Developed states should (4) avoid immigration policies which cause brain drain harmful to international development and (5) admit and resettle refugees. In Chapter 5, I turn to the distinct question of the legitimacy of unilaterally-enacted immigration law. I argue that the application and enforcement of immigration law counts as a coercive exercise of political power which stands in need of justification. I examine the consent and natural duty of justice theories of political legitimacy, concluding that these influential theories cannot establish the legitimacy of immigration law. I conclude by considering the implications of the illegitimacy of immigration law for the evaluation of irregular migration.
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Kliem, Tobias. "A step towards 'perpetual peace'? legitimacy in international law and UN Security Council reform." Thesis, University of Kent, 2013. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.653060.
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My thesis is that the Security Council of the United Nations is still relevant in today's world, but it needs to change to maintain and strengthen its position as the central body for decisions on international peace and security. The key to this position is the concept of legitimacy, which will be explored in the first two chapters. While the first chapter explains what legitimacy means and why it ';tatters in world politics, the second chapter will explore in more detail what factors matter in the sociological conception of legitimacy of international organisations used in this thesis. The indicators arising from this broadly fit into the areas legality, democracy, justice and outcome. These indicators are then used to test how the United Nations Security Council has acted in the two major cases where force has been used with the autliorisation of the United Nations: the Korean War of the 1950s and the first Iraq War fourty years later. Both case studies show that the decision making structure within the United Nations and therefore the authorised wars suffered from major problems in terms of their legitimacy. The final two chapters then take up these problems to look into the proposals that were made to reform the Security Council. The thesis proposes some changes that are not completely unrealistic and that could help the Security Council to become the relevant actor it was supposed to be.
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Depaigne, Vincent. "The legitimacy of the secular state : people, culture and rights in comparative constitutional law." Thesis, SOAS, University of London, 2015. http://eprints.soas.ac.uk/20322/.
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The argument of the present thesis is that the withdrawal of religion as a source of legitimacy raises the issue of the foundations of the secular state and how the secular state has responded to this "legitimacy gap". The hypothesis developed here is that the "secular" should not be seen as separating culture (including religion) and politics, but rather in terms of how these two dimensions can be linked. Max Weber's theory of legitimacy and social contract theories are based on a move from traditional forms of authority towards modern forms of legitimacy, but do not provide a complete answer to the "legitimacy gap". It is suggested that modern constitutional law has moved away from a "substantive" legitimacy, based in particular on natural law, towards a "procedural" legitimacy - based on popular sovereignty and human rights - which leaves unanswered the issue of the nature of legitimacy in a secular/modern state. The dynamics of the problem developed above, that of the legitimacy of the secular state, will be explored by looking at the constitutional responses to this problem through three models of constitutional legitimacy which articulate in different ways three main sources of legitimacy (people, rights, culture): the "neutral model" (constitutions based on the "displacement of culture"); the "multicultural model" (constitutions based on diversity and pluralism); and the "asymmetric model" (constitutions based on tradition). The exploration of these models through three case studies - France, India and Malaysia - will show how secularism has moved either towards "nationalisation", being linked to a particular national identity (as in France and, to some extent, in India), or towards "de-secularisation", under pressure from religious or cultural identities (as in the case of Malaysia). The secular should thus be seen as a process of cultural (and religious) reform rather as a separation from culture (and religion).
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Lavers, Jacqueline Troy. "An appraisal of the legitimacy of extraterrestrial jurisdiction in criminal law and economic sanctions." Thesis, University of Kent, 2005. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.420830.
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Mohammadi, Mohammad. "Legitimacy of power in the constitution of the Islamic Republic of Iran." Thesis, University of Bradford, 1998. http://hdl.handle.net/10454/4345.
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Over the few years that led to the creation of the constitutional law of the Islamic republic of Iran, I (the author) noticed a series of ambiguous and often contradictory points in its contents. Discovering the roots and the causes of such contradictions became my priority. After the Iranian Revolution (1979) intellectuals were confronted with very new experiences. For example, Shi'ah has always been a minority in the history of Islam. Therefore, Shi 'ah Fuqaha never experienced direct rule over people. Direct pressures from this new experience brought about the desire and the need for a shift in certain interpretations of the Shi'ah tradition. It became evident that religious laws did not have in them the power and the wisdom to provide answers to the issues and dilemmas of the modern times, hence the need for a fresh approach. One such issue was the discussion of legitimacy of power. 18 years on, the heated debate is still ongoing. Traditional Shi'ah theorists believed that all rulers are illegitimate except the one that represents the 12th Imam who has been absent for the last 1000 years. According to Shi'ah, this representation can only be made by elite clergy who have the ability to understand, fully, the history of Islam and Shi'ah. They also claim that Shari 'ah laws must be implemented in their entirety and according to the teachings of Qur'an and the 12 Infallible Imam. They further argue that the people as a whole have no role in determining the legitimacy of the ruler, as He has been appointed to implement divine laws and people must obey. With time, though, such attitudes were modified. Especially after the Islamic revolution in Iran (1979), new interpretations began to surface. Discussion of three fundamental elements relating to the shift of the Islamic viewpoints during the last 100 years and in particular after the Iranian revolution (1979) forms the main body of this thesis. These are: " Divine law " Divine Ruler " Role of the People The hypothesis of the thesis is that fundamental philosophical positions on all of the above three issues have been the subject of change and modification, to some extent and according to "time" and "place". This change does not reflect the abandoning of the Islamic faith by Muslims, but rather indicates the ability of this dynamic religion to modify itself with time'. These changes have also been associated with varying degrees of ambiguity and contradiction, which will be the subject of detailed discussions in this work. Viewpoints of other outstanding scholars who tried to address these issues will also be presented. Two theories have been expressed in relation to the shift in the Shi'ah political thinking; " Islam's ability to adapt with "time" and "place" and new issues " "Change", in itself, defies the very existence of religion Both theories have been the subject of extensive debates. Traditional Muslims and Non-Muslims criticise Islam for supporting the latter view, whereas revivalists sympathise with the former. It must be mentioned also that reference throughout 1 Iqbal. Enayat. Lambton II this work is only made to those scholars who have used Islamic sources for their reasoning, i. e., not to many others who have engaged in these discussions as independent figures. Also discussed- will be the traditional Islam represented by the majority of the Assembly of the Islamic Experts (Majles-i Khobregan) which in effect was the main creator of the Iranian Constitution.
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Lopez, Victor S. "Electing State Court Judges| Harmonizing Democracy with Judicial Review in Pursuing Balanced State Government and Legitimacy." Thesis, University of Nevada, Reno, 2018. http://pqdtopen.proquest.com/#viewpdf?dispub=10809285.
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Traditional democratic political theorists promote the idea that Supreme Court exercises of judicial review create a counter-majoritarian difficulty , theoretically threatening the foundation of American democracy. Nevertheless, Alexander M. Bickel and other writers, while accepting this premise, seek to reconcile the judicial review power with democratic principles. This thesis rejects the existence of a difficulty. It proposes a historically-based approach for studying democratic theory which considers the elective reality among state judiciaries, and then including these judges’ decision making in theoretical discussions. The fact that state court judges are subject to popular vote earns them a substantial degree of democratic legitimacy because they are closer to people than appointed federal counterparts. They more frequently adjudicate common issues affecting peoples’ everyday lives, and they far outnumber U.S. Supreme Court Justices. These predominantly elected judges also interact with the public when they periodically step into the political arena to engage in campaign activities (i.e., election, re-election, or retention).
The pervasive nature of the state judicial role and judge elections acquaint the populace with who these judges are and what they do in ways that are unimaginable for the few and remote Supreme Court appointees. As a result, the thesis questions theorists’ proclivity to analyze the counter-majoritarian issue by considering only the Supreme Court’s potential impact on the public sentiment. The Supreme Court lens, it will be argued, is too narrow and unrepresentative of the many and complex state court decisions that result in social control and regularly impact the public mind. This thesis remedies the omission of state court decisions from the analysis.
As a part of this investigation, the thesis reviews the nineteenth century transformation of the state judicial office from a legislatively-appointed position to one that became subject to popular vote. During the post-Jacksonian era of democratization, state constitution makers committed to remake state governments by rescuing their political institutions from the claws of the ill-fated experiment of legislatively dominant state governments. Recurrent economic depression, poverty, and instances of government corruption early in the century, led voters to demand fundamental reform. Leading into the 1850s, reformers accepted the important truth that the dominant-legislative model lacked needed checks and balances against public abuse. They slowly recognized that a balanced tripartite system was essential for effective governance.
Judiciaries needed to be strengthened if judges were going to assist in securing roughly balanced state government. Abandoning appointments and embracing judicial review and elections led to needed separation and independence of judiciaries from adjoining branches. These reforms also empowered judges to oversee and maintain adjoining branches within newly defined constitutional spending and lawmaking limits. This also bolstered the ability of judges to protect individual rights against government intrusion. Newly empowered judiciaries thus promoted governmental equilibrium against legislatures and executives whose powers were also more clearly defined. Understanding these reforms holds a key to recognizing the taming of formerly dominant legislatures. Considering this combination of changes also reveals how apparently divergent elements (i.e., elections and review power) may be reasonably credited with saving state governments from ruinous corruption and promoting democratic legitimacy. The proposed state-centric analytic model requires theorists to reconsider prior approaches to democratic political theory, including the federal Supreme Court view. The refocus on state court decision making and elections permits more precise consideration of crucial questions. For example, it is important to see, and document, the extent to which American courts exercise consequential judicial review, and to appreciate whether the public actually sees such exercises as problematic, as the Supreme Court view asserts. This approach also helps to illuminate how judges’ participation in campaigns affects public views of legitimacy. The proposed approach offers a richer evidence-base (i.e., state court exercises of the power) on which to base assertions about whether judicial review (and elections)—rather than being a deviant force—actually harmonizes democracy with the American system for the fair administration of justice.
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Fiddes, James. "Implementing post-Cold War Anglo-American military intervention : scrutinising the dynamics of legality and legitimacy." Thesis, University of Aberdeen, 2017. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=231671.
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Since the end of the Cold War, much has been written on the various overseas military adventures of Western powers, with significant focus being placed on the legality and legitimacy of these interventions. Despite the volume of work produced on the topic, this thesis argues that much of it has been framed incorrectly, allowing for a conflation of the concepts of legality and legitimacy to distract from the true source of international legitimacy and the true role of international law. Over this period of time, through a combination of selective application and lack of genuine understanding of its role, statutory international law has steadily lost traction and credibility. Through an analysis of a range of case studies from the post-Cold War era, this thesis argues that international legitimacy emanates not from the international legal order (as represented and overseen by the UN) but from consensus amongst kin countries. There are various potential avenues available to achieve consensus, but which is chosen depends on the circumstances of each individual case. National interest underpins state decision-making and, if significant enough, can, on its own, provide a route to consensus. Additionally, a shared national security concern - the pre-eminent catalyst for consensus during the Cold War - remains a powerful option. Furthermore, in the post-Cold War world, a new, norms-based justification, often classified as “humanitarian intervention” has also developed. Demonstrating compliance with international law can, depending on circumstances, be potentially available to strengthen the case for consensus but is not necessarily always an appropriate or productive choice and plays a secondary role to other, more powerful considerations. By focusing on key case studies it is possible to identify trends in approach to the use of international law and identify the nature of the role it plays in international power politics. Through close analysis of a wide variety of primary and secondary sources, it is possible to identify key drivers for decision-makers and detect the impact of past experience on the use of international law in the quest for legitimacy ahead of launching military action. The trends in approach and in relations between close Western allies (in particular the UK and US) have been identified from the Gulf War in 1990 through to the ongoing crisis engulfing Syria, and potentially hold valuable lessons for future strategic decision-making.
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Pues, Anni Henriette. "A critical legal analysis of prosecutorial discretion at the International Criminal Court : towards more transparency, accountability, and legitimacy." Thesis, University of Glasgow, 2017. http://theses.gla.ac.uk/8431/.
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The Prosecutor is the gatekeeper at the ICC. Her discretionary decisions determine in which situations the Court will commence an investigation and who will be brought before the Court. The Prosecutor’s focus on Africa has led to severe criticism of alleged anti-African bias and an erosion of the Court's legitimacy. Against this background, this thesis examines the exercise of prosecutorial discretion at the ICC. It identifies the scope for procedural discretionary decisions at the key junctures of the proceedings, covering areas such as how to conduct a preliminary examination, when to commence an investigation, who to prosecute and which charges to bring. The analysis is based on the theoretical understanding that the legality of decisions is crucial, which is why the thesis analyses the legal limitations of the exercise of discretion to clearly determine its boundaries. However, legality alone is not sufficient to serve the aim of safeguarding and enhancing the legitimacy of the Court. It is argued that the Prosecutor is not entirely free, but bound by the main principles and aims represented in the Rome Statute. She must ensure that her decisions demonstrate impartiality, maximize the deterrence effect of the ICC, and respond to victims' interests. To achieve a positive effect on the legitimacy of the Court, it is also required that the Prosecutor deliberates on individual decisions and makes these decisions more transparent. This will provide routes to pragmatic mechanisms of accountability, beyond the limited possibilities in the Rome Statute to hold the Prosecutor formally to account. In this regard, the thesis also analyses the role of the gravity notion, a concept that gained increased prominence in the evolving practice of the Prosecutor, and of the interests of justice, a notion that has not once been used yet. Both are indeterminate concepts that equip the Prosecutor with the necessary flexibility to respond to a variety of very different scenarios that might occur within the jurisdiction of the Court. The thesis demonstrates that the acts of applying these concepts contain a type of interpretative discretion. For the gravity notion, however, the scope is very limited, does not allow any managerial considerations, and must strictly be geared towards consistency. While the interests of justice currently appear redundant, this thesis demonstrates how this concept can gain new importance for the completion of situations, one of the challenges ahead for the Court. Overall, this thesis aims to identify avenues by which the Prosecutor can contribute to turning the Court into a more responsive institution, striking a balance between the preservation of its independence and open interaction with its stakeholders.
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Saberi, Hengameh. "Legality and legitimacy of the use of force to ensure respect for international humanitarian law." Thesis, McGill University, 2001. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=29572.
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The concept of compliance in international law remains amongst the most significant and, at the same time, the most perplexing of questions. The significance of compliance is highlighted in certain spheres of international law that deal with specific extraordinary circumstances. This is particularly true with respect to international humanitarian law, which is applicable during periods of armed conflict. The importance of ensuring and improving compliance with international humanitarian law is clearly expressed in the opening Article of the four Geneva Conventions of 1949 and their Additional Protocol I of 1977, in which the High Contracting Parties undertake to both "respect" and "ensure respect" for these instruments. This thesis is derived from a conviction that compliance with international humanitarian norms is more efficiently ensured through implementation, rather than enforcement mechanisms. However, it only ventures a critique of the appropriateness of military intervention as one of the mechanisms most frequently used to enforce humanitarian rules in the past decade of armed conflicts. The hypothesis this thesis postulates is that the recourse to armed force to ensure respect for international humanitarian law is at cross-purposes with the body of these rules. This statement is assessed against the Security Council's military humanitarian intervention in civil conflicts. It is suggested that the validity of the Council's decisions on humanitarian intervention hinges upon two equally determinative criteria: legality and legitimacy. The hypothesis of the thesis questions both the legality and legitimacy of the Security Council's authorized military humanitarian intervention in armed conflicts. The underlying purpose of the thesis is thus to expand the parameters of theoretical discussions about compliance in the context of international humanitarian law from a jurisprudential perspective.
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Masepow, Michael. "Sovereignty, representation and law in contemporary European integration : the legitimacy of a late modern polity." Thesis, University of Cambridge, 2005. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.614950.
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Whitaker, Robert A. "Freedom of a speech| The speeches of the Warren Court Justices and the legitimacy of the Supreme Court." Thesis, State University of New York at Albany, 2017. http://pqdtopen.proquest.com/#viewpdf?dispub=10246592.
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While justices of the U.S. Supreme Court routinely claim they do not deliver speeches to audiences outside the Court, or that the content of their remarks is unimportant, scholars have long recognized that the justices speak frequently off the bench. Despite this recognition, studies of judicial speech view it largely as a potential transgression of legal norms, risking the images of neutrality and independence that are widely seen as the primary bases of the Court’s legitimacy; few studies have explored judicial speech in any detail, and surprisingly little is known about the actual content of the justices’ speeches. In this dissertation, I pose two primary questions: first, what do the justices say, and second, what does the content of judicial speech tell us about institutional legitimacy? Reviewing approximately 400 speeches by the justices of the Warren Court (1953–1969), I find the justices’ speeches generally appear as any one of four primary themes: advocating future policy and signaling outside actors to prepare for implementation, in advance of a major ruling by the Court; defending the Court’s rulings on the basis of projecting favorable images of democracy abroad; defending the Court’s rulings on the basis of constitutional claims and understandings and defending against broader attacks on judicial authority, such as court-curbing legislation; and last, articulating idealized visions of democracy and future politics. Further, I find evidence of these themes in the speeches of the justices of the Roberts Court in 2012. Contrary to the judicial “lockjaw” conception of speech as a threat to neutrality and legitimacy, I find judicial speech, while shaped by legal norms, frequently draws upon values and structures associated with democracy, enabling the justices to rework and construct political narratives about the Court and its rulings in speeches that attend to the Court’s institutional legitimacy.
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Naidoo, Sherilyn Shale. "Does the lack of sufficient formulation and articulation of principles guiding the limits of the Constitutional Court undermine its legitimacy?" Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/12971.
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Includes bibliographical references.It is not simply enough to have a separation of powers written on paper. In this paper I shall look at the pragmatic approach adopted by the Constitutional Court when adjudicating upon executive and legislative power in order to ensure its institutional security and legitimacy. I shall evaluate throughout this paper how the lack of sufficiently and consistently formulating and articulating principles that guide the Constitutional Court’s own limits could actually undermine the Court’s legitimacy in our current political climate.
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Petersen, Shawwaal. "Does a dominant party democracy erode constitutional legitimacy? An analysis of the African national congress and the South African constitution." Master's thesis, Faculty of Law, 2020. http://hdl.handle.net/11427/32325.
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It has been twenty-five years that the ANC has enjoyed political hegemony and an investigation is required into whether the legitimacy of constitutional supremacy remains intact as a state functioning under a dominant political party. There are certain pathologies which develop in a dominant political party state, pathologies which lead to autocratic rule and which has the potential to undermine the constitutional institutions such as that created by the South African Constitution. The first aspect considered is the weakened oversight role of Parliament over the executive because of the democratic centralism policies practiced by the ANC. Democratic centralism entails strict party discipline which means Parliament cannot fully exercise its role in holding the executive accountable as envisaged in the Constitution. Provisions of the Electoral Act and the Anti-defection clause in the Constitution further allows a concentration of power in the top hierarchy of the dominant political party, thus ensuring that political leaders have all the might to ensure that self-preservation is the order of the day. Parliament which is meant to represent the electorate can be considered as a mere formal or hypothetical construction as the decisions of the dominant political party affects parliamentary processes. The second constitutional implication is that courts become overburdened to make decisions on matters which are better suited to another branch of government. Whilst constitutional review is a function of a thriving and working democracy, the argument presented here is that the judiciary has come to make decisions of a highly political nature. The reason for this is first the failure of Parliament to correctly exercise its oversight role and secondly the abuse of power by high ranking politicians in the dominant political party. The unintended consequence of a dominant political party state is the expansion of the role of the courts as the courts perform the ultimate watchdog role due to the loss of accountability in a dominant party regime. Thus, trespassing onto the terrain of other branches of government and in doing so undermining the independence of the judiciary itself. The last aspect which impedes constitutional legitimacy is the large-scale ‘capture' of state institutions. This phenomenon is linked to the ANC practice of cadre deployment which is a means to safeguard policies and to ensure that promises to the electorate are carried out by party loyalists. This practice in a dominant-party political landscape has created a loophole whereby democratic values and constitutional safeguards are often compromised. Pliable cadres are deployed to key positions and reporting lines are blurred which in turn has facilitated certain corrupt tendencies, leading to the demise of accountability, transparency and the efficiency of government and state-owned enterprises. Through analyzing case law and party policies and considering the pathologies associated with dominant party rule which has developed under the ANC's governance, it is aimed to determine whether a dominant political party erodes constitutional legitimacy in South Africa.
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Salinas, Cerda Ania Carola del Carmen. "Guarding the gates : the essential role of a robust Pre-Trial Chamber in ensuring the International Criminal Court's impartiality, independence and legitimacy." Thesis, University of Glasgow, 2015. http://theses.gla.ac.uk/6420/.
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The Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) was conceived of as the Court’s gatekeeper and empowered in the Rome Statute to provide an essential counterbalance to the significant discretionary powers granted to the Prosecutor. This thesis analyses in detail the PTC’s powers at the different stages of the Court’s proceedings in which it is called to intervene – ie pre-investigation, investigation and pre-trial stages – and argues that, in general terms and save some limitations, the PTC has the necessary tools to carry out its function. In particular, the PTC has been empowered to prevent possible abuses of power and shield the Prosecutor from external pressures through the judicial review of his most critical discretionary decisions. By way of that judicial control, the PTC is meant to examine the rationale behind the Prosecutor’s decisions in order to guarantee that the exercise of discretion is not abusive or the result of improper political pressures. This is necessary to safeguard the legitimacy of the institution as a whole and to protect the rights of those that can be affected by the Court’s investigations and prosecutions. However, a systematic evaluation of the way in which these powers have been applied reveals that the PTC’s judges have adopted a rather cautious approach to their role, showing some reluctance to firmly scrutinise the Prosecutor’s exercise of discretion. As a result of the Court’s inherent limitations and the political climate in which it operates, there is a concrete risk that external actors may try to politicise the role of the Court, exerting political pressures on the Prosecutor. The adoption of a more proactive and firm role by the PTC will not only encourage a more transparent decision-making process by the Prosecutor, but will also urge cooperation and genuine investigations and prosecutions at the national level, therefore minimising the risk of the Court’s political instrumentalisation. Accordingly, this thesis argues that, for as long as the PTC boldly embraces its full powers, the ICC will function smoothly and strengthen its reputation as a fair and impartial means by which to obtain international criminal justice.
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Nordenstam, Marcus. "The Moral Conundrum and Political Game of Humanitarian Intervention : A study into the issue of legality and legitimacy in international law." Thesis, Örebro universitet, Institutionen för juridik, psykologi och socialt arbete, 2014. http://urn.kb.se/resolve?urn=urn:nbn:se:oru:diva-46607.
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Tennyson, Kristin M. "Establishing legitimacy and democratic rule of law in Latin America their impact on victimization in 12 countries /." [Gainesville, Fla.] : University of Florida, 2009. http://purl.fcla.edu/fcla/etd/UFE0024927.
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Falsafi, Alireza. "Common good and the concept of expropriation in international law on foreign investment: Determinacy of substance in legitimacy of structure." Thesis, McGill University, 2011. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=103465.
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This thesis, exploring the rule of law for international rules, offers a human bond of common good between determinacy of substance and legitimacy of structure of rules in order to evaluate international obligations of States in international law on foreign investment. In an in-depth exposition of the theoretical underpinnings and practices underlying the normative structure of rules in international law, the thesis critically questions the legal reasoning embedded in—and the authority of rules borrowed from—principles and precedents or moral and political evaluations by arbitrators in interpretation of States' contractual, customary, and treaty obligations in investment arbitrations. With crucial moral, political, social and economic ramifications for the constitutional functions of States and concomitant interests of their human members implicated in the concept of expropriation in international law, the thesis provides a framework of legitimacy in a common good approach with structural criteria of recognition and coherence for the interpretation of States' obligations in investment arbitration. Coherence brings to the fore conflicting demands of justice requiring fresh evaluation divesting a general rule of its authoritative force, and recognition brings to the fore the validation of the power to engage in moral and political evaluation. Together, these structural criteria offer a common good approach of legitimacy to test the authority of States' obligations and the power of arbitrators in hard cases. By virtue of these criteria, the thesis characterizes the nature of substantive property rights of corporations and corresponding obligations of States in foreign investment as contingent and consensual in contrast with the absolute and constitutional rights of human beings in human rights. Through coherence and recognition, the thesis also portrays a supreme status for customary international law for the normative structure and substance of States' contractual or treaty obligations in the interpretation of hard cases in international law on foreign investment. The thesis espouses a new horizon for legal reasoning in foreign investment arbitration that eschews the lex lata veneer for lex ferenda propositions manufactured from precedents and principles, on the one hand, and the sheen of law for the conception of justice of investor-State arbitrators, on the other, in cases of hard confrontation between the demands of justice.Cette thèse, en explorant l'état de droit pour les règles internationales, présente un lien de la déterminabilité de la substance et la légitimité de la structure des règles en vue de bien commun des êtres humains afin d'évaluer les obligations internationales des États en droit international concernant les investissements étrangers. Dans un exposé profond des fondements théoriques et des pratiques qui sous-tendent la structure normative des règles internationales, cette thèse conteste le raisonnement juridique et l'autorité des règles qui sont fondés sur principes et les precedents, ou des évaluations morales et politiques par les arbitres, dans l'interprétation des obligations contractuelles, conventionnelles, et coutumières des États en arbitrages d'investissement. Étant donné les ramifications morales, politiques, sociales et économiques pour les fonctions constitutionnelles des Etats et leurs peuples impliquées dans la notion d'expropriation en droit international, cette thèse fournit un cadre de légitimité dans une approche de bien commun avec les critères structurels de la reconnaissance et la cohérence pour l'interprétation des obligations des États en arbitrages entre les États et d'investissement les investisseur étrangers. La cohérence concerne des exigences de la justice pour une évaluation nouvelle d'une règle générale, et la reconnaissance concerne la validation de le pouvoir pour exercer une évaluation morale et politique. Ces critères structurels offrent une approche de la légitimité en vue de bien commun pour tester l'autorité des obligations des États et le pouvoir des arbitres dans les cas difficiles. Avec ces critères la thèse caractérise la nature des droits de propriété des entreprises et des obligations correspondantes des Etats dans le domaine d'investissement étranger comme contingente et consensuelle distingué de droits absolus et constitutionnel des êtres humains dans le domaine de droits de l'homme. Grâce à la cohérence et la reconnaissance, la thèse décrit aussi un statut suprême du droit international coutumier pour la structure et substance normative des obligations des États dans l'interprétation des cas difficiles dans le droit international concernant les investissements étrangers. La thèse adopte un nouvel horizon qui rejette la prétention de lex lata pour les propositions de lex ferenda fabriqués par des précédents et des principles, d'un côté, et la prétention de loi pour la conception de la justice des arbitres en arbitrages d'investissement, de l'autre côté, dans l'interprétation des cas difficiles de la confrontation entre les exigences de la justice.
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Kochel, Tammy Rinehart. "Legitimacy as a mechanism for police to promote collective efficacy and reduce crime and disorder." Fairfax, VA : George Mason University, 2009. http://hdl.handle.net/1920/4525.
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Thesis (Ph.D.)--George Mason University, 2009.Vita: p. 219. Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Justice, Law and Crime Policy. Title from PDF t.p. (viewed June 10, 2009). Thesis director: Stephen D. Mastrofski. Includes bibliographical references (p. 208-218). Also issued in print.
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Pyatt, Molly Elizabeth. "IS A POLICE OFFICER’S SENSE OF SELF-LEGITIMACY PREDICTIVE OF JOB SATISFACTION?" OpenSIUC, 2018. https://opensiuc.lib.siu.edu/theses/2370.
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The primary purpose of this thesis was to determine whether self-legitimacy impacted police officer satisfaction. Using data collected through an online self-reported survey, perceptions of satisfaction among 266 St. Louis County police officers were analyzed, controlling for other factors previously determined to be important to satisfaction such as race, gender, educational achievement, stress, relationships with supervisors, and years of experience. Results showed that self-legitimacy did not significantly affect officer satisfaction; however, relationships with supervisors and stress were significant in determining officer satisfaction. A possible explanation is offered that takes into account the nature of law enforcement around the time of survey collection (i.e., in the aftermath of the Michael Brown shooting).
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Hernando, Nieto Eduardo. "From state legality to constitutional globalism or the problem of the legitimacy of justice." Derecho & Sociedad, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/118924.
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This text aims to alert about the risks that a justice system can generate without there being a State that shelters it. The law has always been linked to the political as argued last century by the German professor Carl Schmitt therefore there could be no right and justice without the political. The present development of constitutional justice at the global level speaks more in favor of the existence of a Justice without State because the existence of a Universal State is not viable. Now, this universal justice would not only be the product of the advance of the technique but would also be the result of the liberal ideology that has always been in a clear tension with the right understood as limit or as a computer principle, as a nomos, is Say, as a legitimate authority. When the State loses its authority - through the neutralization of the technique - the right lso loses its authority and its function is left to the economic, moral and cultural forces that are totally depoliticized andconsequently the order and peace is broken.Este texto pretende alertar sobre los riesgos que puede generar un sistema de justicia sin que exista un Estado que lo cobija. El derecho siempre ha estado ligado a lo político como sostuvo el siglo pasado el profesor alemán Carl Schmitt, por lo tanto no podría haber derecho y justicia sin lo político. El presente desarrollo de la justicia constitucional a nivel global habla más bien a favor de la existencia de una Justicia sin Estado al no ser viable la existencia de un Estado Universal. Ahora bien, esta justicia universal no solo sería el producto del avance de la técnica sino también sería el resultado de la ideología liberal que ha estado siempre en una clara tensión con el derecho entendido como límite o como un principio ordenador, como un nomos, es decir, como una autoridad legítima. Cuando el Estado pierde su autoridad - vía la neutralización de la técnica - el derecho pierde también autoridad y su función queda a manos de las fuerzas económicas, morales, culturales que están totalmente despolitizadas y por consiguiente se quebranta el orden y la paz.
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Summers, James. "The idea of the people the right of self-determination, nationalism and the legitimacy of international law /." [S.l. : s.n.], 2004. http://ethesis.helsinki.fi/julkaisut/oik/julki/vk/summers/.
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Šopaitė, Inga. "Teisės mirti (eutanazijos) legitimumo problema." Master's thesis, Lithuanian Academic Libraries Network (LABT), 2010. http://vddb.laba.lt/obj/LT-eLABa-0001:E.02~2009~D_20100225_140052-85301.
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Tokiuose katalikiškuose kraštuose kaip Lietuva, eutanazijos problema ypatingai opi. Liberaliajame pasaulyje dažnai ginčijamasi dėl įvairių mirties formų: abortų, mirties bausmės, eutanazijos. Be abejo, juk tai – ne finansai ar politika, tai – žmogaus gyvybė. Bet jeigu žmogaus gyvybė nuvysta ir lieka tik silpnai funkcionuojanti širdis, smegenys? Todėl svarbu išsiaiškinti ne tik visuomenės požiūrį, argumentus, bet ir eutanazijos legitimumą – ar teisė ir visuomenė galėtų pripažinti eutanaziją. Čia ir kyla temos problematiškumas.
Darbo objektas – eutanazijos legitimumo problema. Darbo tikslas – įvertinti visuomenės nuomonę apie eutanaziją ir nustatyti pagrindines eutanazijos legitimumo problemas. Uždaviniai: 1. Apžvelgti ir įvertinti Lietuvos ir kitų pasaulio šalių visuomenės požiūrį į eutanaziją, gyvybę, teisinį reglamentavimą; 2. Išanalizuoti skirtingų visuomenės grupių požiūrį, argumentus eutanazijos legitimumo aspektu; 3. Apibrėžti eutanazijos legitimumo problemas.
Pasaulyje ne tik krikščioniškoji kultūra, bet ir kitos kultūros pripažįsta žmogaus gyvybės išskirtinę vertę. Atsižvelgiant į tai žmogaus gyvybė tarptautiniuose dokumentuose, Europos Sąjungos teisiniuose dokumentuose ir Lietuvos Respublikos Konstitucijoje laikoma svarbiausiu teisiniu gėriu.
Nežiūrint į žmogaus gyvybės pripažinimo išskirtiniu teisiniu gėriu, eutanazijos legitimumo klausimu bent jau Europoje vieningos nuomonės nėra. Tai susiję su tuo, kad kiekvienas žmogus laikomas privačiu asmeniu su savo... [toliau žr. visą tekstą]Therefore, in such catholic countries as Lithuania, the euthanasia problem is rather relevant. The liberal world often argues about different forms of death: abortion, capital punishment and euthanasia. Definitely, that’s not just finance or policy; it’s a human’s life. However the case when the human’s life collapses and just the heart and brain are functioning is possible. It is very important to find out both what the society’s approach and arguments towards euthanasia are and euthanasia legitimacy. Therefore, it is the key issue of this paper. The object of this paper is the euthanasia legitimacy problem. The aims are evaluation of society’s approach towards euthanasia and identification of the key euthanasia legitimacy problems. The goals are following: 1. to review and evaluate Lithuanian and global approach towards euthanasia and life, legal regulation; 2. to analyze approaches of different society groups, arguments for and against euthanasia legitimacy; 3. to identify euthanasia legitimacy problems. The Christian culture as well as other cultures acknowledges the exclusive right to the human life. Considering that, the human life is the main value in the international documents, legal European Union documents as well as in the Constitution of the Republic of Lithuania. In addition to that fact, there is no united opinion about euthanasia legitimacy question in the whole Europe. Facts relative to idea that each human is private person with own moral and religious... [to full text]
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Lin, Ling, and 林灵. "The effectiveness and legitimacy of investment incentive regime in China: dilemmas of state intervention." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2012. http://hub.hku.hk/bib/B50533757.
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While investment incentives are increasingly employed by the developing economies, the vast amount of literature has failed to reach a consensus on the role of incentive regimes. A fundamental problem with the previous econometric studies is that they assume a mature market condition, under which the government should remain outside FDI competition. However, in reality, most developing countries lack a mature market and market-oriented regulatory institutions. This thesis adds to the conventional wisdom by examining whether and how Chinese investment incentive regimes have been successful in harnessing FDI during the last three decades. Like many developing economies, China is still in the process of building a market economy. The striking ability of China to attract FDI with numerous incentives presents a meaningful laboratory for examining the role of investment incentives.
In contrast to most previous economic studies, this thesis does not attempt to examine the economic mechanisms of investment incentives. The basic presumption of this thesis is that incentive measures are instrument of state intervention with designed policy goals. A policy-oriented approach has thus been adopted, under which the role of investment incentives is examined against precisely defined policy objectives in a particular policy context. In China’s case, the efficacy of investment incentives is shown by a strategic and dynamic correlation between the investment incentive regime and its achieved development goals. In the given policy context, their functions cannot be replaced by more desirable instruments due to the political and economic constraints.
Besides the economic evaluation, the study adds the legal dimension of evaluation on investment incentives. From a legal perspective, the regulatory space for developing countries is increasingly defined by the international legal regime. Investment incentives should be framed in a way to balance national interests and the level of protection required for foreign investment. The evolution of China’s incentive regime presents a good example to integrate global consensus with domestic imperatives. By unifying its income tax system, China adopted an incentive regime generally consistent with its WTO commitments and could be utilized to its advantages.
However, serious problems inherent in the incentive system have already emerged in China, which may hamper its economic development in the long run. The thesis shows that the state’s capacity to channel FDI towards development goals is declining, as its intrusiveness has given way to arbitrariness. A top-down approach deprives foreign investors of their channels to communicate their opinions to the policymakers. The local arbitrariness and corruption in incentive implementation will compound the problem and hinder the inflows of high quality foreign investment.
The thesis then proposes that the investment incentive regime in China needs to be upgraded into a more legalized system with non-discrimination, transparency, coherence and an effective monitoring mechanism as its central features. The legalization process would help to alleviate the negative effects of investment incentives. In the absence of a political infrastructure compatible with a rules-based system, the Chinese government needs to start with redefining the government-business relationship with a legal framework and reinforcing an independent judicial system.published_or_final_version
Law
Doctoral
Doctor of Philosophy
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Glennon, Colin, and Logan Strother. "The Maintenance of Institutional Legitimacy in Supreme Court Justices’ Public Rhetoric." Digital Commons @ East Tennessee State University, 2019. https://doi.org/10.1086/703065.
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Judicial politics scholars routinely posit that the behavior of Supreme Court justices is motivated in important part by concerns of institutional maintenance, that is, by a desire to maintain the Court’s unusually large store of institutional legitimacy. Previous work on this topic, however, has focused almost exclusively on the influence of such motivation on judicial decision making. We contend that if institutional maintenance is an important goal, it should be observable in other contexts as well. We examine televised mass-media interviews with Supreme Court justices from 1998 to 2016 and find that legitimacy reinforcement is the predominant goal reflected in justices’ rhetoric in those interviews.
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Okafor, Obiora Chinedu. "Re-defining legitimacy : international law, multilateral institutions and the problem of socio-cultural fragmentation within established African states." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1998. http://www.collectionscanada.ca/obj/s4/f2/dsk2/tape15/PQDD_0010/NQ34602.pdf.
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