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Dissertations / Theses on the topic 'Theories of Law, Philosophy of Law, Legal History'
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Ibrahim, Bilal. "The evolution of the rule of law : the origins and function of legal theory." Thesis, McGill University, 2005. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=98935.
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The thesis examines the origins and function of legal theory ( usul al-fiqh) within the context of the development of early Islamic law. I argue against the depiction of the development of law as a series of compromises between traditionalism and rationalism. Rather, by evading the demands of traditionalism, law evolved into a complex doctrinal entity rooted in the social structures of third-century Abbasid society. This revision of the development of law provides a context to evaluate early works of legal theory. Moreover, in context of my analysis of the development of law, I attempt to explain the emergence of legal theory as an independent discipline and its function within the greater structure of law.
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Porwancher, Andrew. "American legal thought and the law of evidence, 1904-1940." Thesis, University of Cambridge, 2011. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.609802.
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Ibsen, Alexander Zlatanos. "Inventing Law: The Creation of Legal Philosophies in the American and European Patent Systems." Diss., The University of Arizona, 2012. http://hdl.handle.net/10150/222841.
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Although the patent systems of the United States and Europe have become continuously more similar their underlying legal philosophy continues to be different. This study examines how the two patent philosophies emerged out of different social situations and why and how patent systems can develop similar formal arrangements without experiencing a similar harmonization of underlying philosophy. As patent laws are historically unique to western culture it provides a lens through which to observe its relative social appreciation of industry, technology, commerce, and the role of the law. This study argues that the two separate 'patent philosophies' emerged as results of unique historical situations and that the reason as to why they have been able to maintain their distinct natures is that a similar ideological pressure has not been present since. The patent law of the United States, which is based on an 'inventor philosophy', was the product of the ideological currents of the movement toward American independence. This philosophy is friendly to inventors and entrust them with all responsibility over their inventions. Its individualistic and democratic character resonated well with the country's anti-colonial and anti-monarchical political campaign. A similar ideological pressure to revise fundamental opinions on technology and law has not emerged since. Virtually all European nations are today part of the European Patent Organization which administers the world's only true regional patent office. This European system is based on an 'invention philosophy' which was designed in the late 19th century by German industrialists. This philosophy is anti-monopoly and sees the State as a guardian of the public benefits which arise from technological novelties. Due to German industrial efficiency, it was used to model European patent law. Although both philosophies have proved viable, the case of patent law suggests that the role of legal philosophy must be reduced. Apart from being crucial in the creation of a new legal system, this study argues for the need to drastically reconsider the relationship between substantive and formal law. Both patent philosophies have consistently lost importance over time to the point where they today support two formally very similar systems.
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Kennedy, Chloe Jane Sophia. "Criminal law and the Scottish moral tradition." Thesis, University of Edinburgh, 2014. http://hdl.handle.net/1842/17935.
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This thesis presents an account of the development of Scots criminal law which concentrates on the influence of the Scottish moral tradition, as epitomised by Calvinist theological doctrine and Scottish Enlightenment moral philosophy. It argues that there are several crucial but seldom-acknowledged points of similarity between the Calvinist aim of creating a holy community and key tenets of eighteenth century Scottish moral thought, which rest upon community-oriented conceptions of the nature of morality and society. Both these shared conceptions and the particular ways they are expressed in Calvinist creed and Enlightenment philosophy are shown to have had a bearing on the way that Scots criminal law changed over time. The areas in which this influence is demonstrated are: the scope and principles of the law, i.e. the type of conduct that was punishable and the arguments that were put forward to justify its prohibition; the attribution of criminal responsibility (and non-responsibility); and the importance of mental state. It is argued that in each of these discrete areas changing perspectives on the nature of morality and human agency had a palpable impact on both legal doctrine and practice. When these different areas of the law are viewed as a whole and in historical perspective, the formative force of the Scottish moral tradition becomes clear and its influence can be seen to have extended into the contemporary law. The thesis therefore provides an original interpretation of the history of Scots criminal law by considering its sources and institutions from hitherto unexplored theological and moral perspectives, whilst simultaneously enhancing scholarly appreciation of certain aspects of the contemporary law that appear unusually moralistic. It also makes a broader contribution to socio-historic scholarship and strengthens its position as a recognised and worthwhile discipline by illustrating, using a concrete legal system, how legal history can enhance debates within criminal law theory and vice versa.
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Mallory, Jeri. "Comparisons of the Soul: A Foucauldian Analysis of Reasonable Doubt." Scholarship @ Claremont, 2019. https://scholarship.claremont.edu/scripps_theses/1409.
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The purpose of this paper is to uncover a new level of thinking regarding the discourse and debate around the standard of reasonable doubt and how it is used in our court rooms. The current argument surrounding the reasonable doubt standard has become circular and reached an impasse. By introducing the lens of social control and using the writings of notable French philosopher Michel Foucault, this paper looks at the origins and development of the reasonable doubt standard and links it with the increasing methods of social control present in punishment as well as evaluating the cultural narrative around its origin and assessing why this standard was permitted to continue to be a cornerstone of the Anglo-American judicial system.
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Spagnolo, Benjamin James. "Kelsen and Raz on the continuity of legal systems : applying the accounts in an Australian context." Thesis, University of Oxford, 2013. http://ora.ox.ac.uk/objects/uuid:a9025e33-e70e-49e9-994f-52f8daa311fd.
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This thesis has three objectives. Its primary objective is to examine, and critically evaluate, the theoretical accounts offered by Hans Kelsen and Joseph Raz to explain the temporal continuity and discontinuity of legal systems. In particular, it evaluates the explanatory power of those accounts by combining an abstract analysis of the accounts in principle and an evaluation based on systematically applying them to one concrete, historically circumstanced instance: the legal systems of British derivation in Australia between 1788 and 2001. The thesis thus tests each account’s factual fit: how adequately it corresponds to, accords with, and persuasively makes sense of, the facts – including complex social facts, attitudes and normative standards – for which it purports to offer an account. Second, the thesis aims to demonstrate, more generally, the utility of applying theoretical accounts to a particular historical instance to complement abstract analysis. Third, the thesis aims to advance the understanding of the evolution of Australian legal systems between 1788 and 2001. These three objectives are achieved through the critical exposition and reconstruction of the accounts, their development and enrichment where refinement is appropriate, their application to the specific context of Australia and their evaluation, individually and in comparison.
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Al-Azem, Talal. "Precedent, commentary, and legal rules in the Madhhab-Law tradition : Ibn Quṭlūbughā's (d. 879/1474) al-Taṣḥīḥ wa-al-tarjīḥ." Thesis, University of Oxford, 2011. http://ora.ox.ac.uk/objects/uuid:79f46ee8-df8c-42e3-8757-298d4029b090.
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This thesis examines the role that scholarly digests and commentaries played in the formation of legal rules in the Muslim legal institution known as the madhhab. I posit that a shared approach to legal rule-determination, and the respect of juristic precedent that it entails, underlies the jurisprudential processes of all of the four post-classical Sunni madhhabs (the Ḥanafī, Mālikī, Shāfi'ī, and Ḥanbalī), and unites them in a wider ‘madhhab-law tradition’. Taking the Ḥanafī madhhab as a case study, the thesis analyses a commentary written by the late Mamluk jurist Ibn Quṭlūbughā (d. 879/1474) upon the digest of the celebrated Abbasid-era Abū al-Ḥusayn al-Qudūrī (d. 428/1037). In discussing the madhhab's heritage of precedent, Ibn Quṭlūbughā's commentary weaves an intricate tapestry of quotations and references from previous jurists and works, providing us with insight into how author-scholars reacted to, and interacted with, other jurists over space and time. Chapter 1 provides a short introduction to the lives of Qudūrī and Ibn Quṭlūbughā, and the contexts within which they produced their works. Chapter 2 employs both quantitative and qualitative analysis of the commentary, in order to deduce historical and geographical patterns out of which a periodisation of rule-determination in the Ḥanafī madhhab is proposed. In Chapter 3, Ibn Quṭlūbughā's jurisprudential theory of rule-determination is studied, examining both the justifications and the processes employed by jurists in arriving at a legal rule in the Ḥanafī madhhab. Chapter 4 then turns to the craft of commentary itself, analysing over eighty case examples for the logical relationships, rhetorical devices, and legal arguments that inform the actual practice of rule-determination through commentary. A final chapter then summarises the conclusions, and situates them within a broader discussion as to the nature of the madhhab-law tradition.
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Cherry, Keith. "Rights and Wrong(s): Theorizing Judicial Decisions as Normative Choices." Thèse, Université d'Ottawa / University of Ottawa, 2012. http://hdl.handle.net/10393/23370.
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This thesis contends certain contentious court cases can be traced beyond their legal roots to deep, sometimes incommensurable philosophical disagreements. However, the unitary nature of the judicial system effectively forces the court to take sides, putting its institutional weight and moral authority behind one set of principles and not another. Following Cover, I contend that this encourages future litigants to rephrase their claims in the court’s preferred normative language, thus influencing our normative environment. The theories which guide judicial decisions, however, are generally insufficiently attentive to the court’s normative influence. In response, I attempt adapting Dworkin’s Law as Integrity around Cover’s more sociological view. Chapter 1 examines Cover’s view, Chapter 2 explores Syndicat Northcrest v. Amselem and Delmaagukw v. B.C. as case studies, and Chapter 3 adapts Dworkin around Covers view. My conclusions argue that further inspiration can be drawn from EU Coordinate Constitutionalism and Sui Generis aboriginal rights.
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Mäkinen, Ilkka. "On suicide in European countries : some theoretical, legal and historical views on suicide mortality and its concomitants." Doctoral thesis, Stockholms universitet, Sociologiska institutionen, 1997. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-48376.
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The theme of this thesis is suicide mortality in its various aspects, seen from an international, European perspective. It questions the existence of social (structural) concomitants to suicide mortality and investigates attitudes towards and legislation concerning suicide, as well as some historical processes pertaining to their development. Paper 1 replicates an authoritative study of the "correlates of suicide" on a national level in European countries. It shows that the findings of this study do not hold 16 years later, and it presents some ideas as to why these changes have taken place. It is suggested that there are no simple social correlates to suicide on this level, and that suicide rates tend to vary according to, among other things, international cultural influences. Paper 2 investigates penal legislation relating to suicide in European countries. Three types of punishable action are found: 1) aiding suicide, 2) abetting suicide, and 3) driving somebody to suicide. A majority of European countries include some of these acts in their criminal laws. However, the laws vary very widely between countries, thereby constituting a notable exception to the common presumption of uniformity of law. The scope of the criminalization and the severity of the penalties for the crimes covary both with cultural attitudes towards suicide and with suicide rates. The results are interpreted as indicating the existence of a cultural-normative system, consisting of the cultural attitudes towards suicide, the laws regulating the actions relating to suicide and, perhaps, religion. It influences the occurrence of suicide, mainly by offering individuals cultural models of behavior. Paper 3 describes the process towards the decriminalization of suicide (in 1864) in Sweden, its causes and consequences. It is suggested that the law change took place because of a) the international ideological currents of the time (the heritage of the Enlightenment), b) the examples presented by other European countries, and c) the radical changes in people's behavior. The reform was long overdue, and thus did not have a direct effect on suicide mortality. The increase in Swedish suicide rates in the 19th century is seen as connected with certain aspects of the "modernization" process. Paper 4 addresses the prospects and problems connected with the ap-plication of Talcott Parsons's functionalist theory to suicide research, in particular when contrasting it with Durkheim's theory. It is found that the latter, despite its shortcomings, still dominates socially oriented suicide research. Parsons's theory is seen as implicating the cultural primacy of suicide mortality. Its general usability is, however, highly uncertain since many of its essential constituent parts are not well suited to the subject. A model for suicide rates, consisting of cultural (domestic and inter-national), political, social, diffusion and availability factors is presented. Taken together, the papers constitute a case for cultural (as opposed to socio-structural) research into suicide mortality. They question the repeated testing of structural variables in favor of creating cultural indicators. They suggest some new lines of research, and call for a consistently universal perspective on the problem of suicide and suicide mortality.Härtill fyra uppsatser.
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Frazier, Grant H. "Armed Drones: An Age Old Problem Exacerbated by New Technology." Scholarship @ Claremont, 2016. https://scholarship.claremont.edu/pomona_theses/156.
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The purpose of this thesis is to examine the history behind and the use of militarized drones in modern day conflicts, and to conclude whether the use of these machines, with special attention to the United States, is legal, ethical, and morally defensible. In achieving the aforementioned goals, shortcomings of current policy surrounding drone warfare will be highlighted, acting as the catalyst for a proposal for changes to be made to better suit legal, ethical, and moral considerations. The proposal of a policy to help us work with armed drones is due to the fact that this thesis acknowledges that armed drones, like guns, nuclear weapons, or any type of military technology, is here to stay and that once we acknowledge that fact, the most important step is to make sure we have the right tools to judge the conduct of conflict carried out using armed drones or other weapons that raise similar issues and questions.
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Mor, Shany Moshe. "Law's author, things personated, political representation." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:142e4065-de3c-47ff-a940-f85215fad920.
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This dissertation proposes a normative theory of political representation grounded in popular sovereignty and positive law, rather than in democracy and efficient labour allocation. The first three chapters assess the contributions to the idea of representation of three early modern thinkers. Hobbes proposes a formal model of authorised action at a distance, but, contrary to a long-standing consensus in political thought, not an actual theory of representation. Rousseau, a well-known opponent of representation, proposes ideas about government, sovereignty, and positive law, which, despite his contrary intentions, form a foundation for a normative theory of representation. Sieyes refines concepts from both to create a more mature practical statement on representation which he attempts to implement in three revolutionary constitutions in France in the 1790's. The next three chapters make an argument connecting representation to law creation. First the concept of a decision is defined, and then abstracted through various levels of political authority and action. Law creation is distinguished from all other classes of authorised political decision making by four unique properties which tie in with problems initially raised by the early modern philosophers regarding popular sovereignty. Various numbers of authorised actors are considered as constituting political bodies credentialed to carry out the relevant decisions identified as meeting the minimal conditions of law, and ultimately only assembly — a body numbering in the hundreds, with a reserved place for making recognised decisions, and a formal connection to expressed popular preferences — meets the conceptual requirements of the class of decisions mooted. The thesis ends with an argument connecting law to representation as the solution to the problem of plurality.
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Noriega, Christina R. "Rawlsian Foundations for Justification and Toleration of Civil Disobedience." Scholarship @ Claremont, 2013. http://scholarship.claremont.edu/scripps_theses/232.
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Though ultimately seeking more just law, civil disobedience still entails the breaching of a law. For this reason, most theories hold that people who practice civil disobedience must be willing to accept the legal consequences of their actions. On the other hand, a nation that is truly committed to justice will recognize that its constitution and legal order may in some ways fall short of perfect justice. In this thesis, I defend Rawls’s theory of civil disobedience as unique in its capacity for justification and even government toleration. Appealing to a shared conception of justice, Rawlsian civil disobedients are able to ground their actions in the same principles to which the state is committed. I argue that Rawls’s shared conception of justice is further substantiated when read in the light of his later theory of the overlapping consensus of comprehensive doctrines. I ultimately conclude that civil disobedience construed in the Rawlsian sense ought to receive some degree of toleration by the state, and particularly by constitutional states which maintain a formal commitment to justice in the protection of rights and intentional design of government institutions.
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Buchsbaum, Robert Michael III. "The Surprising Role of Legal Traditions in the Rise of Abolitionism in Great Britain’s Development." Wright State University / OhioLINK, 2014. http://rave.ohiolink.edu/etdc/view?acc_num=wright1416651480.
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Hallengren, Anders. "The code of Concord : Emerson's search for universal laws." Doctoral thesis, Stockholms universitet, Institutionen för litteraturvetenskap och idéhistoria, 1994. http://urn.kb.se/resolve?urn=urn:nbn:se:su:diva-14223.
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The purpose of this work is to detect a pattern: the concordance of Ethics and Aesthetics, Poetics and Politics in the most influential American thinker of the nineteenth century. It is an attempt to trace a basic concept of the Emersonian transcendentalist doctrine, its development, its philosophical meaning and practical implications. Emerson’s thought is analyzed genetically in search of the generating paradigm, or the set of axioms from which his aesthetic ideas as well as his political reasoning are derived. Such a basic structure, or point of convergence, is sought in the emergence of Emerson’s idea of universal laws that repeat themselves on all levels of reality. A general introduction is given in Part One, where the crisis in Emerson’s life is seen as representing and foreshadowing the deeper existential crisis of modern man. In Part 2 we follow the increasingly skeptical theologian’s turn to science, where he tries to secure a safe secular foundation for ethical good and right and to solve the problem of evil. Part 3 shows how Emerson’s conception of the laws of nature and ethics is applied in his political philosophy. In Part 4, Emerson’s ideas of the arts are seen as corresponding to his views of nature, morality, and individuality. Finally, in Part 5, the ancient and classical nature of Concord philosophy is brought into focus. The book concludes with a short summary.
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Weber, Ruth. "Der Begründungsstil von Conseil constitutionnel und Bundesverfassungsgericht : eine vergleichende Analyse der Spruchpraxis." Thesis, Paris 2, 2018. http://www.theses.fr/2018PA020096.
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Le style, c’est la Cour ! – Cette thèse examine la manière dont le Conseil constitutionnel français et la Cour constitutionnelle fédérale allemande motivent leurs décisions, et ce que ces motivations nous disent sur la façon dont chaque Cour se perçoit. Le Conseil constitutionnel peut-il être qualifié de bouche de la Constitution ? et la Cour constitutionnelle fédérale allemande est-elle l’incarnation différenciée de l’état de droit constitutionnel ? Telles sont les questions qui sous-tendent la thèse.La thèse montre que les styles de motivation façonnent l’identité de chaque Cour nationale. Depuis la création de la Cour constitutionnelle fédérale allemande, son style de motivation a contribué à garantir l’acceptation de ses décisions, notamment en ce qui concerne son rôle d’autorité constitutionnelle suprême du pays. En revanche, le style de motivation du Conseil constitutionnel français a traditionnellement servi à mettre en évidence sa subordination au législatif. Toutefois, les réformes de 2016 suggèrent que le Conseil constitutionnel commence lui aussi à s’affirmer en tant que gardien de la Constitution. L’une des raisons probables de ces changements réside dans la manière dont la jurisprudence française est reçue par les autres juridictions nationales et supranationales en Europe. Les réformes facilitant une communication inter-juridictionnelle européenne sont en effet souhaitables. Et bien qu’il soit trop tôt pour le dire, on pourrait faire valoir qu’elles représentent un premier pas important vers un style de motivation européenThe style is the Court! – This thesis explores both how the French Constitutional Council and the German Federal Constitutional Court justify their decisions, and what those justifications tell us about how each Court sees itself. Can the Constitutional Council be characterized as an authoritative voice, the "bouche de la Constitution"?, and is the German Federal Constitutional Court the sophisticated embodiment of a constitutionalized state?, are the questions that underpin the dissertation.The thesis finds that the reasoning styles shape the identity of each national Court. Since the founding of the German Federal Constitutional Court, its reasoning style has helped guarantee the acceptance of its decisions, particularly as it concerns its role as the country’s foremost constitutional authority. By contrast, the reasoning style of the French Constitutional Council traditionally served to highlight its subordination to the legislative. Reforms from 2016, however, suggest that the Constitutional Council, too, is beginning to assert itself as the guardian of the constitution. One probable reason for the changes lies in how French case law is received by other national and supranational courts in Europe, with the reforms facilitating desirable European inter-jurisdictional communication. And although it is too early to tell, it could be argued that they represent a significant first step towards a European reasoning style
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Heimburger, Robert Whitaker. "A theological response to the "illegal alien" in federal United States law." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:43010cbe-32a9-4ecd-abcf-cf57f729bbd5.
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Today, some twelve million immigrants are unlawfully present in the United States. What response to this situation does Christian theology suggest for these immigrants and those who receive them? To this question about the status of immigrants before the law, the theological literature lacks an understanding of how federal U.S. immigration law developed, and it lacks a robust theological account of the governance of immigration. To fill this gap, the thesis presents three stages in the formation of the laws that designate some immigrants as aliens unlawfully present or illegal aliens, drawing out the moral argumentation in each phase and responding with moral theology. In the first stage, non-citizens were called aliens in U.S. law. In response to the argument that aliens exist as a consequence of natural law, Christian teaching indicates that immigrants are not alien either in creation or for the church. In the second stage, the authority of the federal government to exclude and expel aliens was established, leaving those who do not comply to be designated illegal aliens. To the claim that the federal government has unlimited sovereignty over immigration, interpretations of the Christian Scriptures respond that divine sovereignty limits and directs civil authority over immigration. In the third stage, legal reforms that were intended to end discrimination between countries allowed millions from countries neighboring the U.S. to become illegal aliens. These reforms turn out to be unjust on philosophical grounds and unneighborly on theological grounds. While federal law classes many as aliens unlawfully present in the United States, Christian political theology indicates that immigrants are not alien, the government of immigration is limited by divine judgment, and nationals of neighboring countries deserve special regard.
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Marier, April M., and Alex Alfredo Reyes. "Incarceration and Reintegration: How It Impacts Mental Health." CSUSB ScholarWorks, 2014. https://scholarworks.lib.csusb.edu/etd/26.
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Background: Previous criminal justice policies have been non-effective leading to overpopulated prisons and unsuccessful reintegration. There is a lack of effective supportive and/or rehabilitative services resulting in high rates of recidivism and mental health implications. Objective: This study investigated the perceived impact that incarceration and reintegration with little to no supportive and/or rehabilitative services has on the mental health status of an individual. The emphasis was on participant perception and not on professional reports because of underreporting and lack of attention to mental health in the criminal justice system. Methods: Focus groups in the Inland Empire and Coachella Valley were held to gather preliminary data used to develop the survey for this study. The survey was distributed to 88 male and female ex-offenders over the age of 18 who were no longer on probation or parole. Secondary data from United Way 211 and California State Reentry Initiative was collected to report current trends of supportive and/or rehabilitative services. Results: Incarceration was found to negatively impact perceived mental health status, but reintegration was not. Supportive and/or rehabilitative services continue to be rarely offered and accessed, but when accessed, perceived mental health status is better. Supportive and/or rehabilitative services are more readily available. People who are using these services are improving their quality of life, becoming productive members of society, and preventing recidivism. Conclusions: A paradigm shift is currently under way to reduce recidivism by improving supportive and/or rehabilitative services during incarceration and reintegration. Many offenders are receiving services as an alternative to incarceration, recidivism rates are being reduced, and ex-offenders are becoming productive members of society. The field of social work is an integral part of reentry services and should continue advocating for policies and services that support reintegration efforts at the micro and macro level.
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Panton, James. "Politics, subjectivity and the public/private distinction : the problematisation of the public/private relationship in political thought after World War II." Thesis, University of Oxford, 2010. http://ora.ox.ac.uk/objects/uuid:cb636385-aa16-44d1-abf5-2e835e62665c.
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A critical investigation of the public/private distinction as it has been conceived in Anglo-American political thinking in the second half of the 20th century. A broadly held consensus has developed amongst many theorists that public/private does not refer to any single determinate distinction or relationship but rather to an often ambiguous range of related but analytically distinct conceptual oppositions. The argument of this thesis is that if we approach public/private in the search for analytic or conceptual clarity then this consensus is correct. Against this I propose that a number of the most dominant invocations of the distinction can be understood to express public/private as an irreducibly political dialectic that mediates the relationship between the subjective and objective side of social and political life. By locating these conceptually diverse invocations within a broader and more determinate framework of the historical development and contestation of the boundaries which establish the conditions for subjectivity, as the assertion of political agency, on the one hand, and which demarcate, police and defend these particular boundaries, as part of the objectively given character of social life and institutional organisation, on the other hand, then a more determinate character to public/private can be recognized. I then seek to explore the capacity of this model to capture and explain the peculiar post-war problematisation of public/private amongst a number of new left thinkers in Britain and America.
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Schotter, Geoffrey. "A Peculiar Type of Democratic Unity: Carl J. Friedrich's Strange Schmittian Turn 0r How Friedrich Stopped Worrying and Learned to Decide on the Exception." Case Western Reserve University School of Graduate Studies / OhioLINK, 2011. http://rave.ohiolink.edu/etdc/view?acc_num=case1301688653.
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Pouthier, Tristan. "Droit naturel et droits individuels en France au dix-neuvième siècle." Thesis, Paris 2, 2013. http://www.theses.fr/2013PA020050/document.
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Les droits individuels consacrés en France par les déclarations des droits de la période révolutionnaire ont engendré tout au long du XIXe siècle un corps de droit positif destiné à organiser leur exercice légal. La doctrine de droit public a fourni à cette époque, par le biais des ouvrages, des revues et de l’enseignement, un important effort de théorisation de ce corps de droit inédit. Or il est frappant de constater le peu de souvenirs qui ont été conservés aujourd’hui de cet effort théorique. Les divers discours sur les droits individuels qui ont émaillé la période révolutionnaire nous demeurent en réalité bien mieux connus que la doctrine du siècle suivant : la pensée contemporaine reste par exemple en terrain connu lorsqu’elle démêle au sein des discours de la fin du XVIIIe siècle les influences croisées de Locke, de l’École moderne du droit naturel ou de l’Encyclopédie. En revanche, la réflexion menée par la doctrine publiciste du XIXe siècle sur les droits individuels est tombée dans l’oubli parce qu’elle nous est devenue culturellement étrangère. Le cadre intellectuel et moral au sein duquel la théorie des droits individuels a pu être élaborée à cette époque s’est en effet désagrégé définitivement au tournant des XIXe et XXe siècles, pour laisser la place à une domination sans partage du positivisme juridique. Le but de la présente thèse est de rouvrir l’accès à un moment bien déterminé de la réflexion française sur les droits individuels, en replaçant le travail mené par la doctrine publiciste du XIXe siècle dans le cadre de la culture juridique de l’époque. Elle adopte à cette fin une perspective large incluant l’apport,d’une part, de l’histoire de la philosophie, et, d’autre part, de l’histoire de la doctrine juridique et de l’enseignement du droit. La théorie publiciste des droits individuels au XIXe siècle ne devient en effet pleinement intelligible que mise en rapport avec la doctrine très particulière du droit naturel qui a dominé durant un siècle dans l’université française, et qui a profondément imprégné la culture juridique du tempsThe individual rights which were consecrated in France by the declarations of rights from the revolutionary era brought about all through Nineteenth century a body of law which aimed at organizing the legal exercise of these rights. Public law professors made an important effort at that time to theorize this novel body of law through books, scholarly reviews and teaching. It is striking thus to notice that very few memories were kept of this effort. We have far better knowledge today of the several discourses on individual rights which marked the revolutionary era than of the Nineteenth century thinking on these same rights. For instance,contemporary thought remains familiar with intellectual influences on French revolutionaries such as Locke’s, the Modern School of natural law’s or theFrench Encyclopedia’s. On the contrary, the reflection led by Nineteenth century public law scholars on individual rights has been forgotten because it has become estranged from us from a cultural point of view. Indeed, the intellectual and moral framework within which the theory of individual rights was developed at that time collapsed by the turn of the Twentieth century, thus opening the way tothe unrivaled domination of legal positivism. The aim of this doctoral dissertation is to allow a renewed access to this specific moment of the French thinking on individual rights, by setting the theory of individual rights developed by Nineteenth century public law scholars within the wider framework of the legal culture of their time. To this end, the dissertation adopts a wide perspective which includes contributions of both history of philosophy and history of legal science. Indeed, the Nineteenth century legal theory of individual rights becomes fully intelligible only when related to the very specific doctrine of natural law which dominated during a century within French universities, a doctrine which deeply marked the legal culture of that time
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Beaton, Ryan. "Positivist and pluralist trends in Canadian Aboriginal Law: the judicial imagination and performance of sovereignty in Indigenous-state relations." Thesis, 2021. http://hdl.handle.net/1828/13391.
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This dissertation identifies institutional positivism and historically grounded pluralism as interpretive trends in the Canadian case law on Indigenous-state relations, and explores tensions between these trends. These are tensions between practices of judicial interpretation, not between theories of interpretation or legal concepts. They are practices developed case- by-case, with interpretive trends emerging over time through series of cases addressing similar issues in related contexts. Institutional positivist approaches insist that judicial recognition of Indigenous legal orders and accommodation of Indigenous interests must take place within established constitutional forms founded on state sovereignty. Historically grounded pluralist approaches show greater willingness to balance principles of state sovereignty against principles of popular sovereignty and of Indigenous priority in Canadian territory. While the two approaches overlap significantly, their differences sometimes lead to contrasting legal conclusions on key issues of, e.g., treaty interpretation, the relationship between Indigenous legal orders and the state legal system, and the jurisdictional dimension of Aboriginal title.
This dissertation examines these positivist-pluralist tensions in the context of the current period of ideological transition and rapidly evolving imaginaries of Indigenous-state relations. Chapters 1 and 2 explore the case law to highlight concrete ways in which this ideological transition finds doctrinal expression in both positivist and pluralist modes. Chapters 3 and 4 offer broader reflections on philosophical debates relating to legal positivism and the role of popular sovereignty in constitutional interpretation by Canadian courts. The final chapter then considers the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law, with a focus on implementing legislation recently adopted by British Columbia and on two recent judgments that split the Supreme Court of Canada on the proper role of the Canadian judiciary in coordinating Canadian state law with non-state legal orders (Indigenous in one case and international in the other). This concluding chapter explains how the ongoing interplay of positivist and pluralist concerns will inevitably shape the reception of UNDRIP in Canadian law and the ongoing elaboration of Canadian Aboriginal law more generally.Graduate
2022-08-26
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"Art Juridified: Legality in Contemporary Art Workings." Master's thesis, 2018. http://hdl.handle.net/2286/R.I.49275.
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abstract: Art and law have a troubled relationship that is defined by steep hierarchies placing art subject to law. But beyond the interplay of transgressions and regulations, manifest in a number of high-profile cases, there are more intricate connections between the two disciplines. By expanding the notion of law into the concept of a hybrid collectif of legality, the hierarchies flatten and unfamiliar forms of possible interactions emerge. Legality, the quality of something being legal, serves as a model to show the capricious workings of law outside of its own profession. New juridical actors—such as algorithms—already challenge traditional regulatory powers and art could assume a similar role. This thesis offers a point of departure for the involvement of art in shaping emergent legalities that transcend existent jurisdictions through computer code.Dissertation/Thesis
Masters Thesis Art History 2018
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Bellefleur, Kathy. "La fragmentation juridique de la terre en droit privé : étude des représentations sociales et historiques de la terre dans la tradition romaniste." Thèse, 2015. http://hdl.handle.net/1866/13788.
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Jusqu’à une époque récente, un juriste étudiait un modèle juridique donné car il le considérait comme le meilleur. Telle est la constatation formulée par les comparatistes Antonio Gambaro, Rodolfo Sacco et Louis Vogel dans les premières lignes de leur Droit de l’Occident et d’ailleurs. Cette attitude cadre difficilement avec le contexte globalisant actuel. En revanche, un nombre croissant de juristes manifestent un intérêt renouvelé à l’égard du génie propre aux différentes traditions juridiques.
À l’intérieur même d’une tradition juridique, un recul théorique est parfois nécessaire afin de mieux en apprécier la sagesse. Pour H. Patrick Glenn, la tradition juridique est vivante et évolutive. Le droit civil privé du Québec, branche de la tradition romaniste, constitue la résultante d’un processus de transmission de connaissances juridiques dont la pertinence est constamment mise à l’épreuve du temps et du contexte social. Très tôt, les dépositaires du savoir issu de la tradition romaniste ont cherché à définir la place de l’être humain dans la nature et cela, à toute époque confondue. La relation humaine avec la terre a fait l’objet de réflexions juridiques poussées dans le droit classique comme dans le droit moderne. Le droit des biens privé du Québec, branche fondamentale du droit civil, a intériorisé et adapté la somme de ce savoir à son propre contexte social et historique. La conception juridique de la terre a varié considérablement à l’intérieur même de la tradition romaniste.
Ce mémoire propose une étude des représentations sociales et historiques de la terre dans la tradition romaniste. Cette étude a été menée en recourant à une approche interdisciplinaire du droit qui puise dans le savoir des disciplines philosophiques et historiques. Au terme de cette analyse, il sera établi que la structure de la propriété civiliste a conduit à une fragmentation juridique de la terre en autant d’utilités qu’il est techniquement possible pour l’être humain d’en tirer.Until recently, legal scholars studied the specific legal model which was considered to be the best. This is the conclusion reached by comparative scholars Antonio Gambaro, Rodolfo Sacco and Louis Vogel in the first lines of Droit de l’Occident et d’ailleurs. This approach is difficult to reconcile within the context of our current globalized world. Therefore, a growing number of legal scholars have manifested a renewed interest in the strengths of different legal traditions. Within a legal tradition a theoretical examination is sometimes necessary in order to better appreciate its wisdom. For Patrick H. Glenn, legal tradition is living and evolving. Quebec Civil law, from the Roman tradition, is the result of a process of transmission of legal knowledge whose relevance is constantly put to the test of time and social context. Early on and during all ages, those responsible for transmitting the knowledge of the Roman tradition searched for ways to define the place of human beings within nature. The relationship between humans and the land has been the subject of numerous legal reflections both within classic and modern law. The law of private property in Quebec, a fundamental branch aspect of civil law, has internalized and adapted these reflections within its particular social and historical context. The legal concept of the land has varied considerably within the Roman tradition. This thesis proposes a study of social and historical representations of the land within the Roman tradition. It is rooted in an interdisciplinary legal approach, guided by philosophy and history. Through this analysis it will be established that the structure of property within the civil law tradition has created a legal fragmentation of the land, focused on its utilities, in order to enable human beings to derive as much as technically possible from it.
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Tyler, John. "A Pragmatic Standard of Legal Validity." Thesis, 2012. http://hdl.handle.net/1969.1/ETD-TAMU-2012-05-10885.
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American jurisprudence currently applies two incompatible validity standards to determine which laws are enforceable. The natural law tradition evaluates validity by an uncertain standard of divine law, and its methodology relies on contradictory views of human reason. Legal positivism, on the other hand, relies on a methodology that commits the analytic fallacy, separates law from its application, and produces an incomplete model of law.
These incompatible standards have created a schism in American jurisprudence that impairs the delivery of justice. This dissertation therefore formulates a new standard for legal validity. This new standard rejects the uncertainties and inconsistencies inherent in natural law theory. It also rejects the narrow linguistic methodology of legal positivism.
In their stead, this dissertation adopts a pragmatic methodology that develops a standard for legal validity based on actual legal experience. This approach focuses on the operations of law and its effects upon ongoing human activities, and it evaluates legal principles by applying the experimental method to the social consequences they produce. Because legal history provides a long record of past experimentation with legal principles, legal history is an essential feature of this method.
This new validity standard contains three principles. The principle of reason requires legal systems to respect every subject as a rational creature with a free will. The principle of reason also requires procedural due process to protect against the punishment of the innocent and the tyranny of the majority. Legal systems that respect their subjects' status as rational creatures with free wills permit their subjects to orient their own behavior. The principle of reason therefore requires substantive due process to ensure that laws provide dependable guideposts to individuals in orienting their behavior.
The principle of consent recognizes that the legitimacy of law derives from the consent of those subject to its power. Common law custom, the doctrine of stare decisis, and legislation sanctioned by the subjects' legitimate representatives all evidence consent.
The principle of autonomy establishes the authority of law. Laws must wield supremacy over political rulers, and political rulers must be subject to the same laws as other citizens. Political rulers may not arbitrarily alter the law to accord to their will.
Legal history demonstrates that, in the absence of a validity standard based on these principles, legal systems will not treat their subjects as ends in themselves. They will inevitably treat their subjects as mere means to other ends. Once laws do this, men have no rest from evil.
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Fernhout, Harry. "Perspective vol. 39 no. 1 (Jan 2005)." 2013. http://hdl.handle.net/10756/251176.
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Fernhout, Harry. "Perspective vol. 39 no. 1 (Jan 2005)." 2005. http://hdl.handle.net/10756/277525.
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Van, Ginkel Aileen, Brian J. Walsh, Don Posterski, Gary Duim, and Nicholas Terpstra. "Perspective vol. 17 no. 3 (Jun 1983)." 2013. http://hdl.handle.net/10756/251284.
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Hollingsworth, Marcia, Bernard Zylstra, and Albert M. Wolters. "Perspective vol. 14 no. 4 (Aug 1980)." 2013. http://hdl.handle.net/10756/251303.
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