Tesi: "Law Philosophy"

7

Fernández, Agis Domingo. "Moral Law and Political Law in Greek Mythology: The Case of Prometheus." Pontificia Universidad Católica del Perú - Departamento de Humanidades, 2012. http://repositorio.pucp.edu.pe/index/handle/123456789/113286.

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The aim of this work is to offer the reader a tour through the most significant interpretations of the Prometheus myth, attempting to contribute from their standpoint to the clarification of the relationship between moral law and political law. In especial, it aims to highlight in Prometheus’s attitude something that betrays the presence of a strongly individualized conscience, whose dictates lead him to clash with power in its highest expression. On the other hand, different interpretations of the Greek concept of law are examined, where its highest expression is indebted to the idea of destiny. Based on Law, a common order that connects gods and humans is established, although not with the same degrees of subjection. El objetivo de este trabajo es ofrecer al lector un recorrido por las más signiﬁ cativas interpretaciones del mito de Prometeo, intentando, a la luz del contenido de las mismas, contribuir al esclarecimiento de la relación entre ley moral y ley política. En particular, se trata de poner de relieve cómo hay en la actitud de Prometeo algo que delata la presencia de una conciencia, fuertemente individualizada, cuyo dictado le conduce a asumir el choque con el poder en su máxima expresión. Por otro lado, se analizan las diferentes interpretaciones del concepto griego de Ley, estudiando cómo la máxima expresión de la misma es deudora de la idea de destino. En base a la Ley, se establece un orden común, que enlaza a dioses y hombres, si bien no con los mismos grados de sujeción.

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Smith, Sheldon Russell. "Laws and causation : a defense of a modified covering-law conception of causation /." The Ohio State University, 1998. http://rave.ohiolink.edu/etdc/view?acc_num=osu1487949508369487.

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9

Thorsteinsson, Páll Rafnar. "Aristotle on law." Thesis, University of Cambridge, 2011. https://www.repository.cam.ac.uk/handle/1810/252243.

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10

Almeida, Marta. "The concept of law as ordinary language philosophy." Thesis, University of Kent, 2016. https://kar.kent.ac.uk/64326/.

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The subject of this thesis is H.L.A. Hart's The Concept of Law. Two main arguments are made, firstly that there is a perspective through which Hart's seminal work can be purposefully read as an exercise in Ordinary Language Philosophy, which will dissolve many of the problems Hart's commentators encounter with his work. Secondly, that Hart's work is an exercise in Ordinary Language Philosophy applied to the problems of general jurisprudence. To effectively demonstrate the arguments, this thesis is divided into three main sections. Section A provides an overview of Ordinary Language Philosophy, grounding the thesis in its historical context. Section B is the main and most substantive section of the thesis, where the arguments are cultivated through an analysis of the main contributions in this area. Here, contradictions in the existing literature are highlighted, even amongst those who attempt to take the philosophy in Hart's work seriously. The final section, Section C, draws together my arguments and suggests scope for future research. The thesis advocates for a reading of The Concept of Law which would render it more relevant and immediate to the source text; something that has been lacking in the extensive contributions to the analysis of Hart's book since its publication in 1961.

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11

George, Robert P. "Law, liberty and morality in some recent natural law theories." Thesis, University of Oxford, 1986. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.381847.

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12

Philpott, Mark. "Archbishop Lanfranc and canon law." Thesis, University of Oxford, 1993. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.239428.

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13

Stock-Hesketh, Jonathan. "Law in Jewish intertestamental apocalyptic." Thesis, University of Nottingham, 1992. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.361601.

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14

Adams, Thomas Carter. "Conceptual investigation and the ontology of law." Thesis, University of Oxford, 2015. http://ora.ox.ac.uk/objects/uuid:0cec2db0-62e6-4273-975e-f60a39f8ea13.

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An important question for general jurisprudence concerns method: what is the right way to form a philosophical understanding of law? Exploration of this question has, in one form or another, featured as a constant part of the work of those within the discipline, and many different answers have been given. The aim of this thesis is to argue that a controversial conception of philosophical method – as an investigation into our rule-bound conceptual practices and uses of language – is the appropriate means of understanding the nature of law. The first three chapters establish the initial connection between conceptual or linguistic analysis and the ability to gain insight into the social reality of law. I argue, in chapter one, that institutional concepts have a linguistic basis and, in chapters two and three, that legal systems are borne out of the shared use of certain basic concepts on the part of those who make up their law applying institutions, i.e. the courts. To understand the rules according to which such concepts are deployed, I suggest, is to understand the essential structure of legal practice. An assumption of that argument is tested in chapter four by considering Ronald Dworkin’s famous claim that certain forms of disagreement between lawyers and judges are incompatible with a picture of law dependent upon their agreement in the use of basic legal concepts. Chapter five takes up the question of whether the account of social ontology contained in the thesis is compatible with the fact of philosophical disagreement about the nature of law. Finally, chapters six and seven discuss alternate models of theoretical success in general jurisprudence, the first inspired by externalist views of linguistic and mental contents, and the second dependent upon a naturalistic conception of philosophy.

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15

Hagen, Gregory R. "Legal deliberation : a study in the philosophy of law." Thesis, University of British Columbia, 1990. http://hdl.handle.net/2429/29727.

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This thesis examines deliberation in legal proceedings. Legal deliberation is conceived of as the procedures by which a judge, jury, or other rational deliberating agents arrive at a verdict. Legal deliberation involves deliberation about laws and about facts. This thesis is concerned chiefly with deliberation about facts and how value considerations impinge on deliberation about facts. In legal proceedings there are a number of principles that are generally accepted, although their application varies according to whether the procedure is criminal, civil, administrative or other. These principles include: an accused must be proved to have committed an act according to a given standard; a person is presumed innocent until proven guilty; a proposition may be presumed by making an inference from a basic proposition which has been proved; only relevant evidence may be admitted; only reliable evidence is accepted; evidence may be accepted on the basis of judicial notice; and unreliable evidence may be admitted if corroborated. Some less familiar principles are that proved propositions are consistent; all the elements of a case need to be proved in order for the case to be proved; a proposition at issue is not proved unless it is based upon complete evidence; and that the degree of persuasion that a deliberator has towards a proposition at issue be equal to the objective probability of that proposition. Although these principles are generally accepted the intepretation of these principles is unsettled. This thesis attempts to give an interpretation of these principles which justifies them. All interpretations have in common, I hold, that a rational agent has principles for modifying his deliberative state given new evidence. The deliberative state of an agent consists of a set of elements < B, D, S, K, ⁺> where B is the agent's degree of belief over a set of propositions S; K is a subset of S — the full or accepted beliefs; D is the agent's degree of desirability over propositions in S; ⁺ is a dynamical principle of deliberation which determines how values for B(S), and D(S) change over time. The desires of the agent are taken to be a reflection of the values inherent in legal principles. A traditional principle is that in order to convict someone it must be proved that the accused committed the alleged act. There is little agreement, however, about what is involved in proving that a person has done something. There are two main theories which are used in law. One theory, the Austinian theory, takes an action to be a bodily movement that is voluntary. A second, wider view is that an action includes the bodily movement, consequences, relevant circumstances and voluntariness, and perhaps other elements, such as omissions, and things that happen to one, but not a mental event. I argue that an action is a part of a sequence of causally related events. It is that part of the sequence with the properties that are represented to the agent in his causally efficacious mental state. The interpretation of "prove" in the last cited principle is also unsettled. All views hold that, in some sense, a proved proposition be sufficiently probable. There are five views of probability that I canvass: the logical view, the subjective view, the relative frequency view, the chance view and the epistemic view. I argue that the epistemic view is particularly suited to legal reasoning. On this view probability is conceived as a mind independent logical relation between evidence admitted and the conclusion reached on the basis of that evidence. Probability also reflects the underlying chance of single events and so applies to individual actions. The traditional practices have been interpreted as the dynamics of deliberative states. There are two plausible models of these dynamics: Bayesian and non-Bayesian. On Bayesian theories all changes of belief are by Bayes' theorem or generalizations thereof. On a non-Bayesian view beliefs are changed by accepting new beliefs, conjoining them with the old beliefs, and modifying the old beliefs on the basis of the new ones. As an intepretation of legal deliberation the Bayesian view has a number of disadvantages. Among other difficulties I survey, on the Bayesian view one can not consider a case proved if all the elements of a case are proved, and one cannot regard a proved proposition at issue as true. Hence I reject the Bayesian theory. The principle that a person is proved to have committed an act if it is sufficiently probable that he committed such an act gives rise to a difficulty. Ultimately the problem amounts to how a theory of deliberation can meet three principles of legal reasoning: the deliberating agent's beliefs are consistent, the agent believes a proposition A if the probability of A is sufficiently high, and if the agent believes A and believes B then he believes (A & B). I show how this problem is resolved by requiring probability to be resilient. A person is proved to have committed an act if the probability of having committed that act reaches an appropriate standard of proof. But what is the standard that is at issue here? If the judge is a utilitarian, for instance his desire function must meet the constraint that it equals the average desires of all other agents. In the final chapter I argue that a utilitarian rationale for standards of proof violates a person's right not to be convicted if innocent. This is due to the fact that a person can be convicted by a utilitarian deliberator even though it is more probable than not that he did not commit the alleged offence. Arts, Faculty of Philosophy, Department of Graduate

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16

RAPOSO, MARCELO NEVES DE MELLO. "FOUCAULT, THE TRANSFORMATION OF CRITIC AND PHILOSOPHY OF LAW." PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIRO, 2002. http://www.maxwell.vrac.puc-rio.br/Busca_etds.php?strSecao=resultado&nrSeq=3890@1.

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CONSELHO NACIONAL DE DESENVOLVIMENTO CIENTÍFICO E TECNOLÓGICO Esse trabalho busca responder à seguinte questão: é possível uma Filosofia do Direito a partir da utilização dos conceitos, dos métodos e da filosofia de Michel Foucault? Ou seja, essa questão não é idêntica àquela que busca na trajetória do pensador francês o conjunto transformado de suas formulações, colocações e enunciações de problemas relativos ao direito. Aqueles que o conhecem sabem da importância desse objeto nas preocupações filosóficas de Foucault. Assim, apostando numa afirmativa, dirigi meus esforços no sentido de determinar a forma específica a ser dada ao que chamei, pelo menos provisoriamente, nova filosofia do direito, cujo distanciamento em relação às filosofia instituídas do direito seria equivalente àquele que se verifica entre a arqueologia e a genealogia relativamente ao conjunto das filosofias acadêmicas. Admitida essa hipótese inicial, era preciso então definir a arqueologia e a genealogia como instrumentos críticos de interpretação (abstraindo-me de toda problemática envolvendo as relações desse método específico de Foucault, elaborado para dar conta dos discursos das ciências humanas, com a hermenêutica em geral e seus postulados filosóficos) e transformação da realidade histórica e política (e de nós mesmos), pois o uso que dela estamos legitimado a fazer no âmbito de construção de uma outra filosofia do Direito está condicionado à orientação imprimida por Foucault em seus trabalhos históricos. Como poderíamos fazer valer os postulados nietzsheanos do autor de As Palavras e as Coisas, Vigiar e Punir, A Vontade de Saber, tomando como referência o conjunto dos discursos, dos procedimentos e das práticas jurídicas no interior de formações históricas específicas que o arqueologista e genealogista deve recortar e descrever. Uma filosofia do Direito, construída em oposição à uma Filosofia do Estado de Direito; um pensamento pragmático, orientado criticamente (busca do a priori do conhecimento e da ação) pela história, cuja característica pós-moderna está em recusar qualquer tipo de antropologismo transcendental, e cujo objetivo é a descrição do funcionamento das práticas jurídicas sem se valer jamais dos universais históricos, a não ser para denunciá-los, desmascará-los. O contrário, portanto, de uma crítica que pressupõe a transcendência desses universais históricos em seu próprio interior, prisioneira de uma tensão permanente entre as estruturas transcendentais do sujeito e suas formas empíricas de existir, ou seja, aquilo que Foucault chamava de sono antropológico, nosso novo sono dogmático. Assim, aproveitei-me estrategicamente de um texto que se tornou central para o desenvolvimento das hipóteses dessa dissertação de mestrado. Em O Que São as Luzes?, Foucault busca inserir seu pensamento crítico, o tipo específico de crítica histórica que ele buscou desenvolver, em relação ao conjunto das filosofias modernas que buscaram, de formas diferentes, responder à questão kantiana lançada em 1784 por um periódico alemão, a Berlinische Monatsschrift: Was ist Aufklärung? O pensamento que ele descreve como constituindo o tipo de crítica que ele propõe abandonar é justamente o de Habermas1. Ao defini-la como um ethos filosófico, uma ontologia histórica de nós mesmos, Foucault aponta para a necessidade de se transformar a crítica kantiana tradicionalmente transcendental, antropológica, cujos limites são negativos, interditórios, numa crítica históricagenealógica do próprio sujeito que assuma uma atitude positiva diante dos limites historicamente (não mais transcendentais) configurados que nos determinam como sujeitos do que pensamos, dizemos e fazemos; uma crítica direcionada, portanto, para uma ultrapassagem possível desses limites historicamente arbitrários. Podemos dizer que esta dissertação é essencialmente um trabalho de método, de planejamento metod This paper aims answering the following question: is it possible a Philosophy of Law starting from the use of concepts, methods and Michel Foucault s philosophy? That is, this question is not identical to that which searches in the French philosopher s path, the transformed group of his formulations, statements and enunciation of problems related to Law. Those who know him are aware of the importance of this object in Foucault s philosophical concerns. Thus, betting on this statement, I focused my efforts in the sense of determining the specific form to be given to what I called, at least temporarily, new philosophy of Law, whose distance towards the instituted philosophies of Law would be equivalent to those seen between archeology and genealogy relatively to the group of academic philosophies. Admitting this initial hypothesis, it was necessary to define archeology and genealogy as critical interpretation instruments (abstracting me from the whole problem involving the relationships of this specific method of Focault, elaborated to fit the discourses of human sciences, as hermeneutics in general and its philosophical postulates) and transformation of historical and political reality (and of ourselves),since the its use from which we are legitimated to do in the field of the construction of na other philosophy of Law is linked to the guidelines highlighted by Foucault in his historical trials. How could we make Nietzshe s postulates worth by the autor of Les Mots et les Choses, Surveiller et Punir, Volonté de savoir takin as reference the group of discourses, procedures and juridical practices inside the formationof specific histories which the archeologist and genealogist must cut out and describe? Other philosophy of Law erected in opposition to a Philosophy of the Rule of Law; a pragmatic thought, critically guided (searching for the a priori of knowledge and action) by history, whose post-modern characteristic lies in refusing any kind of transcendental anthopologism, and whose objectives is the functioning description of juridical practices without considering the historical universals, only if it is to denounce and expose them. The contrary, however, of a critic which presupposes the transcendence of those historical universals in their inner selves, prisoner of a permanent tension between the subject s transcendental structures and its empiric forms of existing, that is, what Foucault called anthropologic sleep, our new dogmatic sleep. Thus, I strategically took chance of a text that has become central for the development of the hypothesis of this Master s degree dissertation. In Qu est-ce que les Lumières?, Focault attempts to insert his critical thought, the specific type of historical critic that he aimes to develop, regarding the group of modern philosophies which tried, in different ways, to answer to Kant s issue introduced in 1784 by a German newspaper, the Berlinische Monnatsschrift: was ist Aufklarung? The line of thought which he describes as constituting the type of critic that he proposes to abandon is just the same as Habermas. When defining it as a philosophical ethos, na ontology of ourselves, Foucault points out the need of turning Kant s critic traditionally anthropologic, whose limits are negative, into a historical genealogical critic of the individual who assumes himself a positive attitude about historically configured limits which determines us as subjects of what we think, say and do; na addresses critic, therefore, to possibly exceed these historically arbitrary limits. It could be said that this paper is essentially a work of methods, methodological planning of a line of though which seeks production, adapting new concepts to this new philosophy of Law that it is not only supposed to be possible, but could truly be found in classes, lectures, interviews, in the works of a French historian. It is in this sense that the name critic mus be understood, fundam

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17

Nyamutata, Conrad. "Lubanga, child soldiering and the philosophy of international law." Thesis, De Montfort University, 2015. http://hdl.handle.net/2086/11037.

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International criminal law lacks a coherent theory suitable for its own context. This lacuna has left the International Criminal Court (ICC) – the most prominent global penal institution - without clear theoretical premise(s) to guide prosecution and punishment. In its current incarnation, international criminal draws on Western liberal modalities founded on dominant domestic penal rationales of retribution and deterrence. However, these principles appear incongruous to the crimes the ICC prosecutes. The theoretical rationales of ICC have barely been interrogated against an extant case. In 2012, Democratic Republic of Congo (DRC) rebel leader Thomas Lubanga Dyilo became the first defendant to be convicted and jailed by the ICC for the conscription, enlistment and use of child soldiers. The use of child combatants for purposes of war is a pernicious global problem outlawed in international criminal law. However, of the crimes designated as ‘egregious,’ it has historically been under-enforced and inadequately articulated as a mass crime, and allocated lesser gravity. The seminal case of Lubanga provides us with a propitious opportunity, not only to locate child soldiering, but also inquire into the theoretical underpinnings of the ICC with regards to mass crime. Mass crimes are distinct from ordinary crimes. International courts charged with adjudicating them face constraints and can only prosecute a few of the suspected perpetrators. The overarching theoretical and analytic framework for this thesis is premised on the notion that international criminal law needs a plausible theory or rationale suitable for its context and crimes it prosecutes. It is important for the ICC to premise its work on a realistic rationale for it to be purposive. A more logical analysis of international penality would draw on the conceptual underpinnings of the whole project of international law and specific features of the ICC. A good starting point is to note that international criminal justice is largely symbolic. A more plausible penal rationale would consider the inhibitions the ICC faces and the role it can still perform with regards to mass crime. The ICC symbolises contemporary standards of an ‘international community.’ It is this concept from which we can extrapolate viable rationales for ICC penology. How do the trial, conviction and punishment of Lubanga for the ‘mass crime’ of child soldiering serve the collectivist ethos of international law and society? The project that follows proposes a penal rationale that accounts for the ICC’s sui generis character, the nature of crimes it adjudicates and what the court can realistically achieve. The ultimate value of international criminal law may rest not in its functions of retribution or deterrence, but in its role in identity construction, in particular in constructing a cosmopolitan community identity. The overall argument for the thesis is that while retribution and deterrence are valid, the most plausible rationale for ICC penality is the expressive function of law (expressivism). The few cases of mass crime the ICC can prosecute can achieve primarily more realistic aims of expression of global or ‘cosmopolitan’ norms, norm internalisation and the reinforcement of collectivism international law and society. Lubanga provides an illustrative exemplar for this argument.

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Giudice, Michael Waluchow Wilfrid J. "The significance of contingent relations in the philosophy of law /." *McMaster only, 2005.

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19

Leung, Kwan-yuen Physer. "For a critical theory of law: a Levinasian critique of Dworkin's theory of law as integrity and Habermas'sdiscourse theory of law." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 1999. http://hub.hku.hk/bib/B31238853.

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20

Burke, Daniel. "Morality in Law: Capital Punishment and the Mentally Retarded." Miami University Honors Theses / OhioLINK, 2003. http://rave.ohiolink.edu/etdc/view?acc_num=muhonors1111150529.

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21

Shapiro, Matthew Abraham. "Enforcing respect : iberalism, perfectionism, and antidiscrimination law." Thesis, University of Oxford, 2012. http://ora.ox.ac.uk/objects/uuid:ee83edc5-162c-42ca-92d8-498a09725d5b.

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Can contemporary liberalism justify antidiscrimination law? The question seems impertinent until we consider contemporary liberalism’s commitment to limited government. Once we do, we realize that contemporary liberals may not complacently assume that their theories justify antidiscrimination law simply because discrimination based on race or sex is so obviously wrongful. Rather, they must scrutinize antidiscrimination law just as they do other regulation of individual conduct. Providing such scrutiny, this thesis argues that three of the most prominent contemporary liberal doctrines of political legitimacy—John Rawls’s “political liberalism,” an antiperfectionist version of the “harm principle,” and Joseph Raz’s “liberal perfectionism”—all fail to justify core applications of antidiscrimination law, applications that we intuitively consider perfectly legitimate. In light of this failure, contemporary liberalism faces a dilemma: it must jettison either its commitment to comprehensive, uniform antidiscrimination regimes or its antiperfectionism and overriding commitment to personal autonomy. This thesis argues for the latter course by providing an account of the wrongfulness of discrimination based on race or sex that condemns all instances of the conduct. According to this account, discrimination is wrong because acting on discriminatory intentions is wrong. More specifically, by taking another person’s race or sex as a reason to treat her less favorably than one would treat people of other races or the other sex, one fails to respect her as a person, to regard her as a being of ultimate value. Unlike contemporary liberal accounts, this account is fully perfectionist, since it defines discrimination in terms of the intentions of discriminators, and the intentions of discriminators in terms of their attitudes, which partly constitute their moral characters. So long as we remain committed to antidiscrimination law in its current form, we must attend to discriminators’ characters. And to attend to discriminators’ characters, we must be willing to espouse perfectionism.

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Bovey, Alexandra. "Didactic distractions framing the law : the Smithfield decretals." Thesis, Courtauld Institute of Art (University of London), 2000. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.369057.

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Kachroo, Gaytri. "Children, violence, and law." Thesis, McGill University, 1990. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=59922.

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In this dissertation, I reconceptualize the concept of violence to consider its physical, sexual, psychological and economic dimension. I attempt to add to existing meanings of "violence" to include not only forms of abuse on the individual and group level but also abuse practiced by legal, political, ideological and economic institutions in a collective and systemic manner. Due to the significance of child maltreatment around the globe, I focus on the impact of law on this problem specifically through a study of domestic and international use of the best interests' doctrine; evidentiary issues relating to children; child abuse reporting mechanisms and protection schemes in Canada and elsewhere; and the international protection of children's rights. Lastly, I analyze the benefits of a reoriented rights-based approach to empower children within and without the legal arena.

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Culver, Keith Charles. "Authority and normativity in H. L. A. Hart's philosophy of law." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1996. http://www.collectionscanada.ca/obj/s4/f2/dsk3/ftp04/nq24401.pdf.

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25

Lavin, Michael. "Understanding limits: Morality, ethics, and law in psychology." Diss., The University of Arizona, 1999. http://hdl.handle.net/10150/284605.

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Work by Sales and Lavin has suggested that it is possible to improve the moral and ethical thinking of psychologists. In particular, moral and ethical thinking by psychologists could be improved if psychologists learned to use defensible moral metrics. The usefulness of formal training in ethics and morality, with the implicit condemnation of the moral metrics that might be taught in such training, has been challenged by writers such as Justice Holmes. He has alleged that professionals learn how to behave in their professional roles by practicing them. A variety of problems are noted with Holmes' view. Further, psychologists cannot rely on expert advice from Institutional Review Boards or Ethics Committees, even if they wished to do so. Institutional Review Boards, and by implication Ethics Committees, have serious deficiencies. However, psychologists can make considerable progress in their moral and ethical thinking, if they distinguish ethics from morality and also notice the similarities between moral thinking and scientific thinking and theorizing. A controversy over the recovered-memory therapy is employed to illustrate some of these distinctions and similarities. The argument continues by developing two moral metrics. The first begins with ethics and culminates in moral appraisal. The second makes moral appraisal an earlier step than ethical appraisal. With these metrics described, it is then noted that a popular metric in psychology, that of Koocher and Keith-Spiegel, is inadequate. It is then shown that the two moral metrics earlier described are reasonably believed to be adequate. The adequacy of one of them is directly illustrated with an example involving the question of whether persons with serious mental illnesses should be allowed to enter into contracts that would relax the criteria for their involuntary hospitalization and treatment. It is concluded that teachable, intellectually defensible moral metrics are possible, and that their use would improve the moral and ethical thinking of psychologists.

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Salman, Basil. "An analysis of negative liberty." Thesis, University of Oxford, 2016. https://ora.ox.ac.uk/objects/uuid:8725de30-bd73-4eb3-b9f1-e32c8d2ef668.

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Too many people analyse the concept of negative liberty in a way that obscures its place and significance in our lives. Here I seek to redress the balance by shining light on its structure and value. With respect to the essential structure of negative liberty and unfreedom, I push for a more intuitive, dynamic, and subjectivist agent-centred approach in place of the more mechanistic Hobbesian and austere Hayekian conceptions that have tended to predominate. Emphasising the importance of self-direction, authenticity and self-development to liberty delivers both a more coherent negative concept internally, and a notion that is more compellingly distinguished from its positive counterpart. Regarding liberty's relationship with coercion and manipulation, my explanation is that rational and emotional compulsion constrains negative liberty because it interferes with options and restricts freedom of choice. With respect to the significance of negative freedom and why we care about it, I consider its general, content-independent value to lie in its contributions to autonomy as well as to values more often associated with positive freedom such as individuality and self-realisation. Harnessing Mill's thesis, I highlight the importance of self-understanding and self-knowledge in the process of self-development, and explain from a non-utilitarian angle the nature of the negative opposition to paternalism and control.

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Newhouse, Marie E. "Kant's Typo, and the Limits of the Law." Thesis, Harvard University, 2013. http://dissertations.umi.com/gsas.harvard:10819.

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This dissertation develops a Kantian philosophical framework for understanding our individual obligations under public law. Because we have a right to do anything that is not wrong, the best interpretation of Immanuel Kant's Universal Principle of Right tracks the two ways--material and formal--in which actions can be wrong. This interpretation yields surprising insights, most notably a novel formulation of Kant's standard for formal wrongdoing. Because the wrong-making property of a formally wrong action does not depend on whether or not the action in question has been prohibited by statute, Kant's legal philosophy is consistent with a natural law theory of public crime. Moreover, because the law can obligate us only by establishing a universal external incentive to obey its commands, statutes that impose only fines on nominal violators do not constrain our lawful options. Instead, if they are otherwise just, such statutes must be regarded as rightful permissive laws, according to which we may incur liabilities through our voluntary choices.

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Polat, Necati. "Interpreting the law : a reassessment of the dichotomy between the law and its readings." Thesis, University of Nottingham, 1993. http://eprints.nottingham.ac.uk/14365/.

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The purpose of this thesis is to pursue a grammatical, common sense, reading of some of the contemporary accounts of the workings of law. In so doing it relies extensively on the critical work by Heidegger, Wittgenstein, Derrida, and Stanley Fish, writers assumed to present a somewhat unified perspective on such matters as understanding, language, meaning and reading. The shorter of the two parts, 'Judgement, Criteria, Justice,' sets the stage. Looking at Jean-Franςois Lyotard's discourse, in Just Gaming, of a semantic and moral apocalypse, and his subsequent search for a concept of the just, the first part introduces the principal themes of the essay. These themes at once form some of the major concerns of the contemporary legal theory; the text of the law, the authorial intention, the politics of interpretation, the interpreter, and the limits of interpretation. Chapter 1.1 probes the concept of authorship as formulated by Lyotard. According to him, the modern situation produces a concept of the author that is detached. The modem situation lacks the transparency that characterizes the classical situation, where the author and the reader could relate to one another, and where, therefore, interpretation was a possibility. The Lyotardian concept radically distinguishes between the realms of the author and of the audience, a distinction that suppresses the ineluctably fraternal, attached quality of authorship. Chapter 1.2 is a critique of the concept of judgement Lyotard advances. It explores the two distinct orders within which, according to Lyotard, judgement is practicable: those of faith ('the Jewish pole') and paganism. While both orders exclude the concept of an autonomous subject - a false order which defines the rhetoric of the mainstream Western thought - the homogenous formalism of one, faith, contrasts with the heterogenous localism of the other, the pagan attitude. Questioning the dichotomy, the discussion goes on to argue for a concept of the primordiality of the attached, situated, quality of both the issuing of the judgement and of its possible interpretations, irrespective of the distinct orders of rhetoric – autonomous, heterogenous, religious - in which they are presented. Chapter 1.3 explores the Lyotardian reworking of Kant's categorical imperative and seeks to point out the problematic nature of the enterprise. The discussion questions the idea that a thematic, non-moral, non-political, concept of the just may necessarily function better than one which is of common opinion, and indicates the illusory character of the Lyotardian venture radically to contrast what would be a thematic concept of the just with that which is mere common opinion. Chapter 1.4 continues on the subject of the politics of interpretation - can what would be the unruly, fantastic dictates of morals be avoided on the basis of a universalistic, politics-free, criterion? - to test the opposition Lyotard draws between the Sophistic and the Kantian positions. While from the Sophistic viewpoint a genuine opposition of competing moralities is not a possibility, the Kantian morality makes conceivable the concept of a rational, as opposed to mere opinion-based and rhetorical, choice. The longer part, The Law and Its Readings,' is a reading of some of the motifs of Franςois Gény's Method of Interpretation and Sources of Private Positive Law. Each of the four chapters that make the second part aims to dissolve one of the four binary oppositions that characterize the contemporary scene - polarities that are strictly mere variations on the theme of the dichotomy between the law and its readings, the law and that which is made of it: the text and the extratext, intention and extension, the tame and the freakish, the real and the formal. In the four chapters that form the second part, the logic behind the oppositions is explored, and a grammatical reassessment, which indicates the terms of each one of the polarities ultimately metamorphic and elusive, though, naturally, of possible grammatical use, is suggested. Chapter 2.1 examines some of the contemporary arguments relating to the text of the law. Extratextualist positions such as, famously, Gény's counter the mainstream textualist positions by arguing against the mechanistic conception of the law that is written, all inclusive, and once and for all. Curiously, however, the notion of the law therefore invoked presupposes a notion of the text which might best suit the formalism of the mainstream positions - namely that the text, as opposed to what might tentatively be called history, is the locus of meaning. What follows this markedly positivistic notion of the text, a notion invoked in particular in the extratextualist positions on the interpretation of the American Constitution, is a fear of judgement that would be made on the basis of what is often (as in the segregation cases) an obsolete concept embodied in the text. This fear, in fact, is not different from the formalistic, mainstream-textualistic, fear of what would become of the law in the absence of formally circumscribed, textual, constraints. In exploring the theme, the discussion focuses on certain individual cases, such as the segregation cases of the U.S. Supreme Court, arguments over which have been an integral part of the theory. Chapter 2.2 is devoted to the considerations of the legislative will. Counterintentionalist positions regarding the interpretation of the law, it argues, may in fact suggest an inherent intentionalism, as epistemologically understood, which may in turn point in the direction of a reversal not dissimilar to that of the binary opposition of textualism and extratextualism. The traditional arguments against the mainstream intentionalism seem to gather on two points: first, that intention is a state of mind and therefore impossible to uncover for those who do not have a natural access inside others' heads; and secondly, that even if it were possible to uncover it, what one has with the legislative will is but a fiction, for it refers to, not one, but many minds who could not possibly intent one and the same thing. The discussion seeks to disclose the way counter-intentionalist arguments subscribe to traditional intentionalism by assuming intention as an occult presence, to use two concepts, one Wittgesteinean and one Derridean, together. And it argues how intention as a concept is a possibility precisely because it is in each case a collegiate, fraternal extension. Chapter 2.3 explores the problems of judicial discretion, politics, and the politics of interpretation. It discusses some of the traditional criticisms of judicial review, in particular the countermajoritarian objection, and points out the metamorphic character of some of the positions in the debate. In that countermajoritarianism refuted from a majoritarian viewpoint stands right behind the very idea of constitutionalism, a distinct refuge at once of the majoritarian positions. And the positions that resist the idea of a timid, majoritarian, judiciary appear to be equally paradoxical, for these positions are simply for being ill at ease with the constitutional principle that is countermajoritarianism par excellence. The discussion then focuses on the Dworkin-Fish debate on the politics of interpretation and at once attempts to pin down some of the veins in Dworkin's thinking on the subject of judicial licence. An overall evaluation of the conceptual scheme, potentialities, and assumptions of legal realism is attempted in chapter 2.4. Realism appears to emphasize the part of the interpreter, as opposed to the text, in the event of adjudication, and question the traditional assumptions of formalism whose mechanistic concept of jurisprudence equates the law with its text. While some of the most crucial of the realist objections to the formalistic concept of adjudication have been genuine and insightful.

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29

Jackson, Myles Wayne. "Goethe's law and order : nature and art in Elective Affinities." Thesis, University of Cambridge, 1991. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.386168.

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30

Saccone, Giuseppe Mario. "History as rhetoric in Hobbes' dialogue of the Common Laws and the rise of modern philosophy." Thesis, Hong Kong : University of Hong Kong, 2000. http://sunzi.lib.hku.hk/hkuto/record.jsp?B22050449.

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31

Frondorf, Aaron William. "Hoodoo and the law| Mostly printed works." Thesis, Colorado State University, 2015. http://pqdtopen.proquest.com/#viewpdf?dispub=1590571.

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Abstract (sommario):

This paper discusses the relationship of ideas to their media, through the relationship of contents to a book and through the use of aesthetic barriers. The conceptual content of the artworks produced center around epistemological self-betterment and practical mysticism. I discuss in this paper my thought process, the work itself, and the works intended functions. I discuss the idea of the book and my rationale behind working in printmaking.

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32

Greasley, Kate. "Life before birth : abortion and prenatal personhood in morality and law." Thesis, University of Oxford, 2013. http://ora.ox.ac.uk/objects/uuid:33ca0400-9e6a-4f83-b8f1-711dbfce1751.

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This thesis is about the legal and moral status of abortion. It is primarily concerned with the metaphysical status of the foetus, with particular attention to the question whether the foetus is properly characterised as a person in the philosophical sense. The argument of the thesis proceeds in two parts. The first part surveys certain lines of argument to the effect that the question of prenatal personhood is immaterial to the moral and legal permissibility of abortion. Against these claims, it argues that the personhood status of the foetus is indeed central to the moral and legal appraisal of abortion practice. The second part focuses on the metaphysical question in its own right. The thesis proposes a theoretical underpinning for the ‘gradualist’ view of human life before birth, according to which the human foetus is a fuller instantiation of a person the more biologically developed it is. It sets out to defend the kernel of the gradualist thesis against a cluster of criticisms, commonly advanced by those who endorse the belief that the personhood of human beings begins at conception. One notable challenge of this sort, which the thesis aims to address, asserts that any graduated account of personhood before birth is logically inconsistent with basic human equality. Finally, the thesis considers a few practical implications for the legal regulation of abortion stemming from the gradualist thesis, and the rule of law standards by which a regulatory framework must abide.

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33

Patterson, Michael Lewis. "The public philosophy of John Dewey and the evolution of law enforcement." Thesis, Texas A&M University, 2004. http://hdl.handle.net/1969.1/457.

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Abstract (sommario):

This thesis identifies the convergence between John Dewey's ideas regarding the public and the evolution of law enforcement practices. There are four areas covered, those being responses to major shifts in cultural activities and assumptions, learning as continuous, Dewey's ethics and the role of discretion in law enforcement, and community as participatory and inclusive. Dewey's ideas in these four areas are explained and examples are provided that demonstrate the convergence. Particular attention is given to the changes brought about by the migration from the professional model to the community policing model. The thesis also claims that both models are necessary for law enforcement to have a sufficient repertoire to provide their services and that deciding which model to use should be based on what the task is. It also states that law enforcement should be open to future developments that can improve how law enforcement services are provided.

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34

Wynyard, Julia Claire. "The literary property market: the philosophy, nature, and history of copyright law." Thesis, Boston University, 2003. https://hdl.handle.net/2144/27806.

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Abstract (sommario):

Boston University. University Professors Program Senior theses. PLEASE NOTE: Boston University Libraries did not receive an Authorization To Manage form for this thesis. It is therefore not openly accessible, though it may be available by request. If you are the author or principal advisor of this work and would like to request open access for it, please contact us at open-help@bu.edu. Thank you. 2031-01-02

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35

Bartleman, Laurent William. "Intangible security : choice of law rules for intangible secured financing under the Uniform commercial code." Thesis, McGill University, 2005. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=98602.

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Recent revisions to Articles 9 and 1 of the Uniform Commercial Code (the "UCC") have proposed new intangible secured financing choice of law rules. These choices of law rules contain rules that represent all three major schools of thought in the field of conflicts of laws: multilateralism, substantivism and unilateralism. This thesis examines the new rules by analysing them in the context of the strengths and weakness of these schools of thought and in light of the requirements of a secured financing system. On the whole the strong mulitlateralist focus of the majority of the rules provides a solid basis for the UCC's choice of law provisions. The elimination of the rule that was based on a unilateralist basis is a logical improvement. However, the inclusion of a rule, §9-307(c), with a substantivist basis introduces an element of uncertainty into the system and should be removed.

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36

Sempill, Julian Andrei. "Making law about power." Thesis, University of Oxford, 2015. https://ora.ox.ac.uk/objects/uuid:a5ffd843-dbad-44c5-b963-bca59da66f6a.

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During the seventeenth and eighteenth centuries, the inhabitants of some parts of Europe and the North American colonies were confronted with proto-state institutional arrangements. In certain cases, they responded ambivalently. That ambivalence is at the heart of what I will call the 'limited government tradition'. The tradition's adherents thought that long historical experience, not to mention the events of their own times, provided ample evidence of the corrupting effects of power on those who wield it. Power-holders, left to their own devices, are likely to succumb to the temptations of power by exercising it arbitrarily. Where they are able to do so comprehensively and systematically, the upshot is tyranny. How, then, to ensure that state power is constituted in a manner that is inhospitable to tyranny? The tradition envisaged a range of measures, including a distinctive vision of 'the Rule of Law'. The Rule of Law would both define and enforce certain limits on state power. This study argues that the tradition's hostility to political absolutism is based on moral foundations which apply with equal force to economic power. The tradition ought to examine the modern constitution of economic power to determine whether it is hospitable to arbitrariness and tyranny. If such an examination is undertaken, we learn that modern economic power poses the kind of moral dangers that the tradition's Rule of Law project is designed to combat. However, the tradition assumes that it need not treat economic power as even a potential target of the Rule of Law. I will call that assumption the 'Consensus'. This study's first major aim is to explain the origins and stubbornness of the Consensus. Its second major aim is to persuade readers that the Consensus is mistaken: the tradition must regard economic power as, at least, a potential target of the Rule of Law.

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37

Barnes, Lucy Dawn. "Performances of law under postmodern conditions." Thesis, University of Kent, 2010. http://eprints.kingston.ac.uk/21028/.

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38

Yiannakis, Eleni. "Human reproductive cloning community, identity, stability : reinventing creation." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1999. http://www.collectionscanada.ca/obj/s4/f2/dsk1/tape9/PQDD_0020/MQ55112.pdf.

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39

Hall, Barbara Jean 1956. "On reproduction: Rights, responsibilities and males." Diss., The University of Arizona, 1997. http://hdl.handle.net/10150/288746.

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In this dissertation, I have analyzed some of the problems associated with male reproduction. I discuss basic notions regarding the origin of parental rights concluding that whatever rights parents have regarding their children arise because of the biological connection between the parents and child. A biological parent has prima facie rights to his child because that parent has property-type rights to his own body. I suggest that parental responsibilities automatically incur whenever the conception of a child is intentional or voluntary, or when conception is the result of negligent or reckless sexual activity. Only when procreation is involuntary does automatically delegating parental responsibilities to a male seem morally problematic. The category of acts which would constitute involuntary procreation, however, is very narrow. I discuss morally problematic issues that arise when a child is born against the wishes of the male progenitor. Focusing specifically on the issue of child support, I conclude that the father should have some responsibility for the support of the child. The only time for which the imposition of parental responsibilities upon a reluctant father is morally questionable would involve the fraudulent misrepresentation of the female regarding her use of contraceptives, combined with some affirmative action by her to undermine the male's attempted effort at contraception. Finally, I discuss the moral and legal implications of a woman's decision to obtain an abortion against the wishes of the potential father. I conclude that her abortion could seriously harm the male's procreation interests. But, given the vital role women have in the reproductive process, women should possess rights (regarding their bodies and reproduction) superior to those males might possess. The evolution of reproductive technology, however, has made these greater rights a contingent fact.

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40

Wirts, Amelia Marie. "Criminal Oppression: A Non-Ideal Theory of Criminal Law and Punishment." Thesis, Boston College, 2020. http://hdl.handle.net/2345/bc-ir:108954.

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Thesis advisor: David M. Rasmussen This dissertation defines and defends the concept of ‘criminal oppression.’ Criminal oppression occurs when people are excluded from full participation in important social and political institutions because they are perceived to have violated certain community norms. Oppression is primarily a structural phenomenon, in which practices of formal and informal institutions unjustly harm people based on group membership. In structural oppression, there is rarely an individual who can be said to be responsible for the oppression, but I argue that at times, individuals may also be agents of oppression when they create, perpetuate, or exacerbate structural oppression. Applying this theory of oppression, the criminal justice system in the United States is an oppressive structure that unjustly harms those considered to be ‘criminals’ through a variety of practices. There are three categories of unjust practices: policing, adjudication and punishment, and collateral effects of arrest and conviction. These three categories of practices create the social group ‘criminals’ by subjecting certain people to these kinds of treatments. I use the word ‘criminal’ to describe those who are treated as criminals by police, the courts, and even private individuals like employers. To be a ‘criminal,’ it is not necessary that one has committed a crime or been convicted of a crime. Racial and criminal oppression deeply related historically and conceptually. Nevertheless, they are distinct kinds of oppression. In the United States, those who are not racially oppressed but are ‘criminals’ face many of the same unjust obstacles as those who are racially oppressed in addition to being ‘criminals.’ Some may argue that ‘criminals’ duly convicted of crimes deserve to be socially and politically excluded. But, I argue that the criminal justice system is not properly conceived of as an apolitical institution that can assess moral blameworthiness. Nor should it be able to offer punishments that amount to social and political exclusion. Instead, the criminal justice system is one political institution amongst many, and it ought to be governed by the same principles of liberty and equality that govern other political institutions. Criminal law’s proper function is to facilitate government as a system social cooperation. Therefore, it ought to respond to criminal acts with actions designed to promote inclusion rather than exclusion. Moreover, even if someone has committed a crime, that does not mean that they ought to be subject to violence or permanent second-class status. Finally, I address specific, feminism-driven arguments for using the criminal justice system to fight violence against women. Some feminists argue that the expressivist function of punishment—the ability of punishment to express disapproval and disavowal—makes it a perfect tool for fighting the normalization of violence against women. The problem, they contend, is that this violence is under-punished in the United States, and the solution to ending violence against women is to increase prosecutions and advocate for harsher punishments because punishment will change the social norms and make violence against women rarer. To this, I argue that those who create laws or mete out punishments do not have control over the social meaning of punishment with precision. The historical and present-day oppressive features of criminal law and punishment interfere with the ability of prosecution and punishment to condemn certain types of acts without also condemning people. Thus, feminists who try to use the criminal justice system to fight gender-based violence will find it to be ineffective and potentially harmful to the already oppressed group of ‘criminals.” Chapter 1argues that ‘criminals’ are oppressed using a structural model of oppression that focuses on how collections of institutional policies and practices can create and maintain unjust power relations between groups of people. I will also use an externalist theory of group identity to argue that being arrested or convicted of a crime is not necessary or sufficient for membership in the social group ‘criminal.’ Chapter 2 explains the relationship between racial oppression and the oppression of ‘criminals,’ noting the historical development of the modern prison system. Chapter 3 argues that the proper role of criminal law is to support systems of social cooperation, not to punish pre-political wrongs. I will suggest that criminal law is in essence part of the social contract, not a separate sphere of justice to which distinctive, retributive principles apply. Instead, the criminal law cannot determine moral blameworthiness and is only justified in sanctioning rule violations for the sake of supporting social cooperation in a society whose institutions are worth supporting. In Chapter 4, I propose a feminist, expressivist defense of the use of prosecution and harsh punishment as a response to rape and domestic violence that takes the structural nature of violence against women into account. Chapter 5, however, demonstrates why even this theory cannot justify incarceration in the non-ideal sphere because of the oppressive history and practice of the American criminal justice system Thesis (PhD) — Boston College, 2020 Submitted to: Boston College. Graduate School of Arts and Sciences Discipline: Philosophy

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41

Needham, John L. "Napoleon I and the Catholic Church : a study in law and politics." Thesis, University of Cambridge, 1989. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.334173.

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42

Ito, Akio. "Matthew's understanding of the law with special reference to the fourth antithesis." Thesis, University of Oxford, 1989. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.328945.

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43

Edwards, James Robert. "Uses and misuses of criminalisation." Thesis, University of Oxford, 2011. http://ora.ox.ac.uk/objects/uuid:6f8c71da-bdcf-4412-aeaf-5463544b5908.

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Abstract (sommario):

Which uses of the power to criminalise are misuses of that power? When, in other words, is an exercise of the power to create a criminal offence an exercise of that power which cannot be morally justified? This thesis seeks to provide one part of the answer, by addressing an aspect of the question little discussed by criminal law theorists. Thus it seeks not classes of conduct which it is impermissible to criminalise, nor classes of objective which offence-creators cannot permissibly pursue. Rather the thesis addresses the distinct issue of means – of how criminal offences (are set up to) bring about their creators’ objectives. It asks which means of achieving objectives it is impermissible to employ or make available, and how the power to criminalise must be used to avoid their employment or availability. In answering these questions the thesis distinguishes a number of types of criminal offence, by reference to the means by which the tokens of each (are set up to) achieve objectives. The argument is that to create tokens of these types is often to misuse power, because it is often to employ, or make available, impermissible means. This judgment of impermissibility is a function of a number of principles of political morality, some of which are developed at length in the course of the thesis. No single principle (or set of principles) is presented as an absolute limit on the power to criminalise; but each is part of a complete picture of how that power can permissibly be used, and contributes to vindicating the thesis defended within these pages. That thesis, to repeat, is that some uses of criminalisation are no better than misuses, on account of the means by which the resulting offences (are set up to) achieve their creators’ ends.

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44

Blaas, Fey-Constanze. "Double criminality in international extradition law." Thesis, Stellenbosch : Stellenbosch University, 2003. http://hdl.handle.net/10019.1/53398.

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Thesis (LLM)--University of Stellenbosch, 2003. ENGLISH ABSTRACT: The object of the thesis is to examine the content and status of the double criminality principle in international extradition law. The double criminality principle says a fugitive c annat be extradited unless the conduct for which his extradition is sought is criminal in both the requesting state and the requested state. This thesis is based on a study of sources of international law and domestic law and ideas presented in legal literature. The double criminality principle has developed over several centuries and it has been embraced by most states in one form or the other. The principle serves several purposes, of which the most dominant is the notion of state sovereignty. States apply the double criminality principle differently due to its multiple rationale. Legal literature has distinguished two main methods of interpretation, called interpretation in abstracto and in concreto. Whereas the in abstracto method focuses on the theoretical punishability of the conduct, the in concreto method attaches importance to all factual, personal and legal aspects. There are also ways of interpretation that are a combination of these two methods. Most states can be classified into one of the two main groups of interpretation, but in general most states have adopted a specific method of interpretation that is unique to each particular state. There is thus no uniform method of interpretation in international extradition law. This thesis attempts to determine whether the double criminality principle has become a rule of customary international law. Though most instruments on international or domestic extradition law include the double criminality principle, the strong disagreement among legal scholars as to the legal status of the principle leads to the conclusion that the double criminality principle is not a rule of international law today. This thesis contains an examination of whether the principle of double criminality can be classified as an international human rights norm. Though the principle of double criminality has striking similarities with human rights as it partly aims at protecting individuals facing extradition, there are also a number of aspects that distinguish the principle from traditional human rights. This is partly attributable to the fact that international extradition law is not the arena where general international human rights have developed. It is therefore concluded that the double criminality principle does not form part of international human rights law. AFRIKAANSE OPSOMMING: Die oogmerk van hierdie tesis is om die inhoud en status van die beginsel van dubbelkriminaliteit in internasionale uitleweringsreg te ondersoek. Hierdie beginsel behels dat die handeling ten opsigte waarvan die uitlewering versoek is, misdade in beide die staat wat uitlewering versoek as die staat waarvan uitlewering versoek word, is. Die metode wat hierdie tesis onderlê is 'n literatuurstudie van bronne in die internasionale en nasionale reg. Die dubbelkriminaliteitsbeginsel het oor etlike eeue ontwikkel. Dit word gevind in die meeste regstelsels. Die beginsel dien verskeie oogmerke, waarvan staatsoewereiniteit sekerlik die belangrikste is. State pas die beginselop verskillende maniere toe weens die verskeie bestaansredes vir die beginsel. Regsliteratuur tref 'n onderskeid tussen twee belangrike metodes van interpretasie, naamlik die in abstracto en in concreto benaderings. Terwyl die in abstracto metode op die teoretiese strafbaarheid van die handeling fokus, plaas die in concreto benadering klem op die feitelike, persoonlike en konkrete regsaspekte. Daar is kombinasies van hierdie metodes. Meeste state kan geklassifiseer word volgens die twee benaderings, maar tog pas state hierdie benaderings by hul besondere behoeftes aan. Daar is dus geen uniforme metode van interpretasie in internasionale uitleweringsreg nie. Hierdie tesis poog om te bepaal of die dubbelkriminaliteitsbeginsel 'n reël van gemeenregtelike internasionale reg geword het. Alhoewel meeste wetgewing op die terrein van internasionale en nasionale uitleweringsreg die beginsel van dubbelkriminalitiet insluit, is daar sterk meningsverskilonder regsgeleerdes tov die status van die beinsel. Die gevolgtrekking is dat die beginsel nie 'n algemene reël van die internasionale reg is nie. Ten slotte word daar gekyk of die dubbelkriminaliteitsbeginsel as 'n beginsel van internasionale menseregte geklassifiseer kan word. Alhoewel die beginsel ooreemste met menseregtenorme toon - veral die beskerming van die individu in uitleweringsaangeleenthede - is daar 'n aantal aspekte wat d it van menseregte 0 nderskei. I nternasionale uitleweringsreg en internasionale menseregte deel nie dieselfde ontwikkelingsgeskiedenis nie. Die gevolgtrekking is dus dat die dubbelkriminaliteitsbeginsel nie deel vorm van internasionale menseregte nie.

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45

Grant, James A. "Judging without scales." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:76adb04e-57e1-407a-879b-1a74485bc99a.

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This thesis is about the nature of value incommensurability and its significance for judicial reasoning. It argues that there can be incommensurable values and that this incommensurability can have significant implications for judicial reasoning. I argue that incommensurability gives rise to a range of reasonableness, within which it is reasonable but in a sense also arbitrary to decide either way, and that this range is wider than is suggested by the notion that some options are roughly equal, because even a large improvement to one option may not make it the uniquely correct option. The thesis goes on to consider the effect that the authority of law can have on choices between incommensurable options. Although I argue that the authority of law can sometimes provide a conclusive reason to choose one of two incommensurable options, I also argue that it has limits and may not do so in every case of incommensurability. Moreover, the introduction of an authoritative directive may even give rise to incommensurable options where none previously existed. The thesis then draws out the implications of these claims, first, for human-rights adjudication—where my claim is that ‘balancing’ is appropriate both in the specification of rights and in assessing the justification for their infringement, provided we acknowledge the limits of balancing in cases of incommensurability—and, secondly, for adjudication involving common law reasoning and statutory interpretation. Finally, I suggest that we can distinguish between different ideals of the rule of law, and that the arbitrariness of judicial decisions involving incommensurable options has different implications for those different ideals. The arbitrariness involved in choosing between undefeated reasons may be necessary contrary to one ideal of the rule of law, understood as the rule of authority, but not contrary to an ideal of the rule of law understood as the rule of reason.

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46

Da, Costa Rosa. "Ethics and obligations of justice in international relations: The implications of Rawls's Law of Peoples." Thesis, University of Ottawa (Canada), 1995. http://hdl.handle.net/10393/10521.

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47

Silva, B. Roshan de. "Law, nation and cosmology in Sri Lanka : deconstruction and the failure of closure." Thesis, University of Kent, 1998. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.286032.

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48

Ródenas, Ángeles. "Challenges for Legal Philosophy in the 21st Century." Pontificia Universidad Católica del Perú, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/115910.

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This paper shows a mismatch between a real and pressing demand for a philosophical analysis that allows us to explain the emergence of new phenomena in law, and the limited supply of theoretical tools to satisfy this demand by the traditional model of positivistic science of law. After an initial diagnosis of a mismatch between supply and demand, the resistance of legal positivism to accept practical rationality stands out as a core problem of the traditional model of positivistic science of law and the viability of this way of rationality is defended. The paper concludes with a proposal for the reinvention of the philosophy of law of the 21st century that incorporates new objectives and rethinks its method. En este trabajo se constata un desajuste entre una demanda real y acuciante de un análisis filosófico que permita dar cuenta de la irrupción de nuevos fenómenos en el panorama del derecho y la limitada oferta de herramientas teóricas con que satisfacer esta demanda que aporta el modelo tradicional de ciencia positivista del derecho. Tras el diagnóstico inicial de desajuste entre la oferta y la demanda, se destaca como un problema medular del modelo tradicional de ciencia positivista del derecho su resistencia a asumir una racionalidad de tipo práctico y se defiende la viabilidad de esta forma de pensamiento. El trabajo concluye con una propuesta para la reinvención de la filosofía del derecho del siglo XXI, redefiniendo sus objetivos y replanteando su método.

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Shaw, Julia Jane Anne. "Towards a metaphysical foundation for jurisprudence : a critical exposition of Kant's philosophy of law." Thesis, Lancaster University, 1998. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.268113.

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Hinshelwood, Bradley Alan. "The Metamorphosis of Punishment in the Law of Nations." Thesis, Harvard University, 2015. http://nrs.harvard.edu/urn-3:HUL.InstRepos:17467338.

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This dissertation examines the disappearance of punishment as a justification for interstate war in European political theory, and its rise as an individualized process applicable to what modern-day scholars call “war crimes.” This metamorphosis occurred over the course of roughly a century and a half of debate in natural law theory, initiated by the publication of Hugo Grotius’s De jure belli in 1625. This work touched off two parallel and often closely related debates about the precise scope of natural law in wartime and the relationship of individual subjects to the acts taken by their states or sovereigns. Grotius’s arguments about sovereignty initiated a gradual decline of the notion of collective responsibility for state acts which made the precise content on punitive war and state punishment difficult to define, despite strong theoretical hurdles presented by social contract theories of the state which stressed the ways in which the sovereign’s judgment stood in for—and thus could be interpreted as—the subject’s judgment. While this undermined the prospects for collective punishment through war, it was not until the late 17th and early 18th centuries that scholars began to argue that individualized punishment of enemies who violated certain standards of conduct could be a legitimate feature of war, based on a new conception of natural law which stressed the priority of obligations over rights. The culmination of the tradition came in the work of Emer Vattel, whose Droit de Gens preserved punishment as a potential just cause of war but effectively emptied the category of its content, while fully embracing arguments about personalized punishment for offenses which violated the laws of war. Government

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Tesi sul tema "Law Philosophy"

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