Dissertations / Theses on the topic 'Commonwealth law'

This research exposes to examination and understanding the law governing procurement of construction and engineering works and services. The thesis captures both development of common law and judicial determination of statutory law. It takes the form of published journal articles and conference papers which discuss legal issues relevant to construction procurement and conclude with recommendations for clients and construction project managers on how to better manage the procurement process. The work reveals, inter alia, the extent to which contract law regulates the tendering phase of construction procurement and places the client under an obligation to the tenderer characterised as 'fair dealing' or 'good faith'. Chapter 1 is of an introductory nature. Chapter 2 sets the crime of manslaughter arising out of construction site fatality as a procurement issue. The author notes the UK government's intention to introduce the new offences of reckless killing, killing by gross carelessness and corporate killing. Chapter 3 discusses cases where disaffected parties to the tendering process have made private law challenges of that process seeking compensation for the other party's alleged irregularities. The client is generally obliged in law to treat all tenderers equally and fairly and to refrain from evaluating tenders and awarding contracts other than in accordance with the rules set down in the tender conditions. Chapter 4 addresses the question: do traditional tendering processes encourage, or merely permit, contractor innovation? Several tender codes are reviewed to establish whether these codes provide for, or encourage, innovative proposals from competing bidders. Chapter 5 provides updating case material for the period 1999-2000 which helps to underpin the conclusions and recommendations set out in Chapter 12. Chapter 6 is a criticism of the NJCC's Code of Procedure for Single Stage Selective Tendering and the CIB's Code of Practice for the Selection of Main Contractors. Suggestions are made as to what a new tender code might include in the light of selected decisions of the common law courts. It is argued that a set of 'standard' tender rules should become the terms of a 'tender contract'. Those rules would properly reflect decisions of the courts and would be accepted by all parties to the process as a tender contract document. Chapter 7 discusses how the common law protects the integrity of construction procurement by imposed or assumed contractual obligations. Procurement of subcontract works is also considered. The author concludes that the tendering contract operates between main contractor and subcontractor as it does between owner/ developer and main contractor, and that the 'two contract' analysis provides the best basis for upholding integrity of the bidding process. Chapter 8 sets out advice for quantity surveyors and project managers derived from the decisions of the common law courts. The author argues that practice should be shaped to reflect the obligations assumed by parties in common law so as to avoid claims from aggrieved bidders. In Chapter 9 the focus shifts from private to public law. A Scottish court denied a remedy to the unsuccessful bidder on the grounds that the contract award process was unfair, unreasonable and in breach of natural justice. The author argues that a successful case might have been made out in private law and concludes with recommendations as to how the tender process might be better conducted. Chapter 10 deals with public procurement under the rules of the European Union (EU), noting a particularly important decision by the European Court of Justice that contracting authorities are obliged to treat all tenderers equally and fairly, a duty that parallels that found in common law and discussed in Chapters 2 through 8. Chapter 10 concludes with an article on Rv Portsmouth City Council (1996), reviewing both decisions at first instance and in the English Court of Appeal. Chapter 11 considers the risks of developers and contractors by examining the effectiveness of 'controls' imposed by common law when the usual statutory controls are temporarily withdrawn. It can be seen that the common law has not evolved to protect the interests of neighbours and local residents from the perils and hazards of property development which result in environmental degradation. This chapter concludes with recommendations as to how developer and constructors might minimise their impact on adjacent property owners. Chapter 12 presents a summary of the conclusions drawn from the completed research project and the author's recommendations for further research within the procurement topic.

It is well known that in the early stages of legal development in Commonwealth jurisdictions, when these countries were still colonies of the British Empire, there was uniformity in their laws as the English common law was received by these countries and applied by their judiciaries with little or no modifications. As time passed, with the shift towards independence in these former British colonies, some Commonwealth countries have diverged from the English common law by providing for judicial solutions that are perceived to best fit their individual circumstances, values and needs. In other words, there has been a break up of Commonwealth common law. Whilst there has been much academic discussion on this phenomenon in relation to for example, tort and contract, hardly any has been written on private international law. Accordingly, it is the purpose of this thesis to address the paucity of academic writing on this subject matter by undertaking a comparative study of two areas of private international law, namely the doctrine of forum non conveniens and tort choice of law in Australia, Canada and Singapore, with the relevant English common law positions as the key reference point. Specifically, this thesis began by establishing the existence as well as the nature and extent of the break up of forum non conveniens and tort choice of law in our selected Commonwealth jurisdictions. It is then argued that one reason for this phenomenon is that there are differences in the judicial treatment of policies, concepts and other wider considerations relevant to these areas of private international law in these countries. Subsequently, the issue of how these jurisdictions should respond to this phenomenon was examined and we concluded that the prospects for the harmonisation of jurisdictional and tort choice of law rules at the global, regional and Commonwealth level has been largely unpromising. Accordingly, it is argued that the way forward is for our selected Commonwealth jurisdictions to develop their own rules on these areas of private international law with their own social, economic and political circumstances in mind.

The thesis surveys and analyses Commonwealth Bills of Rights. It examines the content of these Bills of Rights and considers their origin and political implications. The first chapter reviews the political history of Bills of Rights generally. This is followed by a chapter dealing with the initiation and introduction of Commonwealth Bills of Rights. Particular attention is given to the attitudes and influences of British officials and advisors. The third chapter considers the general forms of Commonwealth Bills of Rights and the ways in which such guarantees are qualified. The next three chapters examine the substance of the particular guarantees and note judicial cases that are of particular interest. In the seventh chapter some of the political implications of these Bills of Rights are considered. The eighth chapter concerns judicial attitudes toward the enforcement of a Bill of Rights. This is followed by concluding remarks.

Human trafficking has increasingly been referred to in academic circles as ‘modern slavery’. It thrives in conditions of poverty, prejudice, inequality and discrimination, and has a deleterious impact on its victims. Its perpetrators come from all walks of life, and are actively involved in myriad forms of exploitation, which generate billions in profits on an annual basis. Since the passage of the Trafficking Protocol in 2001, there has been a marked increase in anti-trafficking policy and legislation at the international, regional and domestic levels. Notwithstanding this, however, the effectiveness of these measures remains a hotly contentious issue. It is against this backdrop that this thesis has been conceptualised; the overarching aim being to critically assess the existing law and practice on human trafficking at the European and Commonwealth Caribbean levels, and to explore and evaluate possibilities for an enhanced regulatory framework. To achieve this aim, several objectives are actively pursued over the course of nine chapters. The first objective involves a deconstruction and critical evaluation of the various 'hegemonic assumptions' that underlie the conventional criminal justice and human rights approaches to human trafficking. The second involves a critical examination of the existing law and practice on human trafficking at the European and Commonwealth Caribbean levels from a comparative socio-legal perspective. The main argument advanced is that, at present, there is a ‘disconnect’ between anti-trafficking law and practice, which has an adverse impact on the prevention of human trafficking, the prosecution of traffickers and the protection of trafficked victims. The final objective involves an exploration of a non-exhaustive list of possibilities for reform that are aimed at ameliorating this ‘disconnect’. The methodological approaches of the thesis to its research question involve doctrinal analyses, comparative analyses, as well as socio-legal analyses.

This thesis examines how power was re-articulated in light of the royal supremacy during the early stages of the English Reformation. It argues that key words and concepts, particularly those involving law, counsel, and commonwealth, formed the basis of political participation during this period. These concepts were invoked with the aim of influencing the king or his ministers, of drawing attention to problems the kingdom faced, or of expressing a political ideal. This thesis demonstrates that these languages of power were present in a wide variety of contexts, appearing not only in official documents such as laws and royal proclamations, but also in manuscript texts, printed books, sermons, complaints, and other texts directed at king and counsellors alike. The prose dialogue and the medium of translation were employed in order to express political concerns. This thesis shows that political languages were available to a much wider range of participants than has been previously acknowledged. Part One focuses on the period c. 1528-36, investigating the role of languages of power during the period encompassing the Reformation Parliament. The legislation passed during this Parliament re-articulated notions of the realm’s social order, creating a body politic that encompassed temporal and spiritual members of the realm alike and positioning the king as the head of that body. Writers and theorists examined legal changes by invoking the commonwealth, describing the social hierarchy as an organic body politic, and using the theme of counsel to acknowledge the king’s imperial authority. Part Two examines two later Reformation contexts: that of the warfare of the 1540s and Edward VI’s minority kingship. Languages of power continued to be accessible to a wide range of participants across the social hierarchy in these later periods. This thesis demonstrates that, far from being limited to the political nation or the centre of the kingdom’s political life, a complex political idiom was available to a broad spectrum of the social order. These languages were present in a larger number of rhetorical contexts than has been often acknowledged.

Thesis (LLM )--Stellenbosch University, 2011.
ENGLISH ABSTRACT: In the field of administrative law, the judiciary has traditionally exercised control over the administrative actions of the executive through judicial review. However, judicial review is neither the most effective nor the most efficient primary control mechanism for systemic administrative improvement. In a country faced with a task of =transformative constitutionalism‘, and hindered with scarce resources, there is good cause to limit judicial intervention as the first response to administrative disputes. The major theme of this thesis is to investigate the feasibility of administrative tribunal reform in South Africa, using two other commonwealth countries, Australia and England, as a basis for comparison. Australia and England have been chosen for comparison because they share similar administrative law traditions and they can provide working models of coherent tribunal structures. The Australian tribunal system is well-established and consists of tribunals which fall under the control of the executive, while tribunals in England have recently undergone a significant transformation, and are now part of the independent judiciary. The South African government currently spends, indeed wastes, a significant amount of money on administrative law litigation. Due to the limitations of judicial review, even after the high costs of litigation and the long duration of court proceedings, the results achieved may still be unsatisfactory. Furthermore, judicial review is unsuited to giving effect to systemic administrative change and the improvement of initial decision-making. Australia and England have begun to move away from the traditional court model for the resolution of administrative disputes. Both have indicated a preference for the important role of tribunals in the administration of disputes. Tribunals have been shown to offer the advantage of being speedier, cheaper, more efficient, more participatory and more accessible than traditional courts, which contributes to tribunals being a more available resource for lay people or people without sophisticated legal knowledge, and provides wider access to remedies than courts. The English and Australian models indicate a few important trends which need to be applied universally to ensure a sustained tribunal reform and a system which provides a higher level of administrative redress than the over-burdened and institutionally inept courts currently do. These include co-operation among government departments and tribunals; open and accountable systemic change; the need for supervision and evaluation of the whole of administrative law by an independent and competent body; and ultimately a focus on the needs of users of state services. At the same time, there are arguments against administrative tribunal reform. These include the costs of reform; the ways to establish tribunals; and the level of independence shown by the tribunals. These arguments are especially relevant in the South African context, where the government faces huge social problems and a scarcity of resources. However, after an analysis of the valuable characteristics of tribunals and the role that they serve in the day to day administration of justice, it is difficult to see how these objections to tribunals can outweigh their potential importance in the administrative justice system. The need for sustained systematic reform in South Africa is one that cannot be ignored. Tribunals offer a valuable alternative to judicial review for the resolution of administrative disputes. Furthermore, the tribunal systems of Australia and England demonstrate how the effective creation and continued use of comprehensive tribunal structures contributes firstly to cost reduction and secondly to ease the administrative burden on courts who are not suited to cure large-scale administrative error.
AFRIKAANSE OPSOMMING: In die administratiefreg oefen die regsprekende gesag tradisioneel beheer uit oor die uitvoerende gesag deur middel van geregtelike hersiening. Geregtelike hersiening is egter nie die mees doeltreffende of effektiewe primêre beheermeganisme om sistemiese administratiewe verbetering teweeg te bring nie. In 'n land met die uitdagings van 'transformatiewe konstitusionalisme‘ en skaars hulpbronne, kan 'n goeie argument gevoer word dat geregtelike inmenging as die eerste antwoord op administratiewe dispute beperk moet word. Die deurlopende tema van hierdie tesis is 'n ondersoek na die lewensvatbaarheid van hervorming van administratiewe tribunale in Suid-Afrika, in vergelyking met die posisie in Australië en Engeland, waarvan beide ook, tesame met Suid-Afrika, deel vorm van die Statebond. Hierdie lande is gekies vir regsvergelykende studie aangesien hulle 'n administratiefregtelike tradisie met Suid-Afrika deel en beide werkende modelle van duidelike tribunale strukture daarstel. Die Australiese tribunale stelsel is goed gevestig en bestaan uit tribunale onder die beheer van die uitvoerende gesag, terwyl die tribunale stelsel in Engeland onlangs 'n beduidende hervorming ondergaan het en nou deel van die onafhanklike regsprekende gesag is. Die Suid-Afrikaanse regering mors aansienlike hoeveelhede geld op administratiefregtelike litigasie. Selfs na hoë koste en lang vertragings van litigasie mag die resultate steeds onbevredigend wees as gevolg van die beperkings inherent aan geregtelike hersiening. Tesame met hierdie oorwegings is geregtelike hersiening ook nie gerig op sistemiese administratiewe verandering en verbetering van aanvanklike besluitneming nie. Australië en Engeland het onlangs begin wegbeweeg van die tradisionele hof-gebaseerde model vir die oplossing van administratiewe dispute. Beide toon 'n voorkeur vir die belangrike rol wat tribunale in die administrasie van dispute kan speel Tribunale bied die bewese voordele om vinniger, goedkoper, meer doeltreffend, meer deelnemend en meer toeganklik te wees as tradisionele howe, sodat tribunale 'n meer beskikbare hulpbron is vir leke, oftewel, persone sonder gesofistikeerde regskennis en dus beter toegang tot remedies as tradisionele howe verskaf. Die Engelse en Australiese modelle dui op enkele belangrike tendense wat universeel toegepas moet word om volgehoue tribunale hervorming te verseker en om =n stelsel te skep wat 'n hoër vlak van administratiewe geregtigheid daarstel as wat oorlaaide en institusioneel onbekwame howe kan. Dit verwys bepaald na samewerking tussen staatsdepartemente en tibunale; deursigtige en verantwoordbare sistemiese veranderinge; die behoefte aan toesighouding en evaluasie van die hele administratiefreg deur 'n onafhanklike, bevoegde liggaam; en uiteindelik 'n fokus op die behoeftes van die gebruikers van staatsdienste. Daar is egter terselfdertyd ook argumente teen administratiewe tribunale hervorming. Hierdie argumente sluit in die koste van hervorming; die wyses waarop tribunale gevestig word; en die vlak van onafhanklikheid voorgehou deur tribunale. Hierdie argumente is veral relevant in die Suid-Afrikaanse konteks waar die regering voor groot sosiale probleme te staan kom en daarby ingesluit, 'n tekort aan hulpbronne ook moet hanteer. Daarenteen is dit moeilik om in te sien hoe enige teenkanting en teenargumente met betrekking tot die vestiging van administratiewe tribunale swaarder kan weeg as die potensiële belang van sulke tribunale in die administratiewe geregtigheidstelsel, veral nadat 'n analise van die waardevolle karaktereienskappe van tribunale en die rol wat hulle speel in die dag-tot-dag administrasie van geregtigheid onderneem is. Die behoefte aan volhoubare sistemiese hervorming in Suid-Afrika kan nie geïgnoreer word nie. Tribunale bied 'n waardevolle alternatief tot geregtelike hersiening met die oog op die oplossing van administratiewe dispute. Tesame hiermee demonstreer die tribunale stelsels in Australië en Engeland hoe die doeltreffende vestiging en deurlopende gebruik van omvattende tribunale bydra, eerstens om kostes verbonde aan die oplossing van administratiewe dispute te verlaag en tweedens, om die administratiewe las op die howe, wat nie aangelê is daarvoor om grootskaalse administratiewe foute reg te stel nie, te verlig.

Archival legislation in several Commonwealth countries provides the national archives with the statutory mandate to manage and preserve government records. The archival literature recognizes that archival legislation lags behind advances in technology and that it is often not robust enough to support the management and preservation of records. However, there is a lack of empirical research on how archival legislation is operationalized within specific socio-political, cultural, and juridical contexts, and on the perceptions of archivists and records managers about such operationalization. This dissertation addresses how the operationalization of archival legislation in the UK, Canada, and Singapore influences its effectiveness in the implementation of records management programs. The study takes into account the common law system based on an intergovernmental organization, the Commonwealth, as well as the different socio-political and cultural contexts of the countries. To explore the shared and varying views that archivists and records managers have on archival legislation, the study largely employs interpretivist perspectives and hermeneutic principles to examine interviews conducted with archivists and records managers, selected legislation, normative sources, and other documentary sources related to the enactment of archival legislation. The findings of this research suggest that archival legislation operates in the context of a patchwork constituted by other records-related legislation and normative sources, and that there are complexities involved in making amendments to such legislation. There are also organizational culture issues that stem from the institutional relationships between the national archives and government departments and the individual-level relationships of archivists and records managers. These issues can enable and constrain the delivery of a records management program. Additionally, the joint responsibilities in recordkeeping and record preservation held by the national archives and other departments that have an interest in information management result in a collaboration constraint and have contributed to a perceived lack of leadership on the part of the national archives in records management. The study concludes with recommendations for the decoupling of archival national institutions from national archival legislation, and for a comprehensive regulation of all aspects of records creation, maintenance, and preservation in the public sector.
Arts, Faculty of
Library, Archival and Information Studies (SLAIS), School of
Graduate

This dissertation is based on ethno-historic fieldwork in the Commonwealth of the Northern Mariana Islands (CNMI). In the CNMI there is a complex interaction of customary law within the framework of an American legal system. By studying land disputes in a historical context, I examine how custom is represented, reconfigured, and constructed through law and the dispute process. Law reflects and reproduces ideology through its relationship with the state while at the local level of the case one can analyze the specific ways individuals access, affect, and are affected by the legal system. Courts are a site for the production of meanings that includes state-level forces, such as the law and procedural rules, as well as the impact of individuals, such as attorneys, litigants, and witnesses.

The role and function of school psychologists and changes in such since Public Law 94-142 have been the subject of research by numerous authors. However, more speculation than empirical data exists on the topic. Although speculation in the profession has suggested about equally that the role and function of the school psychologist has changed and has not changed since Public Law 94-142, studies have failed to substantiate such speculation one way or the other. The population of school psychologists in Virginia was chosen for the present study because of existing research using this population conducted by Murray in 1975, before Public Law 94-142 came into full effect. The study was designed to answer the following eight research questions: (1) What expectations do school psychologists have for attributes? (2) What is the relative degree of importance that school psychologists attach to participations in various professional activities? (3) What is the relative degree of importance that school psychologists attach to the various functions of their present position? (4) What is the relative frequency with which school psychologists perform the various functions of their present position? (5) What is the relative degree of importance that school psychologists attach to the various functions of their present position compared to the relative frequency with which they actually perform those same functions? (6) What are school psychologists' expectations for their performances of specific functions? (7) What is the influence of selected demographic variables on school psychologists' expectations for their performances of specific functions? (8) What is the degree of consensus between the results obtained in this study and those obtained in Murray’s study relative to the areas outlined above? Data were collected via mailed surveys using a personal data form, to gain demographic information, and a modified form of the questionnaire used by Murray (1975). Three hundred nineteen members of the Virginia Association of School Psychologists were mailed survey materials, and a response rate of 80.5% was obtained. Of this total, one hundred seventy-six met the requirements necessary to be included in the data analysis. Demographic information was obtained and frequency counts of modified questionnaire responses revealed information relative to school psychologists’ expectations for attributes, participations in professional activities, and performances of functions, as well as importance attached to, and frequency of performance of, various functions. One-way ANOVA procedures were used to determine the relationship between overall expectations for performances of various functions scores and demographic variables. No significant differences were found among demographic variables. Chi-square procedures were used to compare the present expectations for role and function with those of Murray (1975). Results indicated that many specific aspects of the Virginia school psychologist's expectations for role and function have changed since 1975 and new roles have emerged. Changes were seen in expectations for attributes, participation in professional activities, and performance of various functions yet these specific changes in expectations have not led to changes in importance attached to, or actual frequency of performance of, functions. Several implications were drawn from the results of the present study leading to recommendations for school psychologists and trainers, and employers of school psychologists, as well as professional school psychology organizations. The recommendations focused on training for school psychologists and topics for further research.
Ed. D.
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This thesis examines the constitutional position in relation to those geographical areas over which the Commonwealth has sole power. These are the Territories, and Commonwealth places (over which, however, the States may retain some vestigial power). The thesis seeks to give a comprehensive account of the constitutional law concerning these heads of power. The thesis traces the tortuous history of the case law on the Territories, with its many instances of inconsistent decisions and dicta. In the words of a High Court Judge, Sir Douglas Menzies, the cases have "not resulted in a coherent body of doctrine". The problems have been particularly acute in regard to the exercise of judicial power, and they are compounded by the silence of the Constitution on some major issues concerning the Territories, such as the relationship between the 'Territories' power and the Constitution as a whole. The thesis' main contention is that, contrary to predominant doctrine, the constitutional position of the Territories and of Commonwealth places is federal, not 'disparate'. In this connection, several tenets are advanced: first, that the Constitution must be interpreted as a whole�that is, as a single instrument; secondly, that the Territories are an integral part of Australia, and their inhabitants, while not enjoying all the constitutional benefits of State residents, are full members of the Australian community; and thirdly, that there is no constitutional distinction to be drawn between different classes of Territory�thus, despite some contrary suggestions, there is no distinction between 'internal' and 'external' Territories or between Territories acquired from the States and Territories otherwise acquired. The thesis explores the particular difficulties, notably in the judicial sphere, that arise from the relevant case law, and it critically examines the cases against the text of the Constitution, as well as against the yardstick of those tenets. With regard to the Territories, the thesis analyses the constitutional topics of executive power and self-government. It considers particular issues concerning each of the three self-governing Territories, including the special status of the Australian Capital Territory as the federal "seat of government". In addition, the thesis looks at the constitutional position in the United States concerning Territories, federal enclaves and the American seat of government (the District of Columbia). The thesis draws a comparison between the American position and the corresponding position in Australia, and it critically considers the judicial interpretation, in both countries, of the constitutional grant to the federal legislature of exclusive, or sole, power over such geographical areas. This process assists an evaluation of the Australian position. The thesis concludes that, in some respects, the Australian case law has gone seriously astray, especially in treating the 'Territories' power as more or less separate from the rest of the Constitution. This judicial approach has led to a convoluted and confusing situation. Despite a degree of amelioration as a result of some more recent cases, the corrective process is by no means complete. The courts are hampered in their development of a "coherent body of doctrine" by the random way in which cases come before them, and it is unlikely that the position can be fully retrieved solely by judicial decisions. The thesis therefore proposes various reforms, and it sets out, in an appendix, proposed amendments of the Constitution. In addition to expounding and criticising the case law on the constitutional topics under discussion, the thesis reviews and, where appropriate, cites from the relevant legal literature. The thesis considers the Australian case law as decided down to the end of 2004.

My thesis is that legislation, and particularly legislation which influences fundamental social behaviour, reflects the environment in which it is developed. It inevitably reflects the compromises forced by interest groups and others during its creation and passage through the parliament It is flawed because of the process. I demonstrate this in an emergence study of the Commonwealth Sex Discrimination Act 1984 and an implementation study of five exemptions contained in it. The legislation is contrasted with legislation in force overseas. The analysis is done with reference to relevant jurisprudence including feminist jurisprudence, realism and critical legal theory.

This study investigated the presence and content of school policies used by Virginia school divisions to address issues arising from educators' use of social media. The study also explored Virginia school divisions' policy implementation practices and resolutions for educators' social media use issues. Survey response analysis and policy review are combined to define: 1) Virginia school divisions' experiences with educators' inappropriate use of social media, 2) how Virginia school divisions are addressing educators' social media dilemmas and 3) the characteristics of school policies used to address social media issues in Virginia. The findings indicate that while 90% of respondents are concerned about the dilemmas created by educator social media use, 89% report having effective policies in place to address these issues. Responding Virginia school divisions are using Acceptable Use Policies (98%), Code of Conduct policies (54%) and Social Media policies (32%) to address educators' social media issues. The most common reported infractions are unprofessional comments. Most teachers sanctioned for online conduct are disciplined through reprimand (written and verbal) by school system administrators.
EDD

This is a comparative study of the leadership role of the Chief Justice as head of the judiciary through a decade of change, up to 2009, in South Africa, Ghana and Kenya. It draws on a conceptual framework developed from Burns’s theory of transformational leadership and the “dynamics of the leadership process”, and other scholarship on leadership ethics. The constitutional, legal and political structures surrounding the office of Chief Justice are analysed alongside empirical data gathered from interviews. It addresses three main questions. How do we understand the leadership role of the Chief Justice in Africa? How is this role evolving? What consequences does the distinction between “judicial” and “administrative” functions have for leadership in the judiciary? The study finds, first, that the leadership role of the Chief Justice includes intellectual leadership, administrative leadership, and acting as the representative of the judiciary. Second, the role of the Chief Justice is shifting from one of headship to one of leadership: Chief Justices are expected to be the visible, accountable leaders of the third arm of government. Third, recognising the Chief Justice as leader of the third arm of government raises questions about the usefulness of retaining the distinction between judicial and administrative functions to divide responsibility for court administration between the judiciary and executive. For Chief Justices to lead effectively, they must be free to make decisions on all matters relating to the operation of the judiciary. This need not require immersion in the daily minutiae of court administration. Instead, practices in South Africa and Ghana suggest that leadership could involve collaborating with, delegating to and consulting relevant “constituents” of the Chief Justice’s leadership. This would be consistent with a transformational leadership approach, which it is here argued is the most appropriate form of leadership for the judiciary.

In the context of a perceived globalisation of human rights, this thesis considers whether constitutional rights to equality and non-discrimination apply to polygynous customary marriages in Commonwealth Africa from a legislative perspective. In other words, I examine whether there is a correlation between constitutional protection of rights and legislation, sensitive to the human rights of women in polygynous customary marriages. It is shown that at a constitutional level, there is often a strong indication that human rights to equality and non-discrimination apply to customary laws, including customary institutions of marriage. This, however, often does not translate to a statutory level, resulting in marriage laws that largely side-line and ignore the possibility of polygyny in a customary marriage and the potential for human rights violations therein. I analyze the discursive mechanisms that facilitate the contradiction that arises when constitutional commitments to protect the rights of women in polygynous marriages are not met at a legislative level. I argue that practices of 'silence' and 'omission' are used to perpetuate the myth that monogamy is the default position of all marriages governed by statute. This effectively constructs polygynous marriages as an aberration to the norm, and further renders invisible the parties in polygynous customary marriages. In failing to provide statutory guidance for the complexities that may arise in polygynous marriages, I argue that women in polygynous marriages are discriminated against in comparison to women in monogamous relationships.

Thesis (Ph.D.) -- La Trobe University, 2006.
Research. "A thesis submitted in total fulfilment of the requirements for the degree of Doctor of Philosophy, La Trobe Law, Faculty of Law and Management, La Trobe University, Bundoora, Victoria". Includes bibliographical references (leaves 318-338). Also available via the World Wide Web.

"Montesquieu, in L'Esprit des Lois, 1748, divided the functions of state into: the legislative power, the executive power, and the power of judging. Indeed, three constitutional organs have invariably dominated state power. These are: the executive, the leigslative and the judiciary. According to Montesquieu, the state is said to be at 'equilibrium' when the three organs are independent of each other, with each carrying out its functions without interference. Ideally, the legislative organ ought to make laws, the executive to implement them, and the judiciary to adjudicate over disputes arising out of the day-to-day operations of the state. This attempt at dispersing state power is not arbitrary. It has got ends. One cardinal end in this regrad is the protection of fundamental human rights. It has been argued that where the three organs of state are allowed operatational autonomy, individuals stand to enjoy relatively profound liberty. Where state functions are entrusted with one person or organ, the tyranny of that person or organ is certain to overwhelm the realisation of fundamental freedoms and liberties. ... Both Montesquieu and Lock had tremendous faith in the tripartite government structure in so far as the protection of liberties was concerned. Informed by this philosophy, most democratic constitutions have weaved state power in almost similar terms envisioned by Montesquieu. Thus far, the 1787 Constitution of the United States of America (USA) could be ranked as one with the clearest distinction of state functions. Contemporary practice, however, appears to be in favour of complementing these traditional state organs, a sign, perhaps, that the conventional three organs of state per se have increasingly proved inadequate; at least in the sphere of human rights protection. There is a move, or rather, wave towards the establishment of independent national human rights institutions (NHRIs) to reinforce the bulwark of human rights protection mechanisms at state level, and the wave, arguably, is most pronounced in Africa. ... The current investigation will be completed in four distinct chapters. The current chapter serves well to introduce the study. The second chapter constitutes a comprehensive study of the conceptual foundations of national human rights institutions (NHRIs). The essence, structure and nature of NHRIs is also explored. The third chapter proposes to analyse the doctrine of separation of powers from a philosophical and later, from a practical point of view as it manifests itself in the Commonwealth tradition. The tripartite government configuration is discussed with the ramification of NHRIs in mind. It is instructive that without assessing the parent concept (the rule of law) a discussion on separation of powers remains orphaned. The fourth chapter shall first allude to the new challenges to human rights enforcement. It shall then discuss how these challenges and the development of NHRIs cry for a new thinking on the original tripartite system. The final section is an attempt at supplying a panacea to the challenges accentuated by the preceding part." -- Introduction.
Prepared under the supervision of Prof. Nii Ashie Kotey at the Faculty of Law, University of Ghana, Legon
LLM (Human Rights and Democratisation in Africa) -- University of Pretoria, 2006.
http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html
Centre for Human Rights
LLM

In August 2000, Justice O�Loughlin of the Federal Court of Australia handed down the decision in Cubillo v Commonwealth in which Lorna Cubillo and Peter Gunner took action against the Commonwealth Government, arguing that it was vicariously liable for their removal from their families and communities as children and subsequent detentions in the Northern Territory during the 1940s and 1950s. The case is the landmark decision in relation to legal action taken by members of the Stolen Generations. Using the decision in Cubillo as a key site of contestation, my thesis provides a critique of legal positivism as the dominant jurisprudential discourse operating within the Anglo-Australian legal system. I argue that the function of legal positivism as the principal paradigm and source of authority for the decision serves to ensure that the debate concerning reconciliation in Australia operates rhetorically to maintain whiteness at the centre of political and discursive power. Specifically concerned with the performative function of legal discourse, the thesis is an interrogation of the interface of law and language, of rhetoric, and the semiotics of legal discourse. The dominant theory of evidence law is a rationalist and empiricist epistemology in which oral testimony and documentary evidence are regarded as mediating the relationship between proof and truth. I argue that by attributing primacy to principles of rationality, objectivity and narrative coherence, and by privileging that which is visually represented, the decision serves an ideological purpose which diminishes the significance of race in the construction of knowledge. Legal positivism identifies the knowing subject and the object of knowledge as discrete entities. However, I argue that in Cubillo, Justice O�Loughlin inscribes himself into the text of the judgment and in doing so, reveals the way in which textual and corporeal specificities undermine the pretence of objective judgment and therefore the source of judicial authority.

My dissertation project seeks to understand when and how do national judges play an active and significant role in how international legal orders do or do not affect their polities. Specifically, I look at when and how British judges play a role in how European Union law through the European Court of Justice and European human rights law through the European Court of Human Rights affect the British polity. These international legal orders contain both vertical and horizontal aspects. Vertical aspects include the highest court and its judges defined by the treaty, which operates as the international, hierarchical authority on the treaty and is tasked with ensuring the compliance of the member states of the treaty. Horizontal aspects include member state courts and judges who interact with other member state courts and judges as equals voluntarily to share an understanding of the law. Britain is interesting because it may seem like a counterintuitive place to find such dynamics. Britain has a strong resistance to international authority, a deeply entrenched idea of Parliamentary Supremacy, and a dualist legal tradition where Parliament translates international law into domestic law prior to its use by the courts, which contributes to a lack of expectation of British judges engaging in international judicial activism, making Britain a hard case. In this context, we should expect that international law only matters to the extent that domestic actors are forced to incorporate it by a strong international legal order with vertical supremacy and unambiguous authority. To the contrary, my dissertation shows that British judges are quite active in many international legal orders in ways that do not merely reflect the degree of established vertical legal authority. Through dynamics that are quite autonomous from British politicians' difficult interactions with international authority, British judges play a very active role in managing and integrating international law into British politics. To see these dynamics and understand how international law has affected British politics, we must pay special attention to horizontal legal integration. Horizontal legal integration occurs when judges intentionally and selectively borrow legal concepts and precedents from other national or international jurisdictions.

Cette recherche s’attache à l’étude d’une institution britannique, à son rôle et son organisation depuis la fusion, en 1968, du Commonwealth Office et du Foreign Office, jusqu’à l’année 1985.Il s’agit ainsi de voir comment le Foreign and Commonwealth Office (FCO) fonctionne et comment il a su évoluer au gré du temps, du changement de la place de la Grande-Bretagne dans le monde, et des conflits internationaux. Ainsi, on peut se demander quelles influences le contexte a eu sur l’institution en elle-même. Dès lors, une place particulière est accordée à l’Europe, la ‘relation spéciale’ avec les États-Unis et la décolonisation.La politique étrangère britannique semble aujourd’hui être principalement dans les mains du pouvoir politique : du ministre des Affaires étrangères (Foreign Secretary), et du Premier ministre. Quelle place le FCO occupe-t-il alors, et quelles relations entretient-il avec le pouvoir politique ?Il s’agit ainsi de considérer la place du FCO au sein des différents acteurs internes et externes de la politique étrangère britannique en analysant trois cas concrets : une réorganisation interne de l’institution (la fusion de 1968), une gestion de crise (l’indépendance retardée de la Guyane britannique, 1953-1966), et une négociation d’accord en temps de paix (l’échec des négociations de la Convention des Nations unies sur le droit de la mer, 1973-1982).Ce travail de recherche tente ainsi d’offrir une interprétation allant au-delà du fonctionnement interne de l’institution. Il s’agit de mettre en relation le Foreign and Commonwealth Office et le pouvoir politique, et ainsi d’étudier les pouvoirs et influences du FCO tout en s’attachant à des périodes clés à l’orée de changements
This research work is devoted to the study of a key British institution, its function and its organization, from the merger of the Commonwealth Office and the Foreign Office in 1968, until 1985.Of particular interest is the way the changing role of Britain in the world and international conflicts bear upon the functioning and the evolution of the FCO. The point is to assess to what extent the context influences the institution itself.British foreign policy seems to be mostly determined by the Foreign Secretary and the Prime Minister. It is therefore well worth gaging what the function of the FCO is, and its relationship with the holders of political power.The role of the FCO as one of the internal and external agents of British foreign policy is assessed here, through three cases: the internal reorganization of the service in 1968, the management of a crisis – the postponements of independence for Guiana from 1953 to 1966, and the failure of a negotiation in peacetime – the United Nations Convention on the Law of the Sea from 1973 to 1982.Beyond the internal functioning of the institution, this research work strives to offer an interpretation of the changes. The relationship between the FCO and the holders of political power, the real power and influence of the FCO are under consideration, in particular during key moments of particular significance for the institution

Are mutual funds in securities and income taxes a suitable alternative for investment? Has the attempt to simplify the system of income taxes had an adverse impact on taxpayers?Throughout the following article, the author will answer the questions noted above.Therefore, he stresses the importance of protecting the taxpayers, so that they will not be affected by the tax regime. He also notes the necessity of this to happen in order forthe mutual funds to stay as a ideal vehicle for investment.
¿Los fondos mutuos de inversión en valores e Impuesto a la Renta son, acaso, una alternativa idónea para la inversión? ¿El intento desimplificar el régimen del Impuesto a la Renta ha tenido consecuencias perjudiciales para los contribuyentes? A lo largo del siguiente artículo, el autor remarca la importancia de proteger a los contribuyentes, de modo que éstos no se vean perjudicados por el régimen aplicable. De ello depende que los fondos mutuos sigan siendo un vehículo idóneo para la inversión.

Thesis (M.S.)--Worcester Polytechnic Institute.
Keywords: design-build; alternative project delivery methods; filed sub-bid; legislation; Massachusetts General Laws. Includes bibliographical references (p. 77-81).

The subject of this research is lay adjudication reform in the transitional criminal justice systems of the Commonwealth of Independent States (CIS). The study considered the existing lay adjudication systems of Belarus, Russia, Tajikistan, Ukraine and Uzbekistan as well as proposals for the introduction of lay adjudication in such CIS jurisdictions as Azerbaijan, Georgia, Kazakhstan, Kyrgyzstan and Ukraine. On a theoretical level the study analysed the relationship between lay adjudication and the transitional process taking place in the criminal justice systems of the CIS. In practical terms, the thesis proposed a conceptual framework for lay adjudication reform in the transitional criminal justice systems of the CIS and an optimal model of lay adjudication for such systems. Part One of the thesis identified the main models of lay adjudication that can be used for lay adjudication reforms and provided an analysis of the historical, political and social context of lay adjudication reforms in CIS jurisdictions. It was concluded that lay adjudication reforms in the CIS jurisdictions may have two outcomes: 'domestication' of lay adjudicators by the post-Soviet criminal justice culture depriving lay adjUdicators of independence and impartiality; and the reshaping of the current criminal justice systems by making them more fair, accountable and democratic. It was argued that the second s~enario would only be possible if the government ensured the independence and impartiality of lay adjudicators by enacting appropriate legislative safeguards. Part Two of the thesis contained proposals for such safeguards with respect to a number of issues: the scope of lay adjudication; selection of lay adjudicators; trial process and rules of evidence; deliberation of the court, verdict rules, sentencing, and finally appellate review of the verdicts.

Over the last few decades, there has been a significant increase in the political and public acceptance of gay men and lesbians. However, this trend of acceptance is not a global phenomenon. Currently over 70 countries still criminalise private consensual same-sex intimacy, among which are 11 of the 12 independent Commonwealth Caribbean states. It should be noted that the anti-gay laws of the Caribbean are rarely used to police consensual private sexual activities. Thus, if private same-sex conduct is rarely penalised, why keep the laws in place, especially in the age where such bans are considered a violation of basic human rights? Many policy makers in the region have cited public opinions about homosexuality as a significant barrier to law reform. However, while a common view is that these laws are anchored by public support, very few studies have emerged to test whether the attitudes and behaviours of the general population are in line with this view. Against this backdrop, this thesis analyses attitudes towards lesbians and gay men and their legal rights in the Commonwealth Caribbean. The thesis begins with an analysis of support for the anti-gay laws in Barbados, Guyana and Trinidad and Tobago. The analysis revealed that a majority of the sample supported the maintenance and enforcement of the laws, but did not want same-sex couples to be penalised for having sex in private. This suggests that attitudes may not be as stark as policy makers suggest. The descriptive statistics also show that a significant share of individuals think that the laws (1) reflect moral standards; (2) stop the spread of homosexuality; (3) are important from a public health perspective, and (4) protect young people from abuse. Support for the laws are thus related to beliefs that homosexuality is a 'threat' to the fabric of society. The empirical analysis of support for the laws revealed that religiousness, interpersonal contact and beliefs about the origin of homosexuality were the most reliable predictors of public support. However, age and education were only statistically significant in a few models, and there was no evidence that attitudes varied across religious denominations. This is a contrast to the findings of studies in the West. It was hypothesised that macro-level factors - such as the large share of Evangelicals, anti-gay laws and level of socioeconomic development - could be exerting an influence on attitudes that is stronger than that of these personal characteristics. As such, the study conducted a cross-national analysis of attitudes towards same-sex marriage in 28 countries in the Americas, 6 of which were members of the Commonwealth Caribbean. In general, countries with higher levels of development, smaller shares of Evangelicals and more liberal laws on homosexuality were more approving of same-sex marriage. The results also suggest that the impact of age and/or religion is less prominent in countries with restrictions on same-sex intimacy, lower levels of development and a strong Evangelical presence, confirming the hypothesis that contextual factors could mitigate the impact of some of the individual-level variables. Finally, to get a nuanced view of anti-gay prejudice in the region, a thematic analysis of anti-gay speech in dancehall and reggae - music originating from Jamaica but popular in the region - was presented. The thematic analysis revealed that homosexuality is presented as 'sinful', a 'violation of gendered norms', 'unnatural', a 'threat to society' and a 'foreign lifestyle'. The presentation of homosexuality as a 'foreign' lifestyle suggests that anti-gay prejudice could be related to fears of neo-imperialism and could be a means of rejecting ideological intrusions from the West. This is not surprising, as currently, the fight for the advancement of gay rights is being headed by activists in the West. Based on the thematic analysis, efforts to remove the anti-gay laws should be (or at least appear to be) home-grown to limit public backlash.

In terms of the Constitution every person has the right to freedom and security of the person. This includes the right to be free from all forms of violence from either public or private sources. The state is charged with the duty to protect the individual from such harm. While the Constitution refers to the protection of victims of crime in broad and general terms without indicating how these rights should be protected, it makes meticulous and detailed provision for the rights of arrested, detained and accused persons. This leads to the popular belief that the Constitution protects the criminal and not the victim, engendering public dissatisfaction with the status quo, which is amplified by the fact that South Africa’s current legal dispensation for victims of crime does not embody the requirements of ubuntu and African customary law, which the Constitution declares to be binding on South African courts. This study analyses the means that exist in South African law for the victim of crime to obtain redress for criminal acts and proposes effective avenues through which victims can obtain redress, should the existing machinery prove to be inadequate. The term restitution is used to indicate recompense obtained from the perpetrator, while the term compensation refers to recompense obtained from the state. A comparative study is conducted to ascertain how the legal position of victims of crime in South Africa compares with that of victims of crime in Great Britain, India and New Zealand, respectively. South Africa does not have a state-funded victim compensation scheme such as those which exist in most developed countries. The respective proposals of the South African Law Commission for a victim compensation scheme and revised legislation to deal with offender/victim restitution are considered critically, inter alia, in the light of the findings of the comparative study. Proposals are made regarding changes to the South African legal system to bring it in line with international developments regarding restitution and compensation to victims of crime, attention being given to the meaning, significance and implementation of the doctrine of restorative justice when dealing with the aftermath of criminal injury. In addition to a complete revision of South African legislation dealing with offender/victim restitution, this study recommends the consolidation of the Road Accident Fund and the Compensation Fund operating in terms of the Compensation for Occupational Injuries and Diseases Act. These two bodies should be amalgamated to create a unified Compensation Scheme to compensate victims of crime, as well as victims of traffic and industrial injuries. General qualifying criteria for claimants would be drafted, with specific criteria applying in cases of traffic, industrial and crime related injuries, respectively.

This cross-sectional, non-experimental study evaluates associations between cohort membership, type of dental coverage, and utilization of dental services in all patients age 47 and over who received dental care at Virginia Commonwealth University’s (VCU) School of Dentistry in 2011. Structural Lag Theory poses that society’s institutions lag behind the actuality of a healthy and capable older adult population. The two dynamisms of the Structural Lag Theory were used for this study. The Dynamism of Changing Lives is represented by Cohort differences. Cohort differences include cohort size, people living longer and retaining more of their natural teeth along with different attitudes toward dental care. This dynamism impacts the Dynamism of Structural Change, represented by the institutions of dental coverage and utilization of dental services. Cohort membership is an independent variable. The dependent variable, utilization, is defined as Financial-Total amount spent and Procedural-Routine adult dental prophylaxis. Dental coverage, a dichotomous variable, is used as an independent and dependent variable. Descriptive statistics revealed employer provided dental coverage is the most prevalent type of dental coverage. However, when considered a payment source, out of pocket funding is the primary source of payment for dental services. Using Chi-square and logistic regression, examination of Cohorts (1-Greatest Generation, 2-Silent Generation, 3-Baby Boomer Generation) revealed that Cohort 2 had more dental coverage than Cohort 1, and Cohort 3 had more dental coverage than Cohort 2. Using logistic regression, Cohort 2 showed the highest level of Procedural utilization. Evaluating Financial utilization, multiple regression models showed Cohort 1 utilized more than Cohort 2 and Cohort 2 utilized more than Cohort 3. Those with dental coverage spend more on dental services, fees for routine adult dental prophylaxis make up the majority of the total amount spent, and those with dental coverage utilize more dental services when defined as total amount spent. Because they have experienced different social, political, economic, and technological changes at different times in their life course, the receipt of dental services by new cohorts of older people differs from previous ones. Findings from this study confirm that there is a structural lag in Medicare policy and its coverage of dental services.

This thesis examines the history of Commonwealth Government higher education policy in Australia between 1958 and 1997 and its impact on the development of two groups of academic librarians: the Association of Librarians in Colleges in Advanced Education (ALCAE) and the Committee of Australian University Librarians (CAUL). Although university librarians had met occasionally since the late 1920s, it was only in 1965 that a more formal organisation, known as CAUL, was established to facilitate the exchange of ideas and information. ALCAE was set up in 1969 and played an important role helping develop a special concept of library service peculiar to the newly formed College of Advanced Education (CAE) sector. As well as examining the impact of Commonwealth Government higher education policy on ALCAE and CAUL, the thesis also explores the influence of other factors on these two groups, including the range of personalities that comprised them, and their relationship with their parent institutions and with other professional groups and organisations. The study focuses on how higher education policy and these other external and internal factors shaped the functions, aspirations, and internal dynamics of these two groups and how this resulted in each group evolving differently. The author argues that, because of the greater attention given to the special educational role of libraries in the CAE curriculum, the group of college librarians had the opportunity to participate in, and have some influence on, Commonwealth Government statutory bodies responsible for the coordination of policy and the distribution of funding for the CAE sector. The link between ALCAE and formal policy-making processes resulted in a more dynamic group than CAUL, with the university librarians being discouraged by their Vice-Chancellors from having contact with university funding bodies because of the desire of the universities to maintain a greater level of control over their affairs and resist interference from government. The circumstances of each group underwent a reversal over time as ALCAE's effectiveness began to diminish as a result of changes to the CAE sector and as member interest was transferred to other groups and organisations. Conversely, CAUL gradually became a more active group during the 1980s and early 1990s as a result of changes to higher education, the efforts of some university librarians, and changes in membership. This study is based principally on primary source material, with the story of ALCAE and CAUL being told through the use of a combination of original documentation (including minutes of meetings and correspondence) and interviews with members of each group and other key figures.

Thomas Hobbes insisted that he had set forth the "true and only moral philosophy" and that he was the founder of civil science. Yet, the character of Hobbes's moral and political theory and its role in his civil doctrines has been the subject of much controversy. In this dissertation I defend an interpretation as a properly natural law theorist in his accounts of the foundations of moral philosophy and civil science, morality, commonwealth, and positive law. I juxtapose Hobbes's thought to the Aristotelian-Thomistic natural law tradition and argue that Hobbes's novelty flows chiefly from his doctrine of the human good.
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Celem niniejszego studium jest zaprezentowanie w maksymalnie szerokim kontekście militarnym, politycznym i prawnym organizacji i funkcjonowania wojskowego wymiaru sprawiedliwości w wojsku koronnym, jak również próba odpowiedzi na pytanie, jak dużą rolę pełniło ono w całościowym systemie utrzymania dyscypliny w armii w dobie wojen polsko-litewskiej Rzeczypospolitej z Imperium Osmańskim w drugiej połowie XVII w. Praca została podzielona na pięć rozdziałów. W pierwszym zaprezentowano krótki rys historyczny rozwoju wojskowego wymiaru sprawiedliwości w polsko-litewskiej Rzeczypospolitej i innych państwach europejskich w epoce wczesnonowożytnej, a także system źródeł prawa wojskowego obowiązującego w Koronie w drugiej połowie XVII w. Rozdział drugi przedstawia polityczne uwarunkowania funkcjonowania wojskowego wymiaru sprawiedliwości – wpływ działalności sejmu i sejmików na dyscyplinę, prawo i sądownictwo wojskowe. Kwestie te zostały potraktowane dość obszernie właśnie po to, aby wskazać na społeczny kontekst pracy sądów wojskowych – społeczne oczekiwania wobec sądownictwa wojskowego i nierzadko bardzo krytyczne oceny jego działalności. Kolejne rozdziały opisują organizację i funkcjonowanie poszczególnych sądów wojskowych: rozdział trzeci – niższych sądów wojskowych: sądów chorągiewnych i regimentowych, a także sądów artyleryjskich (które podobnie jak sądy chorągiewne i regimentowe były zwoływane doraźnie), rozdział czwarty – wyższe sądy wojskowe: sądy generalne zaciągu narodowego i cudzoziemskiego, wreszcie rozdział piąty – sądu hetmańskiego i sądów regimentarskich. Całość zamyka podsumowanie i aneks, w którym zamieszczono przykładowe dokumenty związane z działalnością koronnych sądów wojskowych w drugiej połowie XVII w.
The purpose of this dissertation is to present the organization and functioning of military justice in the Polish Crown Army in the broadest possible military, political and legal context. It is also an attempt to answer the question what was the role that military judiciary played in the overall system of maintaining military discipline in the time of wars between the Polish-Lithuanian Commonwealth and the Ottoman Empire in the second half of the 17th century. The thesis is divided into five chapters. The first chapter presents a short historical overview of the development of military justice in the Commonwealth and other early modern European states, as well as the system of the sources of military law in the Crown of Poland in the second half of the 17th century. The second chapter shows political preconditions of the operation of military justice: the influence of the activity of the sejm and sejmiks on military discipline, law and judiciary. These issues were treated quite extensively in order to expose the social context of the functioning of courts-martial: social expectations of military justice system and often very critical opinions about its activity. Subsequent chapters describe organisation and functioning of individual courts-martial: the third chapter – lower courts-martial: company and regimental courts (sądy chorągiewne, sądy regimentowe) as well as artillery courts (sądy artyleryjskie, which like company and regimental courts were convened on an interim basis); the fourth chapter – higher courts-martial: general courts of domestic and foreign enlistment (wojskowy sąd generalny zaciągu narodowego, wojskowy sąd generalny zaciągu cudzoziemskiego); finally the fifth chapter – the hetman’s court (sąd hetmański) and hetman lieutenant’s courts (sądy regimentarskie). The whole dissertation ends with the summary and the appendix that includes exemplary documents related to the activity of Polish military justice in the second half of the 17th century.

Niniejsza rozprawa dotyczy procesów o dziesięciny należne kościołowi parafialnemu w Kobylinie (ziemia bielska województwa podlaskiego, diecezja łucka). Były one składane w postaci snopów żyta, jęczmienia i owsa. Parafia kobylińska obejmowała wyłącznie wsie zamieszkane przez drobną szlachtę, która w znacznej większości nie posiadała poddanych i sama uprawiała ziemię. Plebani kobylińscy pozywali szlachtę, która zalegała z dziesięcinami do sądów szlacheckich (ziemskich i grodzkich). Pierwszy rozdział opisuje historię dziesięcin w Królestwie Polskim oraz Rzeczypospolitej polsko-litewskiej aż do III rozbioru w 1795 roku, a także zmiany dotyczących jej regulacji tak z zakresu prawa państwowego, jak kanonicznego powszechnego i partykularnego. Kolejny rozdział poświęcono strukturze społecznej i majątkowej ziemi bielskiej, historii i organizacji miejscowych sądów szlacheckich i kościelnych, a na koniec kosztów postępowań w obu tych jurysdykcjach. Następnie scharakteryzowano sytuację ekonomiczną samej parafii kobylińskiej jako instytucji kościelnej, jej plebanów oraz ich krewnych. Poruszono także bardzo ważne zagadnienia zamożności parafian oraz ich stosunków z plebanami i ich rodziną. Ostatni, czwarty rozdział omawia najważniejsze zagadnienia staropolskiego prawa procesowego w świetle materiałów procesowych oraz wyroków sądów szlacheckich dotyczących dziesięcin w Kobylinie.
The present dissertation is devoted to the tithes trials in the Kobylin parish in the Polish-Lithuanian Commonwealth (Bielsk land of the Podlachian voivodeship, dioecese of Lutsk). The tithes were paid in the form of sheaves of rye, barley and oats. The parish of Kobylin included only villages inhabited by noblemen who were small landowners and cultivated their lands by themselves. The parish priests took parishioners that had not paid these tithes to noble courts. In the first chapter I have described the history of the tithes in the Kingdom of Poland as well as in the Polish-Lithuanian Commonwealth until 1795 and the changing legal framework of them. The second chapter is devoted to the social structure of the Bielsk land, the history and organization of the local noble and church courts, and finally the legal costs in both jurisdictions. Subsequently, I have described the economic condition of this parish, the parish priests and their relatives. Very important questions are also wealth of parishioners and their relations with the parish priests and their families. Finally, the fourth chapter concerns the key institutions of Old Polish legal procedure in the light of trials and verdicts of noble courts.