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Raimondo, Fabián Omár. "General principles of law in the decisions of international criminal courts and tribunals." [S.l. : s.n.], 2007. http://dare.uva.nl/record/234268.
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Vettraino, Florence. "Internationales und staatliches Strafverfahrensrecht." Doctoral thesis, Humboldt-Universität zu Berlin, Juristische Fakultät, 2013. http://dx.doi.org/10.18452/16741.
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Das Verfahren der internationalen ad hoc Strafgerichtshöfe für das ehemalige Jugoslawien und für Ruanda kann als die erste völkerstrafverfahrensrechtliche Ordnung betrachtet werden. Von den Richtern selbst ausgearbeitet und entwickelt, orientierte sich dieses Verfahren ursprünglich sehr an dem angloamerikanischen Strafprozessmodell. Mangels geeigneter Präzedenzfälle und angesichts der vielen Analogiefaktoren zwischen dem innerstaatlichen Strafverfahrensrecht und dem Völkerstrafverfahrensrecht haben sich die Richter -insbesondere während der ersten Tätigkeitsjahre ihrer Gerichtshöfe- öfter auf innerstaatliche Rechtspraxen bei der Anwendung ihrer Verfahrens- und Beweisordnungen bezogen. Die vorliegende Arbeit untersucht diese Bezugnahme auf innerstaatliches Recht anhand der Rechtsprechung beider ad hoc Strafgerichtshöfe im Bereich des Beweisrechts. Die Gründe und Formen der Bezugnahme auf innerstaatliches Recht werden zuerst dargestellt und anschließend analysiert. Aus der Untersuchung der Rechtsprechung ergibt sich eine insgesamt unsystematische und pragmatische Nutzung des innerstaatlichen Rechts, welches meistens dazu dient, die für den Einzelfall geeignetste Lösung zu liefern und/ oder die von den Richtern getroffene Entscheidung zu legitimieren. Solch eine Vorgehensweise birgt zweierlei Probleme: Ein Legitimitätsproblem angesichts der Internationalität des Verfahrens der ad hoc Strafgerichtshöfe und ein Problem hinsichtlich der Vorhersehbarkeit der Anwendung ihrer Verfahrens- und Beweisordnungen. Abschließend widmet sich diese Arbeit dementsprechend der Frage nach einer methodischen Herangehensweise, welche zu mehr Legitimität und Vorhersehbarkeit bei der Anwendung der Verfahrensregeln internationaler Strafgerichtshöfe beitragen könnte, und dies abgesehen davon, ob sich die Richter dabei auf externe normative Räume, wie diejenigen innerstaatlicher Rechtsordnungen, beziehen oder nicht.The procedure of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda can be regarded as the first set of rules of international criminal procedure. This procedural law, constructed and developed by the judges themselves was primary inspired by the common law approach to criminal proceedings. In the absence of precedents, and given the numerous potential analogies between domestic criminal procedure and international criminal procedure, the judges often referred to domestic legal practices - particularly during the ad hoc tribunals’ first years of activity - when applying rules of procedure and evidence. The present work investigates this reference to domestic law by examining the ad hoc tribunals’ jurisprudence regarding the law of evidence. The reasons for and forms of the reference to domestic law are first presented and then analysed. This study concludes that, on the whole, domestic law is referred to in an unsystematic and pragmatic manner: It is mostly used by the judges in order to provide the most suitable solution for the particular case before them and/ or to legitimate a decision they have already made on the basis of their own procedural rules. Such an approach raises two problems: a legitimacy deficit in regard to the internationality of the ad hoc tribunals’ procedure and a lack of predictability in the application of the rules of procedure and evidence. This study deals therefore finally with the possibility of a methodical approach, which could contribute to more predictability and legitimacy in the application of the procedural rules of international criminal tribunals, regardless of whether or not the judges refer to external normative systems, such as domestic legal orders.
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Chantry, Allen David. "Mens rea in modern criminal law." Thesis, Liverpool John Moores University, 1988. http://researchonline.ljmu.ac.uk/4895/.
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The purpose of the thesis is to critically analyse the current legal forms of mens rea which are shared by common law and statute, namely intention, recklessness, malice, negligence and strict liability. I shall argue that the current concepts are (i) inadequate since they lack conceptual clarity, consistency and cohesion; (ii) that the concepts of intention and recklessness lack terminological consistency since their parameters extend to states of mind which properly belong elsewhere and (iii) that they are unable to draw out significant moral distinctions in moral culpability with which agents perpetrate criminal offences. The major cause for the inadequacies of the present structure lies in the number of mental states which constitute mens rea at current law. They are so few that judges have seen fit to manipulate the contours to serve the needs of justice in the cases. This has led to considerable conceptual and terminological confusion both within and between the concepts. But the major failing of the current structure of mens rea, rooted in the same cause, is that it does not sufficiently draw out significant differences in moral status between agents who perpetrate harm. It fails to do this in two ways. First, the concepts of intention, recklesness and negligence are broad in their scope so that each includes a fairly wide area of moral turpitude. Second, where a particular offence admits more than one form of mens rea the conviction does not discriminate between the various requisite mental states and thus denies accurate ascriptions of moral culpability over a large area of mental attitude toward proscribed harm. I shall offer a new structure of wens rea which would be constituted by (i) direct intention, (ii) comcomitant intention, (iii) purpose, (iv) objective, (v) gross recklessness, (vi) simple recklessness, (vii) gross negligence and (viii) simple negligence. I shall argue that the proposed structure is preferable since the more sophisticated set of fault terms would be (1) conceptually clear, consistent and coherent, (ii) would be more terminologically consistent and (iii) would more clearly express the moral status of the agent in each case concerning the harm brought about by him. I shall demonstrate that the proposed structure is more able to express differences in moral culpability because (i) the more sophisticated set of mens rea terms would provide a better gradation in moral fault and (ii) it would be a requirement of the proposed structure of mens rea that the court or jury determine the precise mental state with which the agent perpetrates a criminal offence and that mental state would be recorded with the conviction.
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Clavijo, Jave Camilo. "Criminal compliance in the peruvian criminal law." Pontificia Universidad Católica del Perú, 2014. http://repositorio.pucp.edu.pe/index/handle/123456789/115578.
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First, this work proposes a study of the origin, elements and application of the Compliance Program or, also named, Regulatory Compliance Program. The aforementioned program is understood as an internal device that corporations use not only to comply with the current legislation but also to prevent and detect legal violations they could be found in or as part of the activities they carry out.Second, it tries to explain and develop the connection between, on one hand, the new risks in the financial and technological development and, on the other hand, Criminal Law as a protective body of important legal assets for society. The aim is to analyze Criminal Compliance to get the corporationto manage its activities under current legislation, especially Criminal Law.In this regard, it enlarges the sectoral developments based on the Peruvian Government’s implementation of the the Compliance Program in the legal framework.Finally, it analyzes the impact of Criminal Compliance in the criminal legal framework. For that end, it refers to the criminal liability system in Peru and in what way it impacts on the application of Criminal Compliance.El trabajo propone, en primer lugar, un estudio del origen, los elementos y la aplicación del Compliance Program o, también llamado, Programa de Cumplimiento Normativo, entendido como un dispositivo interno que las empresas implementan para cumplir con la normatividad vigente, así como para prevenir y detectar las infracciones legales que se produzcan dentro de las mismas o como parte de las actividades que estas realizan. Asimismo, se intenta explicar y desarrollar la relación entre los nuevos riesgos, debido al desarrollo económico y tecnológico, y el derecho penal como ente protector de bienes jurídicos de importancia para la sociedad. Esto último tiene como finalidad analizar el Criminal Compliance, destinado a que la empresa ordene su actividad conforme a la normativa aplicable, en especial la ley penal. En tal sentido, se desarrolla la aplicación que el Estado peruano ha realizado del referido Programa de Cumplimiento Normativo en el ordenamiento jurídico, en concreto los avances sectoriales. Finalmente, se analiza el impacto del Criminal Compliance en el ordenamiento jurídico penal. Para ello, se hace una referencia al sistema de responsabilidad penal adoptado en el Perú y de qué manera esto impacta en la aplicación del Criminal Compliance.
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Chaves, Mariana. "The evolution of European Union criminal law (1957-2012)." Thesis, London School of Economics and Political Science (University of London), 2012. http://etheses.lse.ac.uk/590/.
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This thesis addresses the nature of European Union criminal law (ECL). It claims that ECL has evolved along two main expanding dynamics, both with a significant punitive emphasis. The first dynamic of ECL focuses on the fight against a particular type of criminality that the European Union perceives as threatening to its goals - ‘Euro-crime’ - a criminality with particular features (complex in structure and which attempts primarily against public goods) that reflects the nature of contemporary societies. This focus was brought about by rationales such as the fight against organised crime, the protection of EU interests and policies, and recently, the protection of the victim. In turn, the second dynamic of ECL reinforces the State’s capacity to investigate, prosecute and punish beyond its own national borders. It does so, not only in relation to Euro-crime, but also in relation to a broader range of criminality. This thesis will further argue that these two dynamics have contributed to a more severe penality across the European Union by increasing levels of formal criminalisation; by facilitating criminal investigation, prosecution and punishment; and by placing more pressure on more lenient States. Furthermore, it will claim that this punitive emphasis of ECL has, more recently, begun to be nuanced. This has taken place at the national level as some Member States have shown reluctance to fully accepting the enhanced punitive tone of ECL instruments. It has also taken place at EU level as the punitive emphasis of EU legal instruments was modulated and the protection of fundamental rights has taken a more central place in the ‘post Lisbon’ framework. Thus, at this later stage of ECL a dialectic between punitiveness and moderation began to surface.
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Kihara-Hunt, Ai. "Individual criminal accountability of UN police personnel." Thesis, University of Essex, 2015. http://repository.essex.ac.uk/16022/.
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UN police are involved in establishing the rule of law, in UN Peace Operations. However, they themselves commit serious crimes, but are not generally prosecuted. This is likely to have an impact on the UN’s effectiveness and legitimacy. Are the UN’s mechanisms for addressing criminal accountability effective? If there is a problem, how can it be mitigated? To answer these questions, the qualifications, qualities and functions of UN police were identified. Next, an attempt was made to quantify the problem of their criminal behaviour. Current accountability mechanisms were assessed. Jurisdictional and immunity issues were examined as potential barriers to prosecution. Finally, the obligations of States and the UN to investigate and prosecute criminal acts committed by UN police were examined. Research confirmed that UN police officers commit serious crimes, but probably mostly while not on duty. Whether officers commit crimes appears to be linked more to their personal integrity than their functions. In the main, they are not being called to account. In addition, the UN is not effective in generating information fit for use in criminal proceedings. However, the laws on jurisdiction and immunity do not constitute legal barriers to accountability, although immunity poses some problems in practice. The principal problem appears to be the lack of political will to bring prosecutions. The finding that States, and arguably the UN, have an obligation to investigate and prosecute crimes may encourage prosecution. The lack of criminal accountability of the UN police appears to be linked to the mismatch between the ambitious Peace Operation mandates and the number of qualified personnel these attract. The UN also lacks transparency, which makes it difficult accurately to determine the scale of the problem. It is recommended that these issues be discussed frankly in the UN’s political organs.
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Fernández, Ruiz José Manuel. "Indigenous peoples and immigrants : the multicultural challenge of criminal law." Thesis, University of Glasgow, 2018. http://theses.gla.ac.uk/9107/.
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This thesis is the conclusion of doctoral research that pursued to examine whether indigenous peoples’ demands for access to their cultural practices can be accommodated within criminal law. In a globalised context in which states become increasingly multicultural this question raises fear of social fragmentation and the anxiety for achieving unity. Certainly, Rwanda and Kosovo evidence that claims to access culturally diverse practices may lead to war or even genocide. The context of the thesis is a more benign form of response to these claims: accommodation. While accommodation in general has received great attention from scholars (Kymlicka 1989, Gutmann et al 1994, Tully 1995), within criminal law the only focus has been cultural defences (Renteln 2004, Kymlicka et al 2014). However, little research has been conducted to understand the broader implications of this phenomenon for both the accommodated and the accommodating. The research aims to shed light on these broader implications of accommodation by exploring it within criminal law. Certainly, the simplicity and individualised nature of cultural defence conceals what is at stake for both the accommodated and the accommodating. Specifically, it conceals how criminal law cannot be responsive to the claims of minorities because it seeks to maintain the practices of the constitutional order of which criminal law is part. The result is that the claims of indigenous peoples cannot be accommodated. In order to uncover these implications, the research employs social holism (Pettit 1998) to develop a broader understanding of criminal law as a socio-cultural practice, which enables an adequate description and assessment of the diversity of claims to recognition that minorities make to the state of which they are part. In broadening the view the claims of minorities become linked to their position within the constitutional order (Tully 1995), and then the question arises as to whether minorities have been unjustly excluded or included (Lindahl 2013) in that order, which may lead to recognise a new plurality of responses that the state and its criminal law should provide to them. By broadening the understanding of criminal law it is enabled an adequate framework for the assessment of the phenomenon of accommodation. Certainly, this is necessary for claims to access diverse cultural and social practices to be met with justice, for the state’s responses need to be sensitive to the diversity of claims put forward by minorities, without overlooking that the state as well need to access its particular social and cultural practices.
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Rumbold, John Mark Michael. "The parasomnia defence : expert evidence in criminal trials." Thesis, Keele University, 2015. http://eprints.keele.ac.uk/2501/.
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There are increasing numbers of defendants seeking to rely on the occurrence of sleepwalking or some other parasomnia in their defence to a criminal charge. Consequently this has become a matter for public concern, particularly in relation to sexual assaults committed after alcohol consumption. This study used ethnographic methods to understand how the expert witnesses assess the accused in these cases, and then present their evidence to the jury. It also looked at the two-way interactions between law and medical science, and the difficulties each field has with the other. Sleepwalking in particular is an under-researched condition, with the basic phenomenology not fully explored yet. The experts must often rely on professional experience and give opinions, rather than relying on solid scientific evidence. Juries rarely return the special verdict, and victims are left dissatisfied by the incredible nature of the defence. The law pertaining to automatism and insanity is complicated and out of step with medical science. The Law Commission has recently examined this tricky area of law and recommended reform. The study concludes that the standard of expert evidence is generally good, although further work is needed to examine the specifics of how opinion and test results are presented to the jury. A number of recommendations are made about the standard of admissibility, legal reform and future directions of research.
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Ferguson, Rex. "Experience on trial : criminal law and the modernist novel." Thesis, University of Glasgow, 2009. http://theses.gla.ac.uk/1319/.
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The cultural forms of modernity become truly modern only when specific experience, as opposed to tradition or faith, is made the basis of epistemological authority. By taking the primary examples of law and literature, this thesis argues that the criminal trial and realist novel of the eighteenth and nineteenth-centuries perfectly conform to this statement. But by the early twentieth-century, experience had, as Walter Benjamin put it, ‘fallen in value’. As such, the modernist novel and trial come to have foundations in a non-experience which nullifies identity, subverts repetition and supplants presence with absence. The philosophical basis of experience, its fundamental basis within the novel and trial, and the theoretical manifestations of its dissolving, are outlined in the substantial Introduction to this thesis. Chapter One then specifically examines E.M. Forster’s A Passage to India (1924) within the context of the administration of justice in British India. Adela Quested’s supposed assault within the Marabar cave is argued to be a non-event which in no way conforms to the modern sense of experience outlined in the Introduction. This resonates with the state of the trial in British India, in which many magistrates became convinced of the rampant perjury of the natives, turning their decisions into a matter of deciding between the less untrue of two false accounts. Like the non-event in the Marabar cave, the crime that was supposedly at the heart of the trial, the experience at its core, was thus slipping from view. In the second part of Chapter One, it is argued that in his theoretical work, Aspects of the Novel (1927), Forster, responding to anxieties about the novel’s experiential loss, attempted to codify the laws of the realism. This project had much in common with the Acts of legal codification that took place in British India in the 1860s and ‘70s, particularly that of Sir James Fitzjames Stephen’s Indian Evidence Act 1872, which sought to retain a form of representation that was congruent with a traditional conception of experience, thus safeguarding judgment. In Chapter Two, Ford Madox Ford’s The Good Soldier (1915) is analysed in the light of legal developments in expert witnessing and criminal identification. One of the specific issues of Ford’s novel is the kind of identity it portrays. Without commensurable experiences that can be reasonably assimilated and communicated, the identities of The Good Soldier resist the common recognition of a realist character. Legal developments in the attribution of responsibility and the identification of criminals are argued to parallel the methods by which Ford’s ‘Literary Impressionism’, by contrast, provides the image of his actors. In many ways, these issues were matters for expert witnesses, a growing number of whom were taking the stand in British courts. By taking judgment out of the hand of the layman, expertise was supplanting experience. But this was not limited to the legal forum – in the final part of Chapter Two it is suggested that Ford’s novel, itself, responds to a sense of expert reading. Chapter Three discusses Marcel Proust’s In Search of Lost Time (1913-1927) in connection to two points of legal interest. Firstly, the Dreyfus case, which, in its reliance upon absent evidence parallels the denigration of presence that exists in Proust’s novel. Secondly, Dreyfus’ supporters, in calling for a re-trial, asked for a certain form of repetition to take place. The repetitious legal forms of review, appeal, and precedent are then examined in relation to the various forms of repetition that exist within Proust’s work. By utilising Platonic, Nietzschean, and Freudian theories of repetition, it is argued that experience has truly fallen in value when the origins of repetition can be only obliquely discerned. In the Conclusion, the continuity of a realist tradition, and a modernist impulse of non-experience, will be traced in contemporary works – Ian McEwan’s Atonement (2001) and The Staircase (2005), a documentary film by Jean-Xavier De Lestrade about a real murder trial in North Carolina. Finally, a view is offered of the future of experience in the novel and courtroom: one which, based upon John D. Caputo’s reading of Jacques Derrida’s work, stresses the ethical nature of doing truth and making reality in the very act of allowing experience to slip away.
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Woraker, Audrey. "Regulation of the sex industry from a criminal law perspective." Thesis, University of Essex, 2017. http://repository.essex.ac.uk/19956/.
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This thesis examines the sex industry as a whole with the intention of establishing that prostitution should not be marginalised but integrated within the criminal law and regulated as other Sexual Entertainment Venues. I first establish a framework of analysis needed to illuminate the constraints put upon the different elements of commercial sexual activities. This framework stems from the Sexual Offences Act (SOA) 2003, the primary statute that regulates all sexual activities, whether commercial or non-commercial. It has four elements: consent, nature, purpose and visibility. By means of ‘black letter’ law and case histories, I then explore three areas within the sex industry: pornography, live sexual entertainment and prostitution in order to show that the element of consent is consistent throughout and relies solely on the SOA 2003 and is linked directly to the nature of the sexual activities. The nature of the sexual activities has its basis in non-commercial sexual activities, but is regulated in the sex industry in such a way that the nature differs between each commercial area. By contrast, the purpose remains constant in commercial sexual activities although it is at odds with non-commercial. All aspects of consensual sexual activities, whether commercial or non-commercial, must not be visible for unintended viewers. However, advertising of commercial sex is possible and thus visible, with the exception of prostitution. With regards to prostitution, legislation criminalises prostitutes who advertise and their mere presence constitutes a form of advertising. The public presence of prostitutes as well as the presence of their clients also creates the grounds for public nuisance. I then suggest, based on the above information, that statutory legislation could include the use of brothels, this stems from the New Zealand model, in order to respond to issues raised about consent and visibility, as well as extend the protection offered to prostitutes to other sectors of the sex industry when they are confronted with the issue of consent.
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Saleh, Tarik A. "Effect of mental disorder on criminal responsibility and punishment." Thesis, University of Glasgow, 1990. http://theses.gla.ac.uk/8602/.
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The problems which exist for a discussion about the relationship between the so-called mentally-disordered offender or accused and the notion of criminal responsibility and punishment are complex. They can not be fully understood without a consideration of the definition of crime, criminal responsibility, and of theories of punishment. Problems are not simply confined to a theoretical level. Accordingly, there is a need to understand the reality of mental disorder as perceived by psychiatrists and lawyers. This thesis, in chapter 1, looks at the concept of crime and attempts to establish a comprehensive definition. This may specify the circumstances in which the mentally disordered person is likely to become involved with the state and thereby be subject to a particular or special relationship with the law. Accordingly, chapter 1 explores the concepts of crime, its elements, and its limitations. Chapter 2 considers the various theories of punishment in order to seek to establish whether there are sufficient reasons to justify the way we deal with mentally disordered persons and whether they are rooted in concepts of fairness and justice. The next chapter explores the notion of mental disorder and examines the medical basis for understanding the condition. It attempts to examine whether the condition is "medical" and indeed whether it is an "illness". The relationship between the medical model and the legal model of mental disorder is studied in addition to the role played by psychiatrists. Chapter 4 examines the lawyer's approach to the mentally disordered person and seeks to determine whether the legal definition of insanity is in any way different from the medical concept of mental disorder and the consequences that flow from the various defences of insanity. Chapter 5 looks at the reality of the interaction between the mentally disordered person and the various institutions with which he comes into contact. Thus, state hospitals, the disposal of mentally disordered offenders or accused persons and the various sentences or restriction orders are examined. The final chapter considers possible areas for reform, and makes certain recommendations, which if implemented might serve to remove some of the difficulties that have been identified. he investigation includes the situation with regard to mental disorder and criminal responsibility in Iraqi criminal law as wel1. The main purpose of this thesis is to find out the appropriate theory of punishment which might be used to resolve the problem with mentally disordered people (both responsible and non-responsible) in respect of the sentencing process in U.K.
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Picton, John. "Charitable intention in the Cy-Pres doctrine and related trusts principles." Thesis, University of Liverpool, 2013. http://livrepository.liverpool.ac.uk/17913/.
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This thesis provides the first extended taxonomy of charitable intention in the law of schemes. It does so in order to identify the legal functions of intention and suggest critical doctrinal (‘black letter’) reforms so that those functions can be better carried out. Where appropriate, it draws on Australasian statutory and common law innovation. It contrasts developments in those related jurisdictions as a reference point for English reform. Two functions of intention are identified. In the context of established trust reform, intention is one element of a broader process of ‘balanced variation’. The original intention of the donor is balanced against broadly defined effectiveness standards. By contrast, in the context of testamentary construction, intention has a different role. It is constructed simply to make a failed will possible to effect. Efficacious reform is possible with regards to both those functions, and so this thesis proposes a series of common law and legislative changes.
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Coelho, Emerson Ghirardelli. "Investigação criminal constitucional." Pontifícia Universidade Católica de São Paulo, 2016. https://tede2.pucsp.br/handle/handle/7042.
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Previous issue date: 2016-03-07The crisis affecting the Brazilian criminal justice system is often attributed to the inefficiency of the Judiciary Police and the ineffectiveness of the police investigation as a means of investigation of criminal acts. However, the problem takes another relevance when we analyze the criminal investigation in depth in accordance with the democratic principles and constitutional values. We pass, then, to realize that the shortcomings of the investigation procedures are not structural in nature but rather due to interpretive paradigms built under the aegis of political exception regimes. This reveals the need to put in place a contemporary criminal procedure hermeneutics, in which proper criminal investigation, constitutional and legally produced, is regarded as fundamental rights protection instrument, unfolding as real tool for promoting human dignity. Grounded on these assumptions should follow the doctrinal and jurisprudential construction and legislative reforms aiming to improve the extra-judicial phase of the criminal prosecution, consolidating the police investigation as true procedural criminal procedure of a garantista nature, aimed at achieving the constitutional ideal of due process, a principle of the Democratic State of Law
A crise que acomete o sistema de Justiça Criminal brasileiro muitas vezes é imputada à ineficiência da Polícia Judiciária e à ineficácia do inquérito policial como meio de apuração de fatos delituosos. Contudo, a problemática toma outro relevo quando analisamos a fundo a investigação criminal à luz dos princípios e valores constitucionais democráticos. Passamos, então, a perceber que as deficiências do procedimento investigatório não são de cunho estrutural, mas sim decorrentes de paradigmas interpretativos edificados sob a égide de regimes políticos de exceção. Isso nos revela a necessidade de colocar em prática uma hermenêutica processual penal contemporânea, em que a devida investigação criminal, constitucional e legalmente produzida, seja encarada como instrumento de proteção de direitos fundamentais, desvelando-se como verdadeira ferramenta de promoção da dignidade humana. Alicerçadas nessas premissas devem seguir as construções doutrinárias e jurisprudenciais e as reformas legislativas que visem aprimorar a fase extrajudicial da persecução criminal, consolidando o inquérito policial como verdadeiro procedimento processual penal de cunho garantista, voltado a concretizar o ideal constitucional de processo justo, princípio este basilar do Estado Democrático de Direito
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Moreno, Molina José Antonio. "General Principles of Public Procurement in Recent International, European and Latin American Law." Derecho & Sociedad, 2015. http://repositorio.pucp.edu.pe/index/handle/123456789/118488.
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The paper reflects on the importance of the general principles of public procurement in the application and interpretation of the law in this area. To this objective both the international law of administrative contracts, which has its main landmarks in the government procurement agreement of the World Trade Organization and the United Nations Model Law, as the regulation and case law of the European Union are analyzed, which has laid a very advanced teaching in this regard. Finally it is subject to review recent legislation compared to Latin America on public procurement, which attaches great importance to general principles.En el trabajo se reflexiona acerca de la importancia de los principios generales de la contratación pública en la aplicación e interpretación del Derecho en la materia. A tal efecto se analizan tanto el Derecho Internacional de las contrataciones administrativas, que tiene sus principales hitos en el Acuerdo de compras públicas de la Organización Mundial del Comercio y en la Ley Modelo de Naciones Unidas, como la regulación y jurisprudencia de la Unión Europea, que ha sentado una doctrina muy avanzada al respecto. Finalmente es objeto de comentario la reciente legislación comparada de países de América latina sobre contratos públicos, que concede una gran importancia a los principios generales.
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Heidemann, Maren. "Methodology of uniform contract law : the UNIDROIT principles in international legal doctrine and practice." Thesis, University of Nottingham, 2005. http://eprints.nottingham.ac.uk/12078/.
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Despite ever growing international trade and dispute settlement, a consistent international methodology of uniform private law has yet to be formed. This is needed in order to encourage the use of existing uniform transnational law rules specifically designed for application to international commercial contracts. This study examines uniform contract law in legal methodology and considers the barriers which exist toward it in modern nation states. It explores ways in which these barriers can be overcome and considers whether it is thereby possible to create a specific methodology of international contract law. Through exploring these three areas, this thesis intends to distinguish and analyse the main obstacles to the application of uniform contract law. The study is therefore organized into three sections, each exploring one of those methodological obstacles and providing solutions for overcoming them. Part One discusses the barriers erected by traditional theories of contract law. Part Two addresses the attitude taken by national lawyers when applying uniform law and enquires how this attitude is formed. This section also asks why this attitude provides an obstacle to the success of uniform law and considers ways in which it could be changed. Part Three, the third and final section considers the treatment of uniform contract law in the context of conflict of laws. This section also asks how seemingly opposite positions in the modern and traditional theory of private international law can be reconciled and considers the ways in which uniform contract law can be applied within a domestic law context as lex contractus. The author argues that the points of resistance identified can be tackled by developing an autonomous methodology of interpretation of transnational contract principles; and, by treating model sets of transnational contract principles as a form of lex specialis. Overall, the thesis seeks to demonstrate that the potential of the UPICC has not yet been fully recognised, and that barriers to such recognition are not insurmountable.
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James, Hazel. "Criminal responsibility, abnormal mental states, and the functions of expert medico-psychological evidence." Thesis, University of Nottingham, 2005. http://eprints.nottingham.ac.uk/13328/.
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This thesis exammes the interaction of law and medico-psychology in homicide cases, where the defences of insanity and diminished responsibility in particular are raised. If the defendant's mental state is subject to scrutiny through the defences, then expert medico-psychological evidence is required, yet law and medico-psychology have very different understandings on the mind and very different roles with regard to assessing individuals. Expert medico-psychological evidence can be submitted in the consideration of criminal responsibility, when sentencing is concerned with whether prison or hospital is most appropriate, and for release decisions involving judgments about the defendant's potential risk and dangerousness. The examination of the interaction between law and medico-psychology incorporated three dimensions. First, an exposition of the respective theoretical positions of the two disciplines on the mind, detailing the pertinent legislative and common law rules. The second analysed the judicial interpretations of the medico-psychological terms and concepts contained in the substantive law, and in addition, the controls developed through judicial reasoning on the procedural role of the expert and the admission of expert testimony. Finally, the practitioners' perspective is explicated, which was obtained by conducting interviews with lawyers and medico-psychological expert witnesses. There are two facets to the research conclusions, which simplistically stated are: first, in terms of the interaction between law and medico-psychology, the law uses medico-psychological concepts and evidence in a symbolic manner to facilitate legal objectives. Secondly, the examination of the nature of the interaction through the three dimensions exposed the fundamental difference between the theoretical legal debates and the practitioners' perspective. Although the former normally informs legislative and reform discussions, it seems from this research that consideration needs to be given to all the dimensions in future reform debates.
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Pal, Shivani. "Issues and controversies surrounding the use of plea bargaining in international criminal tribunals." Thesis, University of Central Lancashire, 2013. http://clok.uclan.ac.uk/8511/.
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This thesis investigates the ethical issues and controversies that surround the use of plea bargaining in international criminal tribunals. Existing approaches to this subject have a tendency to be overly abstract, resulting in often ideologically deterministic justifications or critiques of plea bargaining in an international context. These approaches also fail to take into account any human dimension that may be involved in these negotiations. This thesis goes some way towards remedying this by making use of extensive in-depth interviews with international trial professionals. The thesis incorporates these interviews into an analysis of plea bargaining through three theoretical models: classic utilitarianism, classical liberal rule of law and legal imperialism. Each of these three models highlights significant issues in relation to the use of plea bargaining in an international context. Whilst they offer both justifications and critiques, revealing a number of gaps and blind spots, elements of each offers something that can assist an understanding of the use of plea bargaining in such a controversial arena as international war crime tribunals. The thesis argues that, when considered together, a holistic approach begins to develop which offers a more nuanced approach to plea bargaining than is currently available. This analysis is assisted and illustrated by interviews with named participants in war crime tribunals. These assist in developing a more unique perspective on plea bargaining by contextualising its theoretical findings by placing them into the tangible and realistic contexts of legal practitioners. The thesis opens with an introduction which sets out its aims and objectives. After which there is a separate chapter that discusses the methodologies used in this thesis. This is then followed by two chapters that outline the role of the international tribunals and introduce the concept and to explain the trajectory of plea bargaining and its use in the global arena. The thesis then moves on to its more substantial chapters which evaluate the this particular legal phenomenon; the third explores the justifications for plea bargaining through the theory of utilitarianism, examining its relevance in light of the interview responses, whilst the fourth is concerned with the objections to plea bargaining that are contained within the concept of the classical rule of law. Here, once more, the interviews undertaken with legal practitioners are used to challenge the theoretical assumptions put forward by such liberal thinking. Building even further on these responses, the fifth chapter argues for a consideration of plea bargaining as a form of legal imperialism. The thesis concludes with a critical reflection that draws on its analysis of the three models to offer some recommendations concerning the future use of plea bargaining within the context of international war crime tribunals.
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Xue, Dong. "A general study of the extraterritoriality of criminal forfeiture law, Canada and China." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1999. http://www.collectionscanada.ca/obj/s4/f2/dsk1/tape9/PQDD_0023/MQ51513.pdf.
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Fellrath, Isabelle. "A study of selected principles of international environmental law in the light of 'sustainable development'." Thesis, University of Nottingham, 1998. http://eprints.nottingham.ac.uk/10983/.
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Since the late 1980s, the terms of 'sustainable development' have been frequently referred to both in international environmental law instruments and in the doctrine. In spite of such references, however, sustainable development has remained poorly developed in terms of its meaning and of its practical and normative implications. This thesis purports to come out with a partial picture of what sustainable development means (or does not mean) in the restricted context of international environmental law. To do so, it will try to identify in which respect and how far sustainable development has influenced and has been reflected in the evolution of some selected principles of that law. Each principles is considered in an evolutionary perspective, from the time of its inception to the time of its 'association' to sustainable development.
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Suarez, Jorge Ramiro Perez. "We are cyborgs : developing a theoretical model for understanding criminal behaviour on the Internet." Thesis, University of Huddersfield, 2015. http://eprints.hud.ac.uk/id/eprint/28324/.
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Technology has supposed a profound paradigm shift in human evolution, following Haraway’s cyborg metaphor we have forged a profound psycho-social rapport machines. This connectivity has also brought changes in crime patterns and fostered the development of cybercrime. From a criminological perspective, this work aims to explore the role of Per-Olof Wikströms Situational Action Theory in explaining cybercrime by including Syke and Matza’s neutralisation techniques in its formulation. The SAT-RI (SAT- Revised for the Internet) takes into consideration the interaction between cyber-crime propensity (based essentially in moral perceptions), the internet, neutralisation techniques (cognitive scripts used as protection against blame) and self-control. The theory was tested by using a mixed methods design that includes an online survey (N=709) and case studies (N=20) stemming from interviews with law enforcement agents. Once the data was analysed, it was demonstrated that individuals with low self-control tend to have higher cybercrime propensity and are more prone to justify their acts by using adequate neutralisations. In addition, there are differences in the perceptions of cybercriminals by law enforcement agents depending on whether they are fraudsters, child sex abusers, sex abusers or hackers. The resulting theory can be useful in terms of prevention, as it can help design programmes that focus on the different stages of the cybercrime process (self-control, propensity or neutralisation). Also, the thesis calls for a more anthropological conception of cybercriminology called cyborg criminology.
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Marshall, Pablo. "Criminal disenfranchisement : a debate on punishment, citizenship and democracy." Thesis, University of Glasgow, 2015. http://theses.gla.ac.uk/5968/.
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Many convicted offenders around the world do not vote in elections because they have been disenfranchised, which is the legal deprivation of their voting rights as a consequence of their convictions. Addressing this practice from the perspective of legal and constitutional theory, this dissertation deals with the question of how modern democracies should understand the connection between the right to vote and the commission of a criminal offence. After careful analysis of issues related to the democratic importance of the right to vote, the civic virtue of offenders and the requirements of a democratic punishment, the dissertation argues that disenfranchisement is a practice that constitutes an unjustified exception to the general principle of universal suffrage. However, it may also critically express and shape some of our general ideas about democracy and citizenship. In particular, it is argued that the exclusionary and degrading aspects of disenfranchisement can illuminate inclusionary aspects associated to the right to vote. In making this argument, it is suggested that the right to vote not only works as a right of participation but also embodies a mechanism of democratic recognition. Addressing the current common law jurisprudential trends on disenfranchisement, it formulates a case for a strong judicial review of legislation in cases in which voting eligibility is at stake.
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Versan, R. "The general principles of international judicial assistance in civil matters and judicial assistance to international courts." Thesis, University of Cambridge, 1985. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.373715.
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Ouma, Jack Busalile Mwimali. "Conceptualisation and operationalisation of the right to a fair trial in criminal justice in Kenya." Thesis, University of Birmingham, 2013. http://etheses.bham.ac.uk//id/eprint/3984/.
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This thesis explores issues concerning the conceptualisation and operationalisation of the right to a fair trial in the Kenyan criminal justice system. In particular, it looks at how and why there have been many difficulties with the implementation of this universal set of values that have been recognised since the adoption of the formal legal system in Kenya, and which have been enshrined in the Constitution since independence. It addresses a number of overarching questions. First, it identifies the factors that hindered the full realisation of the right to a fair trial. Secondly, it enquires into whether the shortcomings of the recently repealed Constitution in that regard have been fully addressed by the new Constitution adopted in 2010. Thirdly, it identifies and analyse the impact of factors outside the formal law which may have affected the practical operation of certain core elements of the right to a fair trial. Finally, in light of the above, it explores a number of approaches that might be used to address these other factors so as to help achieve at least a better, enforcement of fair trial rights in the country.
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Urquiza, Nayeli. "Drug mules and the limits of criminal law from the perspective of gender and vulnerability." Thesis, University of Kent, 2015. https://kar.kent.ac.uk/50880/.
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This thesis probes the limits of concepts and practices in criminal law through an interdisciplinary analysis of vulnerability and gender, shown through the case study of women who act as drug mules and have been sentenced for drug importation offences in England and Wales. While this thesis critiques the current state of drug control and how international drug law characterizes drug trafficking as crime carried out by ‘evil’ and ‘greedy’ offenders, the enquiry is much broader because it questions role of criminal law in the severe punishment of drug mules. Discourses on the vulnerability of drug mules expose the difficulties of judging them solely as threatening traffickers and highlight the particular effects and situation of women participating in the international drug trade. Rather than accepting the victim-offender dichotomy given by legal categories, this thesis suggests that the ambivalent construction of drug mules’ legal subjectivity evinces a deep-seated contradiction in criminal law. The strict frameworks within criminal law labelling actors into either victims or offenders are ways in which the ambiguity intrinsic in human action and embodied social life are denied while shaping and perpetuating a heterosexist models of legal subjectivity. Drawing on phenomenology, critical theory, and feminist legal theory, the thesis offers a critique of legal subjectivity and the grounds of criminal law from the perspective of gender and vulnerability. Specifically, it maps the effects of disembodying legal personhood and notions of subjectivity in Western liberalism, noting in particular how they can lead to violent practices in law and politics which securitize physical and political bodies in pursuit of an ideal of invulnerability. Disembodiment is not only a modality of living which alienates embodiment from history, gender and relationality, but it also facilitates gendered forms of violence. While this project contests relations of invulnerability by rethinking embodied vulnerability, there are also important challenges for feminist scholars in foregrounding the body of women in criminal law. The interdisciplinary gender analysis presented here suggests that describing drug mules as vulnerable offenders alone cannot provide justice to these offenders because it can reify the logic of invulnerability. Thus, we need to understand what the modes of relations with the vulnerable body are and how these relationships to vulnerability are re-inscribed in legal, scholarly, and political discourse. Although vulnerability discourses can be totalized into existing norms of subjectivity in criminal law, namely feminized victims and masculinized agents, this project also gestures towards imagining vulnerability otherwise. This involves holding space for ethical ambiguity in the encounters between law and gender occurring in the context of neoliberal precarity and securitized drug policies.
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Livings, Ben. "A 'zone of legal exemption' for sports violence? : form and substance in the criminal law." Thesis, University of Warwick, 2016. http://wrap.warwick.ac.uk/89744/.
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This study examines the criminal liability that may be incurred by participants in contact sports for violence that results in injury to a fellow participant. For these purposes, I concentrate on boxing, rugby and soccer; sports that involve a level of physicality that risks, and regularly causes, injury. The violence that is intrinsic to their practice is in some senses archetypically criminal, and yet, that self-same violence is also constitutive of sports that are perceived to have enormous personal, social and cultural value, and which have been declared by the House of Lords to amount to ‘lawful activities’. A formal account of the criminal law of sports violence posits the consent of the participants as the primary determinant of the imposition of liability for acts of violence committed during the course of contact sports. In this thesis, I examine this formal account and propose that the substance of the lawfulness of sports violence needs to be understood in terms of its socio-historical development, and the sophisticated rule-systems and pluralistic regulatory backdrop against which modern sports operate. This thesis contributes a new understanding of the offences that pertain to sports violence, and the normative role and doctrinal function of the participants’ consent, in order to understand the way in which the criminal law accommodates violent sports practices. The thesis also suggests new ideas in relation to the ‘playing culture’ of sport and its relationship to the criminal law, and the role of prosecutorial discretion in effectively shaping the lawfulness of ‘legitimate sport’.
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Gurnham, David. "The ethics of judicial rhetoric : the role of liberal moral principles in law." Thesis, University of Warwick, 2004. http://wrap.warwick.ac.uk/1214/.
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This thesis is a study of the relationship between deontological liberal principles and consequentialism in legal rhetoric. The argument developed is that these supposedly separate bases for judgment are actually mutually defining in cases involving an apparent ethical dilemma. The content of a principle cannot be known a priori, since its interpretation gains its persuasive force from a calculation of the benefit and detriment of a potential decision. We argue that, in order to prevent the deontological authority of liberal principles from being undermined by such a mixing, consequentialist calculations are themselves made by appealing to an interpretation of principled arguments. The effect of this symbiosis of principle and consequential ism is that ethical problems are resolved in legal rhetoric by assigning conflicting parties a higher or lower status within a moral hierarchy that prioritises those that assimilate more closely to the liberal ideal of the reasonable, responsible individual. This assignation itself requires the weighing up the possible consequences of this or that interpretation of the relevant Principles and the 'facts' of the parties' moral status. The characterisation of judicial rhetoric as a narrative of what we might call moral consequential ism leads on to a deconstructive turn in the second half of the thesis. We seek to show that the relationship between principle and consequence is not simply one of binary opposition, but rather of undecidability. The implications of such a destabilisation of the line between apparently distinct concepts for political and ethical theory is recognised and addressed in the final chapters. We consider how deconstruction both poses dangers and also creates new possibilities for critique. The final move of the thesis is to consider the ethical implications of our critique of law's moral hierarchy. We argue that emphasising the undecidability of law's moral hierarchies allows for new perspectives on ethical problems.
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Arnull, Anthony. "The impact on the individual of the general principles of the law of the European Economic Community." Thesis, University of Leicester, 1987. http://hdl.handle.net/2381/10328.
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Ribeiro, Bruno Salles Pereira. "Análise crítica do direito penal secundário: investigação sobre a proposta de divisão do direito penal, à luz da dogmática e da política criminal." Universidade de São Paulo, 2013. http://www.teses.usp.br/teses/disponiveis/2/2136/tde-09122013-113509/.
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O presente trabalho tem por objetivo a análise da proposta de divisão do sistema jurídico-penal, com a criação de um direito penal secundário de características próprias, marcado pela não recorrência à pena privativa de liberdade e pelo estabelecimento de critérios materiais de seleção de condutas ilícitas. Para atingir mencionado desiderato foi feita uma análise das principais teorias que levaram ao direito penal secundário, a saber, direito penal de polícia, direito penal administrativo e direito penal de ordem. Também foi feito um estudo da evolução do tratamento do tema nos ordenamentos jurídicos alemão, português, espanhol e brasileiro, com enfoque nos critérios de alocação dos ilícitos entre os âmbitos de intervenção punitiva. Por fim, foram analisadas construções semelhantes às do direito penal secundário, procurando apontar suas semelhanças e diferenças. Após as conclusões sobre a construção teórica do direito penal secundário, pudemos nos direcionar para a proposição de uma remodelagem sistêmica dos mecanismos de intervenção punitiva do Estado, propondo, ao final, a partir da premissa central da necessidade de adoção de um direito punitivo geral, critérios materiais de alocação dos ilícitos entre os sistemas de intervenção punitiva do Estado, com base na estrutura da categoria da dignidade penal.The purpose of this paper is to analyze the proposal to divide criminal legal system, with the creation of a secondary criminal law system with particular traits, characterized by the absence of recourse to imprisonment and the establishment of material criteria for the selection of misconducts. In order to reach its main purpose, analysis of the main theories leading to secondary criminal law, namely the police criminal law, the administrative criminal law and the order criminal law, was conducted. In addition, a study on the evolution of the treatment of the subject at the German, Portuguese, Spanish, and Brazilian legal systems was performed, focusing on the criteria for the allocation of the misconducts among the spheres of punitive intervention. Lastly, similar constructions to the secondary criminal law were analyzed, in order to highlight their similarities and differences. Following the conclusions on the theoretical structuring of secondary criminal law, a systemic reshaping of punitive intervention mechanism was proposed, in a manner that, at last, considering the central premise of the need to adopt a general punitive law, the establishment of material criteria for sorting the misconducts among the punitive intervention systems, relying on the criminal legitimacy category.
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Harder, Sirko. "General principles in the law of damages : their uniform application to contract, tort and equity." Thesis, University of Aberdeen, 2006. http://digitool.abdn.ac.uk/R?func=search-advanced-go&find_code1=WSN&request1=AAIU213496.
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The rules governing the measure of monetary remedies in contract, tort and equity differ largely between the three areas. This thesis discusses the differences in relation to four issues. The first issue is remoteness of damage. Liability in negligence and many other torts is limited to loss that could, at the time of the tortious act, be foreseen as possible. Contract goes further and limits liability to loss that could, at the time of the contract, be contemplated as not unlikely. Equitable liability is not limited by remoteness considerations. The second issue is non-pecuniary loss. While tort shows a generous attitude towards the compensation of such loss, contract compensates non-physical distress and loss of reputation only where the prevention of such loss was "the object" of the contract broken. Authority for equity is sparse. The third issue is contributory negligence. Unreasonable conduct on the claimant's part that contributes to the occurrence of the wrong or the ensuing loss leads to a proportionate reduction in liability by virtue of the Law Reform (Contributory Negligence) Act 1945 in tort and in contractual actions for the breach of a duty of care co-extensive in contract and tort. Contributory negligence has no effect in other instances of contractual liability or in equity. The final issue is exemplary or punitive damages. They are presently confined to three categories of tortious behaviour: abuse of power by public servants, profit-seeking behaviour and statutory authorisation. The differences between contract, tort and equity generate problems where a claim can be based on more than one cause of action. This thesis challenges the present differences in relation to the four issues mentioned and suggests a uniform regime in each case.
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Eskauriatza, Javier Sebastian. "Does the 'jus post bellum' help practitioners to identify the law on transitional criminal justice in post-conflict Colombia?" Thesis, University of Birmingham, 2018. http://etheses.bham.ac.uk//id/eprint/8604/.
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Post-conflict law is an area of law that is a composite of a number of different legal categories. The fragmented nature of post-conflict law leads to a lack of clarity in relation to a number of different issue areas. These have been discussed under the rubric of ‘the jus post bellum’ concept which has attracted a considerable amount of attention from international lawyers. Its proponents argue that it is useful in terms of clarifying the law as it applies during transitions. Several theories of the jus post bellum can be identified. This thesis evaluates the practical and theoretical application of two jus post bellum theories in relation to child soldier perpetrators in transitional criminal justice in post-conflict Colombia.
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Pues, Anni Henriette. "A critical legal analysis of prosecutorial discretion at the International Criminal Court : towards more transparency, accountability, and legitimacy." Thesis, University of Glasgow, 2017. http://theses.gla.ac.uk/8431/.
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The Prosecutor is the gatekeeper at the ICC. Her discretionary decisions determine in which situations the Court will commence an investigation and who will be brought before the Court. The Prosecutor’s focus on Africa has led to severe criticism of alleged anti-African bias and an erosion of the Court's legitimacy. Against this background, this thesis examines the exercise of prosecutorial discretion at the ICC. It identifies the scope for procedural discretionary decisions at the key junctures of the proceedings, covering areas such as how to conduct a preliminary examination, when to commence an investigation, who to prosecute and which charges to bring. The analysis is based on the theoretical understanding that the legality of decisions is crucial, which is why the thesis analyses the legal limitations of the exercise of discretion to clearly determine its boundaries. However, legality alone is not sufficient to serve the aim of safeguarding and enhancing the legitimacy of the Court. It is argued that the Prosecutor is not entirely free, but bound by the main principles and aims represented in the Rome Statute. She must ensure that her decisions demonstrate impartiality, maximize the deterrence effect of the ICC, and respond to victims' interests. To achieve a positive effect on the legitimacy of the Court, it is also required that the Prosecutor deliberates on individual decisions and makes these decisions more transparent. This will provide routes to pragmatic mechanisms of accountability, beyond the limited possibilities in the Rome Statute to hold the Prosecutor formally to account. In this regard, the thesis also analyses the role of the gravity notion, a concept that gained increased prominence in the evolving practice of the Prosecutor, and of the interests of justice, a notion that has not once been used yet. Both are indeterminate concepts that equip the Prosecutor with the necessary flexibility to respond to a variety of very different scenarios that might occur within the jurisdiction of the Court. The thesis demonstrates that the acts of applying these concepts contain a type of interpretative discretion. For the gravity notion, however, the scope is very limited, does not allow any managerial considerations, and must strictly be geared towards consistency. While the interests of justice currently appear redundant, this thesis demonstrates how this concept can gain new importance for the completion of situations, one of the challenges ahead for the Court. Overall, this thesis aims to identify avenues by which the Prosecutor can contribute to turning the Court into a more responsive institution, striking a balance between the preservation of its independence and open interaction with its stakeholders.
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Karampassis, Stilianos. "The issues of the 'general good' and professional secrecy with regard to the Second Banking and the Money Laundering Directives." Thesis, University of Exeter, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.284624.
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Zorzetto, Silvia. "The analytic Philosophy de Umberto Scarpelli. From the analysis of the evaluative language to the principles of bioethics." Pontificia Universidad Católica del Perú, 2014. http://repositorio.pucp.edu.pe/index/handle/123456789/116479.
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It is a biographical article about Uberto Scarpelli and its main aim is to give a philosophical scheme of Scarpelli, commenting the most important aspects of his life, his main works and the itinerary of his thought. The article depicts as a transversal idea that for Scarpelli there is no side study between philosophy and the General Theory of Law; quite the contrary, both of them are always in complete joining and mutual feedback. That is the reason why the article shows a scarpellian sight of language analysis, epistemology, ethical deliberation and General Theory of Law.El presente trabajo es un artículo biográfico sobre Uberto Scarpelli. Tiene por objetivo principal proporcionar un mapa de la filosofía de Scarpelli, comentando los aspectos más importantes de su vida, sus principales obras y el itinerario de su pensamiento. El artículo muestro como idea transversal que, para Scarpelli, ningún estudio es lateral respecto de la filosofía y la teoría general del derecho, sino que, por el contrario, proceden siempre en estricta unión y mutua retroalimentación. Es por ello que el texto nos muestra la visión scarpelliana del análisis del lenguaje, de la epistemología, de la reflexión ética y de la teoría general del derecho.
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Harper, Sarah Catherine. ""Doing justice" versus "undoing injustice" : factors influencing the experience of engaging with the Criminal Justice System for survivors of child sexual abuse." Thesis, University of Glasgow, 2018. http://theses.gla.ac.uk/30836/.
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Purpose: This study aimed to explore factors that may influence the experience of engaging with the Criminal Justice System (CJS) for adult survivors of child sexual abuse (CSA), from the perspective of key informants. These informants offered expert perspectives on an under-researched topic, based on their in-depth experience of supporting a wide range of survivors of CSA through the legal process. Background: Although a more common experience than one might think, child sexual abuse (CSA) is an offence that is not often prosecuted. This is due to a range of reasons, including its significant impact on those abused, delayed disclosure, and a reluctance to engage in a legal process that has been described as “re-traumatising” for victims of sexual assault (Clark, 2010). In Scotland, this has led to significant comment about and concerted motivation to adapt the prosecution process to more effectively meet the needs of victims and improve their experience of engaging with the Criminal Justice System (CJS) (Scottish Courts & Tribunals Service, 2015). The purpose of this study is to examine in more detail the current CJS from the standpoint of those supporting survivors of CSA through it, to better understand its impact and how it might be better adapted to their needs. Method: Support professionals from the Crown Office and Procurator Fiscal Service (COPFS) and Rape Crisis Scotland were recruited. Eight ‘key informants’ with extensive experience in supporting survivors of CSA were interviewed regarding their perceptions of what factors influence survivor’s experiences of engaging with CJS. Thematic analysis was used to analyse the interview data. Conclusions: Two key themes were identified: ‘Justice: Not just what happens, but how’ and ‘Danger of getting it wrong: More harmful than helpful’. Themes emphasised the range of experiential factors which were perceived to affect survivors’ experience of the CJS beyond the legal verdict alone and the detrimental psychological impact associated with negative experiences of engaging with the legal process. Recommendations for practice and reform are outlined.
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Ghaibeh, Huda Julie. "The United Nations Global Compact's human rights principles| An analysis." Thesis, University of Colorado at Denver, 2014. http://pqdtopen.proquest.com/#viewpdf?dispub=1556855.
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This thesis aims to determine the effectiveness of the largest corporate social responsibility initiative, the United Nations Global Compact, in the protection of human rights by businesses. Certain scholars critique the Compact's human rights principles and voluntary aspect while others support it. The main critique is that the principles fail to provide adequate direction to businesses. However, my assertion is that the voluntary initiative's human rights principles are effective. I have relied on secondary literature in analyzing the paths of a number of signatory businesses, each from differing sectors, in addressing human rights. It appears that the vagueness of the principles serves a purpose for businesses of different industry types and contexts. In other words, my originally proposed thesis was strengthened after examining how various signatory businesses have sought to support human rights. Rather than turning the principles into a highly structured code of conduct for all businesses as the critics have argued, I argue that the principles should remain general and that more detailed direction must be developed for each individual business according to industry type, geographical location, size, and other particular circumstances.
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Seitz, Florian. "The infringement of prisoners' right to vote : an analysis of intentions and general principles in due consideration of recent judgements." Master's thesis, University of Cape Town, 2012. http://hdl.handle.net/11427/12663.
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Includes bibliographical references.The right to vote is the most important and often even the only possibility of citizens to participate in a democracy’s governance. Generally accepted democratic principles like the electoral equality and the objective to include all citizens who have acquired their full age and are of sound mind in the decision-making process demand that disenfranchisement may - if at all - only occur in very exceptional cases. However, laws infringing prisoners’ right to vote are widespread and differ greatly among established democracies: While some states do not impose any restrictions on the right of prisoners to vote, others (like many states in the USA) exclude most or all of their detainees from taking part in elections, sometimes even after their release.1 Even though this phenomenon pertains to core issues of democratic principles as well as central human rights aspects, it has not been subject to noteworthy public debate for a long time. Due to several decisions of national constitutional courts and the European Court of Human Rights (ECtHR) within the last decade, felony disenfranchisement has gained more attention among legal academics. Still, most of this literature is limited to the specific arguments which have been brought forward in the particular court procedures. From my point of view, a holistic analysis which seeks to give a general recommendation whether or not to grant prisoners the right to vote – and if so, what restrictions may still be feasible – must not only focus on a national context, but has to consider legal philosophic and political issues, too. The long grinding debate which is going on in the British Parliament about the amendments demanded by Strasbourg’s European Court of Human Rights (ECtHR) emphasises the practical necessity of such a study.
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Kangur, Andreas. "Can rules of criminal evidence be devised that would be uniform across jurisdictions?" Thesis, University of Glasgow, 2015. http://theses.gla.ac.uk/6388/.
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The thesis focuses on comparative criminal evidence law and sets out to explore whether it is possible to devise rules of criminal evidence that would suit different jurisdictions. This work should be treated as an exploratory project as it aims to find a suitable approach and then test it using three different rubrics of evidence law – evidence of prior convictions, hearsay evidence and standard of proof. Those rubrics in six different jurisdictions will be examined. The thesis first discusses the mainstream dichotomous approach to comparative criminal procedure and evidence, concluding that the inquisitorial-adversarial distinction has by today lost much of its descriptive power and was never meant to be a normative model. Instead, the author finds that all Western style jurisdictions today are concerned with accurate fact-finding and in order to facilitate accurate fact-finding, should take into consideration the cognitive needs and abilities of fact-finders. Since for the most part human cognition is universally the same, this psychology-based approach can serve as a foundation for evaluating the evidentiary regulation – and unless some extra-epistemic factors prevail, should guide legislatures towards optimizing and unifying their evidentiary regulation. Based on the recent studies in legal psychology, the author offers recommendations that would be workable in all sample jurisdictions. This is in part possible because empirical research tends to debunk often-held beliefs about professional judges being far superior fact-finders immune from the cognitive biases and emotional appeal usually attributed to jurors.
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Ворона, В. С., and V. S. Vorona. "Спеціальні засади призначення покарання окремим категоріям осіб : дисертація." Thesis, Харків, 2018. http://dspace.univd.edu.ua/xmlui/handle/123456789/9161.
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Ворона, В. С. Спеціальні засади призначення покарання окремим категоріям осіб : дис. ... канд. юрид. наук (д-ра філософії) : 12.00.08 / Володимир Сергійович Ворона; МОН України, Харків. нац. пед. ун-т ім. Г. С. Сковороди, МВС України, Харк. нац. ун-т внутр. справ. - Харків, 2018. - 229 с.Робота присвячена комплексному науковому дослідженню теоретичних і практичних проблем спеціальних засад призначення покарання окремим категоріям осіб. Вперше здійснено періодизацію розвитку законодавчого закріплення спеціальних засад призначення покарання від давніх часів до сьогодення. Сформульовано доктринальну дефініцію спеціальних засад призначення покарання окремим категоріям осіб як правил призначення покарання відносно певних суб’єктів, які законом виділяються в окремі групи в зв’язку з їх специфічними особистісними, соціальними, демографічними чи професійними ознаками.
The thesis is devoted to the complex scientific research of the theoretical and practical problems of special guidelines on sentencing certain categories of offenders. For the first time carried out a periodization of the development of legislative consolidation of the special guidelines on sentencing, from ancient times to the present, according to which allocated four periods. Formulated doctrinal definition of special guidelines on sentencing certain categories of offenders as rules of appointment of punishment in respect of certain entities which by law are allocated in a separate group due to their specific personal, social, demographic or professional characteristics.
Работа посвящена комплексному научному исследованию теоретических и практических проблем специальных начал назначения наказания отдельным категориям лиц. Впервые осуществлена периодизация развития законодательного закрепления специальных начал назначения наказания от древних времен до современности. Сформулировано доктринальную дефиницию специальных начал назначения наказания отдельным категориям лиц как правил назначения наказания в отношении определенных субъектов, которые законом выделяются в отдельные группы в связи с их специфическими личностными, социальными, демографическими или профессиональным признакам.
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Almohideb, Abdulrahman M. "Criminal procedures relevant to crimes of killing in the Kingdom of Saudi Arabia." Thesis, University of Glasgow, 1996. http://theses.gla.ac.uk/6868/.
Full textAbstract:
This thesis aims to present the contemporary legal criminal procedures in Saudi Arabia that are relevant to crimes of killing. The thesis is divided into five chapters; each chapter is divided into two or three sections; and every section contains various sub-sections. Part one in the first section of chapter one provides a general introduction to the criminal procedures, its establishment and objectives in Islamic law. Part two discusses the general essential elements that must exist in the analysis of every crime. The general divisions of crimes have been pointed out in this part, as well as importance of this classification in Islamic law. Section two of this chapter embodies two parts which reflect respectively the sources of criminal procedure, as the ground from which it derives its legal authority; in addition, it provides miscellaneous statistics that indicate the effect of Islamic criminal law on decreasing crime rate in Saudi Arabia. Chapter two consist of two sections in which crimes of killing are classified. Part one of the first section discuses the fundamental components of intentional killing; types of punishments imposed upon a murderer, and the infliction of the death penalty as aq'sas in Saudi Arabia. The contemporary legal methods and conditions to implement capital punishments in Saudi Arabia has been discussed in the second part of this section. The second section deals with unintentional crimes of killing which comprise quasi-murder and killing by mistake. The due punishments for such crimes have been detailed in the first part of this section. The Saudi legal system of blood-money has been elaborately discussed in the second part. Chapter three is divided into three sections, each section contains various parts. Part one and two in the first section concentrate on examining those crimes of killing that are committed by a group of people, who either directly or indirectly participated in the crime. The effect of circumstances of insanity, infancy and intoxication, on annulling criminal responsibility has been comprehensively discussed in the second section. The last section of this chapter focuses on examining the effect of certain extenuating circumstances, such as self-defence and defence of honour, upon criminal liability. Chapter four deals with the contemporary Saudi pre-trial criminal proceedings relevant to crimes of killing. The first section of this chapter comprises six parts. The discussion in these parts focuses upon the legal procedure of examining suspects, searching of private premises, and the rights of suspect during this stage of police investigation. Section two deals with the pre-trial legal procedure following the detection of crimes of killing. It also covers the legal process of pre-trial detention, release proceedings, and the rights of the detained person. Chapter five embodies three sections which provide a comprehensive discussion to the trial proceeding and the consequent procedure after the trial. This includes: the Saudi courts system; the rule of evidence for proving criminal cases; the procedures of hearing cases of crimes of killing; the rights of the accused during this stage; and the ensuing legal process required to implement the judgement.
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Salinas, Cerda Ania Carola del Carmen. "Guarding the gates : the essential role of a robust Pre-Trial Chamber in ensuring the International Criminal Court's impartiality, independence and legitimacy." Thesis, University of Glasgow, 2015. http://theses.gla.ac.uk/6420/.
Full textAbstract:
The Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) was conceived of as the Court’s gatekeeper and empowered in the Rome Statute to provide an essential counterbalance to the significant discretionary powers granted to the Prosecutor. This thesis analyses in detail the PTC’s powers at the different stages of the Court’s proceedings in which it is called to intervene – ie pre-investigation, investigation and pre-trial stages – and argues that, in general terms and save some limitations, the PTC has the necessary tools to carry out its function. In particular, the PTC has been empowered to prevent possible abuses of power and shield the Prosecutor from external pressures through the judicial review of his most critical discretionary decisions. By way of that judicial control, the PTC is meant to examine the rationale behind the Prosecutor’s decisions in order to guarantee that the exercise of discretion is not abusive or the result of improper political pressures. This is necessary to safeguard the legitimacy of the institution as a whole and to protect the rights of those that can be affected by the Court’s investigations and prosecutions. However, a systematic evaluation of the way in which these powers have been applied reveals that the PTC’s judges have adopted a rather cautious approach to their role, showing some reluctance to firmly scrutinise the Prosecutor’s exercise of discretion. As a result of the Court’s inherent limitations and the political climate in which it operates, there is a concrete risk that external actors may try to politicise the role of the Court, exerting political pressures on the Prosecutor. The adoption of a more proactive and firm role by the PTC will not only encourage a more transparent decision-making process by the Prosecutor, but will also urge cooperation and genuine investigations and prosecutions at the national level, therefore minimising the risk of the Court’s political instrumentalisation. Accordingly, this thesis argues that, for as long as the PTC boldly embraces its full powers, the ICC will function smoothly and strengthen its reputation as a fair and impartial means by which to obtain international criminal justice.
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Al-Mamari, S. "General principles of consumer protection in e-commerce trade : a comparative study between Islamic law and EU laws." Thesis, University of Exeter, 2019. http://hdl.handle.net/10871/36623.
Full textAbstract:
This thesis presents the concept of Sharia law and contrasts it with EU laws in the area of e-consumer protection. These two laws have been chosen as they are exercised in more than one country and do not develop their own juridical procedures other than the Common law. The overriding objective of this thesis is to examine the extent to which European Union laws are different from legislations that are influenced by certain principles of Sharia. In order to achieve the aforementioned objective, this thesis approached a number of main issues, namely: the effectiveness of EU legislation in protecting and safeguarding e-consumer rights, the efficiency of Sharia law in protecting and safeguarding e-consumer rights, and highlighting the essential differences between EU legislation and Sharia law in protecting and safeguarding e-consumer rights. The significance of this research lies in the fact that it rationalizes the changes and developments that have so far taken place in the two jurisdictions which dominate significant portions of the world and yet arise from completely different origins. The thesis identified certain procedures in the Sharia that secure the interest of consumers. In this regard, the concept of "Khiyar-al-Tadlis" is well-established in Sharia law and cannot be found in EU laws and, as a consequence, is highly recommended for e-consumer protection. Moreover, the choice-of-law conflict creates deficits in legal applications and the availability of security procedures for e-consumers. EU laws are significantly lacking when it comes to protection of online consumers across borders. This thesis focuses, specifically, on the recovery measures that both the EU and the Sharia law provide for e-consumers if they suffer any loss as a result of an online transaction and enable them to gain justified compensation. The study aims to provide policymakers with effective measures for preserving the rights of e-consumers and therefore promote electronic trade across different countries. Finally, this thesis will address the current inefficient aspects of e-consumer protection in both Sharia and EU laws and will attempt to propose a solution under which the rights of all concerned parties can be balanced.
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Thani, Ahmed Abdulla Farhan. "The projected Arab Court of Justice : a study to its draft statute and rules, with specific reference to the International Court of Justice and principles of Islamic Shariah." Thesis, University of Glasgow, 1999. http://theses.gla.ac.uk/1571/.
Full textAbstract:
The present thesis deals with the projected Arab Court of Justice (ACJ) as a regional court, expected to be created within the League of Arab States system. Chapter one deals mainly with the basic structure of the League of Arab States itself, its membership, its organs, the settlement of disputes, and the reasons that are delaying the creation of the ACJ and the role it will be expected to play in settling inter-Arab disputes. In the second chapter comprehensive information on the function of the judicial power in Islamic Shariah is presented, including the status of judges in Islam, their appointment, qualifications, independence and other issues related to them. Chapter three concentrates on the organisation of the projected ACJ, comparing its draft Statute with the Statute of the International Court of Justice (ICJ) and other regional international courts. The chapter will also show how far the Arab draftsmen have been influenced by principles and rules of Islamic Shariah, especially in matters relating to the qualification of judges. Furthermore, the chapter will discuss other points related to the organisation of the bench such as nomination of candidates, system of election, constituting chambers, appointing ad hoc judges etc. The fourth chapter explains in detail at the level of theory as well as of practice the role of Islamic Shariah as a source to be applied by the projected ACJ. The chapter points to the need to discuss the origins and fundamental conceptions of Islamic Shariah as a law capable to be applied by the projected ACJ. Chapter five continues with a discussion of the jurisdiction of the ACJ, and makes detailed reference to the concepts of jurisdiction ratione personae, ratione materiae and the function of the ACJ to give advisory opinions. The thesis considers whether the Arab drafters have developed the above terms or have simply adopted them as they exist in the Statute of the International Court of Justice. The conclusions summarise the findings of the Thesis, and are accompanied by some critical remarks.
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Armbruster, Néda. "La réception de règles de droit exogènes : l’exemple de la mise en jeu de la responsabilité sans faute de l’Etat du fait de ses actes normatifs en France et aux Pays-Bas." Thesis, Lille 2, 2012. http://www.theses.fr/2012LIL20019.
Full textAbstract:
L'objectif est d'analyser la jonction des principes généraux du droit au niveau européen. cette étude se limite aux principes généraux du droit à ces deux cultures juridiques, soit aux principes admis par la jurisprudence et s'imposant à l'administration et à ses rapports avec les particuliers. il s'agira ainsi de répondre à plusieurs questions dont : les principes généraux du droit tendent-ils réellement à converger ? faut-il déceler une uniformisation du droit sous l'influence des principes généraux de droits européens ou cela permet-il de mettre en avant que certains principes sont <> ? dans le cas contraire pourquoi certains principes restent-ils propres à certains systèmes juridiques ? ne faut-il pas voir dans les droits européens la possibilité de s'enrichir des principes généraux des droits d'origine extranationale ? mais également de partager les principes généraux du droit français ? /The aim is to analyze the junction of general principles of law at European level. this study is limited to the general principles of the right to these two legal cultures, to the principles accepted by the jurisprudence and imposing itself on the administration and its relations with individuals. it will thus be necessary to answer several questions, including: do general principles of law really tend to converge? Is it necessary to detect a uniformity of law under the influence of the general principles of European rights or does it make it possible to emphasize that certain principles are "universal"? if not, why do certain principles remain specific to certain legal systems? should we not see in European rights the possibility of enriched by the general principles of rights of extranational origin? but also to share the general principles of French law? /
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Taylor, Holly. "Evaluating criminal justice interventions in the field of domestic violence : a realist approach." Thesis, University of Birmingham, 2014. http://etheses.bham.ac.uk//id/eprint/5240/.
Full textAbstract:
This thesis evaluates the combination of two criminal justice interventions in the field of the domestic violence. The intervention, termed a Domestic Violence Court Advisory Service (DVCAS) throughout the thesis, comprises two elements –Independent Domestic Violence Advisers (IDVAs) and Specialist Domestic Violence Courts (SDVCs). Both initiatives were instituted in the wake of much criticism of the treatment of domestic violence in the Criminal Justice System (CJS). To date, however, there has been no rigorous evaluation of the combined efficacy of these initiatives – in particular, regarding their impact on the number of offenders brought to justice. This thesis examines how a DVCAS can increase the successful prosecution of domestic violence offences through increased victim participation, better court outcomes and a wide and varied use of sentencing options. The thesis highlights ‘what works and why’ in prosecuting domestic violence offences, and in so doing identifies a number of outcomes to suggest that certain practices in the police and CPS do not always support the DVCAS in achieving its aims, in particular, through ineffective investigations, inappropriate safeguarding responses and poor prosecution practices.
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Feng, Ying (Olivia). "The development of an instrument to measure individual dispositions towards rules and principles, with implications for financial regulation." Thesis, University of Glasgow, 2014. http://theses.gla.ac.uk/5300/.
Full textAbstract:
The main focus of this PhD project is the development and validation of a psychometric instrument for the measurement of individual dispositions towards rules and principles. Literature review and focus groups were used to generate insights into the reasons why individuals prefer rules and principles. On the basis of that review, an initial item pool was created covering the conceptual space of dispositions towards rules and principles. The final instrument consists of 10 items, 5 items each for the rules and principles subscales. The psychometric analysis suggested that it is valid and reliable. The instrument has sound predictive power and was able to significantly predict individuals’ behavioral intentions in relation to rules and principles across contexts. I found there were gender and ethnic differences in the relationship between dispositions towards rules and principles scores and behavioural intentions. This PhD is relevant to an emerging literature in behavioural accounting research that examines how practitioners’ personal characteristics and styles affect financial reporting practice.
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DE, ANDRADE MARIANA CLARA. "The use of customary international law and general principles by the Appellate Body and the crisis in WTO Dispute Settlement." Doctoral thesis, Università degli Studi di Milano-Bicocca, 2020. http://hdl.handle.net/10281/264122.
Full textAbstract:
La ricerca esamina l'uso della consuetudine internazionale e dei principi generali nel meccanismo di risoluzione delle controversie (DSM) dell'Organizzazione mondiale del commercio (OMC). Il suo obiettivo è duplice. In primo luogo, dal punto di vista delle fonti del diritto internazionale, obiettiva comprendere come questa giurisdizione internazionale identifica e applica queste fonti di diritto, che a lungo sono state oggetto di dibattito dottrinale a causa del loro contenuto e portata poco chiari. Fornendo una panoramica della metodologia impiegata dall'Organo d'Appello dell'OMC (AB) nel ricorrere a tali fonti, questo studio offre la pratica dei giudici dell'OMC e il suo contributo al dibattito sulla consuetudine internazionale e sui principi generali. Il secondo obiettivo è comprendere l'influenza che il ricorso alla consuetudine e ai principi generali, fonti di diritto esterne all’OMC, ha sulla giurisdizione del meccanismo di risoluzione di controversie dell’OMC, cosi come sulle accuse espresse da alcuni membri sull’ativismo giudiziario dalla parte dell’AB.
Il Capitolo 1 definisce il quadro teorico per lo sviluppo della ricerca. Ciò fornisce un chiarimento terminologico del significato di "principi generali" e "consuetudine internazionale" ai fini di questa ricerca. Inoltre, rivisita anche il dibattito sul significato di giurisdizione e legge applicabile nel DSM dell'OMC. Infine, descrive le critiche nei confronti delle pratiche interpretative dell'AB al fine di identificare possibili parametri di riferimento per la valutazione di ciò che può essere considerato "superamento giudiziario". Analizzando tutti i rapporti AB emessi fino ad oggi, è possibile classificare quattro campi in cui vengono utilizzate queste fonti di diritto internazionale generale: diritto dei trattati, norme sulla responsabilità dello Stato, principi procedurali e principi sostanziali. La tesi è divisa in capitoli corrispondenti (Capitoli 2-5).
I Capitoli da 2 a 5 sono ciascuno diviso in due parti. La prima parte di questi capitoli descrive la metodologia utilizzata dall'AB quando ricorre a queste fonti. La prima parte di ogni capitolo descrive ed esamina: la base giuridica indicata per ricorrere ad essi nell'ambito del sistema giuridico dell'OMC, il metodo di identificazione dei principi generali e della consuetudine internazionale nelle relazioni, le funzioni di questi concetti nel sistema giuridico dell'OMC e se esiste accordo o disaccordo tra le parti in merito al contenuto di tali fonti. La seconda parte dei capitoli 2-5 studia le reazioni dei membri in merito all’uso della consuetudine e dei principi generali nella prassi dell’AB ed esamina in che modo l'uso di queste fonti influisce sul mandato dell'AB. Il potenziale impatto della consuetudine internazionale e dei principi generali sulla giurisdizione dell'AB varia a seconda dei campi di queste fonti di legge.
Infine, dai precedenti capitoli, il Capitolo 6 sviluppa conclusioni generali sull'uso dei principi generali e della consuetudine dalla parte dell'AB. In primo luogo, esamina sistematicamente i risultati dei precedenti capitoli per trarre conclusioni sulla metodologia seguita dall'Organo di Appello rispetto all'origine, la natura e la portata di tali fonti. In secondo luogo, il Capitolo 6 propone possibili parametri per guidare l'uso dei principi generali e della consuetudine internazionale nel meccanismo di risoluzione di controversie dell’OMC al fine di evitare rivendicazioni di attivismo giudiziario.This research studies the use of customary international law and general principles in the Dispute Settlement Mechanism (DSM) of the World Trade Organization (WTO). Its objective is two-fold. First, from the viewpoint of the sources of international law, it aims at understanding how this international jurisdiction identifies and applies these sources of law, which for long have been the object of doctrinal debate due to their unclear content and scope. By providing an overview of the methodology employed by the WTO Appellate Body (AB) when resorting to these sources, this study offers the practice of WTO adjudicators and its contribution to the debate of customary international law and general principles. The second aim is to understand the influence that the resort to customary international law and general principles, which are non-WTO sources of law, has on the jurisdiction of the WTO DSM and on the claims expressed by some Members that the AB has indulged in judicial overreach. Chapter 1 sets the definitional and theoretical framework for the development of the research. It provides a terminological clarification of the meaning of ‘general principles’ and ‘customary international law’ for the purposes of this research. Moreover, it also revisits the debate of the meaning of jurisdiction and applicable law in the WTO DSM. Finally, it describes the criticisms against the AB’s interpretative practices in order to identify possible benchmarks for the assessment of what can be considered ‘judicial overreach’. Analysing all AB reports issued to date, it is possible to categorize four fields in which these sources of general international law are used: treaty law, rules on state responsibility, procedural principles and substantive principles. The thesis is divided into corresponding chapters (Chapters 2-5). Chapters 2 to 5 are each divided into two parts. The first part of each chapter describes the methodology employed by the AB when resorting to these sources. It aims to describe and examine: the legal basis indicated for resorting to them within the WTO legal system, the method of identification of general principles and customary international law in the reports, the functions of these concepts in WTO legal system, and whether there is agreement or disagreement between the disputants with regard to the content of these sources. The second part of each chapter studies the Members’ reactions upon circulation of relevant AB reports in Dispute Settlement Body meetings and examines how the use of these sources impacts the mandate of the AB. The potential impact of customary international law and general principles on the jurisdiction of the AB varies according to the fields of these sources of law. Finally, from the foregoing chapters, Chapter 6 draws general conclusions on the use of general principles and customary international law by the AB. First, it systemically examines the findings of the previous chapters to draw conclusions regarding the methodology the Appellate Body follows, and the origin, nature and scope of these sources. Second, Chapter 6 proposes possible parameters to guide the use of general principles and customary international law in WTO adjudication to avoid claims of judicial overreach.
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Hobson, Clark Ashley. "Interpretivism and the four principles approach to biomedical ethics : judicial decision making in cases with an inherently ethical content." Thesis, University of Birmingham, 2015. http://etheses.bham.ac.uk//id/eprint/5652/.
Full textAbstract:
Judges are often reluctant to interact with medical ethics when deciding cases with an inherently ethical content. They sometimes even transfer decision-making responsibilities to medical ethics groups. At times this unwillingness is based on the presumption that medical ethics will be able to perform an effective regulatory function. The problem is there is a wide range of ethical discourse, both official and unofficial; so much it can cancel itself out. Therefore, as a regulatory tool for the medical profession, medical ethics is insufficient for the job. Judges, on the other hand, could arbitrate between competing ethical conclusions. Indeed, there is a strong argument they \(should\). This thesis addresses this timely and complex issue. Judges need to be willing and able to rely on the soundness of their own moral convictions to recognise and deal appropriately with the inherent ethical content in certain cases. In order to do this, they need a decision-making framework that recognises the ethical nature of judicial decision-making, so as to provide judges with confidence in applying moral principles and medical ethics. This thesis will provide such an integrated framework.
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Ford, George T. IV. "Media Influences and Student Attitudes Toward Law Enforcement Figures Within Northeast Tennessee." Digital Commons @ East Tennessee State University, 2013. https://dc.etsu.edu/etd/1167.
Full textAbstract:
The purpose of this study is to analyze student attitudes toward various law enforcement figures and to obtain a better understanding of public relations, police effectiveness, and media influences in Northeastern Tennessee. This literature review provided a preliminary analysis of related works to advance the accuracy in conducting and examining future studies. The fields that deserve the most analysis are the underlying dimensions associated with public attitudes about police effectiveness, the media’s impact on public attitudes toward police, and the individual, external, and contextual variables that influence public attitudes toward police.
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Anderson, Donald. "Sedition, violence, theft and disorder : crime, protest and the use of the criminal law in Wellington during the General Strike of 1913." Thesis, University of Canterbury. Department of History, 2001. http://hdl.handle.net/10092/4265.
Full textAbstract:
This thesis investigates the connection between industrial protest and the
crime committed in Wellington during the 1913 General Strike. The possibility
that the ways in which the criminal law was implemented changed in
response to the strike has also been examined. The crimes focused upon
include violence, theft, anti-state actions, seditious utterances, verbal abuse,
threatening behaviour and desertion. Crimes committed in Wellington during
and in the two years before the start of the strike have been researched. In
all, 1757 criminal charges for violence, theft or potential anti-state actions are
studied.
Some comparisons are made with violence, crime, prosecutions and policing
during the 1890 Maritime Strike and the 1951 Waterfront Dispute.
International research on crime, protest, prosecutions, policing and industrial
disputes is also discussed to provide a basis for the New Zealand case study.
Six hypotheses from the international research are tested against the data
gathered on Wellington. Three of these hypotheses concern crime as protest
by strikers. The other three hypotheses focus on the uses made of the
criminal law during industrial disputes (through arrests, prosecutions, verdicts,
sentences, the refusal of bail, and jury trials).
Offences by strikers against their employers and against strike-breakers are
found to have been surprisingly infrequent in Wellington in late 1913. Crime
as protest by strikers and sympathisers against special constables was very
common. There is no evidence, however, that theft was used as a form of
protest during the strike.
The response of the police to the 1913 strike and the related disorder was to
intensify their efforts to control certain types of offences, in particular, socially
threatening "crimes" associated with the strike. Overall, the police displayed a
surprising degree of restraint in making arrests. The analysis of conviction
and sentencing patterns indicates that the Wellington judiciary responded
firmly to the period of disorder and heightened social tensions, but that this
response was neither malicious nor indiscriminate. The criminal law was not
used as a means to remove (through conviction and imprisonment) all
"undesirables" or potential "troublemakers" from the streets of Wellington.
Many of those who were convicted of strike related offences received longer
terms of imprisonment and larger fines than were imposed prior to the strike.
These sentences were intended to deter potential offenders and prevent
further disorder, as well as to punish those caught. The penalties were firm
but not as severe as the law allowed.
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McCue, James. "The responsibility of young people and the vicarious responsibility of their parents: A vignette study investigating the influence of perpetrator age and victim harm on public attributions of criminal and general responsibility." Thesis, Edith Cowan University, Research Online, Perth, Western Australia, 2016. https://ro.ecu.edu.au/theses/1767.
Full textAbstract:
Following the notorious James Bulger murder and several subsequent cases, the media has increasingly reported on children under the age of 10 engaging in serious and violent criminal behaviour. The media have reported claims that children understand crime, and its consequences, at a younger age compared to previous generations due to revolutionary advances in technology and education. Consequently, there has been a tendency for the media to report punitive public reactions to youth crime, focused on harsher penalties at younger ages. Under Australian law children under the age of 10 fall below the minimum age of criminal responsibility (MACR), and are considered doli incapax (i.e., they lack the capacity to form criminal intent). Recent developmental psychological research indicates that children understand concepts of right and wrong from approximately six years of age. However, they do not fully develop the ability to manage the emotional aspects of decision making until approximately 25 years of age, placing them at risk of engaging in impulsive and ill-considered decision making without considering the possible consequences of their actions. Accordingly, there is a fundamental gap between media/public attributions and psychological research. Another related and contentious policy issue regarding the MACR, is the degree of vicarious responsibility parents should assume for their child(ren)’s criminal behaviour.
Utilising an attribution theoretical perspective and Hart’s (1968) construct of responsibility, the current research project investigated public attributions (n = 274) regarding the criminal and general responsibility of young people, the vicarious criminal and general responsibility of parents. A 3 x 3 factorial experimental design was employed to measure the influence of perpetrator age (7, 11 or 14 years) and level of harm caused to the victim (low, moderate, high) on attributions of the criminal responsibility of young people and their parents (i.e., the child/parent being processed and punished by the criminal justice system), as well as the general responsibility of young people and their parents (i.e., the child/parent being held accountable for the harm caused via civil remedies and alternatives to justice). Attributions were measured using quantitative and qualitative methods.
The results indicated that attributions of criminal responsibility are significantly predicted by the level of harm caused to the victim, and demonstrated that the public are prepared to attribute criminal responsibility to children as young as seven years of age when a high level of harm is caused. It was found that the public support the use of restorative and diversionary justice measures to deal with young people. Whilst they are willing to hold children responsible, the public do not support holding parents ‘criminally’ responsible for their children’s actions. Instead, the public favour civil remedies such as the victim and their parents paying compensation.
As well as being consistent with existing literature regarding attributions of responsibility, the findings contribute new insights regarding the ability of the public to differentiate between concepts of criminal responsibility and general responsibility when forming attributions. When provided with information regarding a specific example of youth crime, the public support efforts to intervene with young people and their family to reduce the risk of reoffending. The public do not necessarily desire punitive responses to youth crime, such as a lower MACR or vicarious parental criminal responsibility.