Dissertations / Theses on the topic 'History and philosophy of law and justice'
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1
Noriega, Christina R. "Rawlsian Foundations for Justification and Toleration of Civil Disobedience." Scholarship @ Claremont, 2013. http://scholarship.claremont.edu/scripps_theses/232.
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Though ultimately seeking more just law, civil disobedience still entails the breaching of a law. For this reason, most theories hold that people who practice civil disobedience must be willing to accept the legal consequences of their actions. On the other hand, a nation that is truly committed to justice will recognize that its constitution and legal order may in some ways fall short of perfect justice. In this thesis, I defend Rawls’s theory of civil disobedience as unique in its capacity for justification and even government toleration. Appealing to a shared conception of justice, Rawlsian civil disobedients are able to ground their actions in the same principles to which the state is committed. I argue that Rawls’s shared conception of justice is further substantiated when read in the light of his later theory of the overlapping consensus of comprehensive doctrines. I ultimately conclude that civil disobedience construed in the Rawlsian sense ought to receive some degree of toleration by the state, and particularly by constitutional states which maintain a formal commitment to justice in the protection of rights and intentional design of government institutions.
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Heimburger, Robert Whitaker. "A theological response to the "illegal alien" in federal United States law." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:43010cbe-32a9-4ecd-abcf-cf57f729bbd5.
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Today, some twelve million immigrants are unlawfully present in the United States. What response to this situation does Christian theology suggest for these immigrants and those who receive them? To this question about the status of immigrants before the law, the theological literature lacks an understanding of how federal U.S. immigration law developed, and it lacks a robust theological account of the governance of immigration. To fill this gap, the thesis presents three stages in the formation of the laws that designate some immigrants as aliens unlawfully present or illegal aliens, drawing out the moral argumentation in each phase and responding with moral theology. In the first stage, non-citizens were called aliens in U.S. law. In response to the argument that aliens exist as a consequence of natural law, Christian teaching indicates that immigrants are not alien either in creation or for the church. In the second stage, the authority of the federal government to exclude and expel aliens was established, leaving those who do not comply to be designated illegal aliens. To the claim that the federal government has unlimited sovereignty over immigration, interpretations of the Christian Scriptures respond that divine sovereignty limits and directs civil authority over immigration. In the third stage, legal reforms that were intended to end discrimination between countries allowed millions from countries neighboring the U.S. to become illegal aliens. These reforms turn out to be unjust on philosophical grounds and unneighborly on theological grounds. While federal law classes many as aliens unlawfully present in the United States, Christian political theology indicates that immigrants are not alien, the government of immigration is limited by divine judgment, and nationals of neighboring countries deserve special regard.
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Curtis, Robert A. "Justice as mutual advantage." Thesis, University of Oxford, 1992. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.335067.
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Pitt, Peter. "Rough justice: Predicaments of philosophy, history, and world politics." Thesis, Pitt, Peter (2014) Rough justice: Predicaments of philosophy, history, and world politics. PhD thesis, Murdoch University, 2014. https://researchrepository.murdoch.edu.au/id/eprint/28979/.
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In this dissertation I explore some recent philosophical attempts to address questions related to global justice and world politics, principally through the work of Amartya Sen and Thomas Pogge. My discussion focuses on some central intractable puzzles, and I argue that global justice is best seen as a predicament – an unanswerable, impossible question which cannot be readily dismissed, but also as a topic of deliberation and contestation which, once predicated, requires a depth and seriousness of response which confounds conventional disciplinary and conversational boundaries.
The disciplinary decorum of liberal political philosophy minimises attention to the historical context of the theorist, along with evidence and interpretive argument about history and social theory. Writers such as Pogge and Sen have pushed against those constraints, attempting to develop more empirically informed and practically oriented accounts. However, I argue that they have underestimated the need for a deeper engagement with history, and for a more radical challenge to implicit understandings of the character of the world. Without a more robust engagement with the power-infused politics of the real world, the abstraction of political philosophy will continue to produce accounts which are inadequate to the dimensions of domination, the character of human suffering, and the dynamic and strategic character of normative argument.
To counteract the bias towards conciliation and public reason in recent liberal political philosophy, I emphasise a history of deeply connected reciprocal engagement, cooperation, and struggle. This orientation allows a better sense of the power and persistence of the rhetoric of justice, and particularly its capacity to motivate social and political movements of resistance to domination. Liberal humanitarianism unduly privileges the beneficiaries of past injustice. A perspective of rough justice is needed – attuned to the dialectic between facticity and evaluative aspiration which the concept of justice has long embodied, and recognising claims to rough equality, fair treatment, and reparation – on the basis of a broadly connected, deeply reciprocal, and deeply conflictual history.
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Piser, Gabriel A. "Appalachian Anthropocene: Conflict and Subject Formation in a Sacrifice Zone." The Ohio State University, 2016. http://rave.ohiolink.edu/etdc/view?acc_num=osu1469120301.
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Kolers, Avery Harman. "Grounds of global justice." Diss., The University of Arizona, 2000. http://hdl.handle.net/10150/289219.
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Currently available political theories all fail to explain the nature or justification of territorial claims. My dissertation fills these gaps. In chapter one I distinguish between property and territory, explaining the inapplicability of property theories to territorial claims. Chapter two raises a challenge to egalitarian and cosmopolitan theories of global justice. The central claim of the chapter is that local democracy is an essential part of global justice, but that cosmopolitan theories cannot give due weight to local democracy. In addition, cosmopolitan theories are not entitled to the conception of equality or distributive justice to which they appeal; their failure in this respect is due to their failure to consider the distribution of land, which scuttles comparability and, with it cosmopolitan distribution principles. In contrast, there is good reason to think that a turn toward effective localized governance would promote democracy and the quality of life of all people. Chapters three, four, and five constitute the core of the dissertation. Chapter three isolates the particular sort of claim I hope to elucidate: prima facie primary rights to territory. Chapter three also defines what I call the "problem of relevance": the problem of finding political principles that could even speak to the issue of connecting peoples to places. Such principles are not forthcoming from mainstream political philosophy. Chapter four solves this problem with a geographically influenced conception of cultures. Chapter five defends the value of cultures so conceived, by arguing that stable cultural membership is an important component of individual freedom, and so merits protection and promotion through political and economic institutions. Finally, chapter six aims to situate the theory of prima facie primary rights to territory within the context of an "internationalist" theory of global justice. Such a theory takes from cosmopolitan theories a sophistication about global institutions and their effects on distributive schemes and power relations. But the theory also takes from culture-based theories an appreciation for the value of communal life and local, grassroots control of the institutions under which we live.
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Da, Costa Rosa. "Ethics and obligations of justice in international relations: The implications of Rawls's Law of Peoples." Thesis, University of Ottawa (Canada), 1995. http://hdl.handle.net/10393/10521.
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Braithwaite, Murray James. "A dynamics theory of justice : Nietzsche, Holmes, and self-organizing criticality." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 2000. http://www.collectionscanada.ca/obj/s4/f2/dsk2/ftp03/NQ48609.pdf.
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Malan, Yvonne. "Justice and the law : a perspective from contemporary jurisprudence." Thesis, Stellenbosch : Stellenbosch University, 2000. http://hdl.handle.net/10019.1/51807.
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Thesis (MA)--University of Stellenbosch, 2000.ENGLISH ABSTRACT: This thesis examines the relationship between law and justice. Firstly, it is argued that the concept of justice tends to be defined too narrowly as distributive justice or as a mechanism to maintain social order. It is argued that Jacques Derrida's understanding of justice not only gives a richer and broader understanding of the concept, but also on its complex relationship with the law. Lastly, some of the possible implications for jurisprudence (with specific reference to Critical Legal Studies, Critical Race Theory and Drucilla Cornell) are examined.
AFRIKAANSE OPSOMMING: Hierdie tesis ondersoek die verhouding tussen geregtigheid en die reg. Daar word eerstens geargumenteer dat geregtigheid te maklik gedefinieer word as distributiewe geregtigheid of as In meganisme om sosiale orde te bewerkstellig. Daar word geargumenteer dat Jacques Derrida se verstaan van die konsep nie aileen 'n breer en ryker verstaan moontlik maak nie, maar dat dit ook fokus op die komplekse verhouding met die reg. Laastens word sommige van die moontlike implikasies vir regsfilosofie (met spesifieke verwysing na Critical Legal Studies, Critical Race Theory en Drucilla Cornell) ondesoek,
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Taylor, A. J. "Uncertain Justice: The Ute Jurisdiction Case and Conflicting Directions in Federal Law." DigitalCommons@USU, 1995. https://digitalcommons.usu.edu/etd/1997.
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Questions of jurisdiction over Indian lands between tribal and state governments constitute some of the most vexing problems in federal Indian law. The Ute jurisdiction case captures, in one instance, the complexities that surround this important body of law. Many cases concerning Native American jurisdiction rights center on disputed interpretations of antiquated federal laws. In the Ute case, both the State of Utah and the Ute Indian tribe contested the meaning of a series of congressional acts that opened Ute lands to white settlement at the turn of the century. The protracted litigation that marked the Ute case revealed many of the inconsistencies and contradictions that plague the federal courts in their attempts to resolve jurisdiction controversies. This thesis examines the particulars of the Ute ii lawsuit and, using it as a vehicle, investigates the limits of the law in deciding Indian/white jurisdiction disputes.
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Newhouse, Marie E. "Kant's Typo, and the Limits of the Law." Thesis, Harvard University, 2013. http://dissertations.umi.com/gsas.harvard:10819.
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This dissertation develops a Kantian philosophical framework for understanding our individual obligations under public law. Because we have a right to do anything that is not wrong, the best interpretation of Immanuel Kant's Universal Principle of Right tracks the two ways--material and formal--in which actions can be wrong. This interpretation yields surprising insights, most notably a novel formulation of Kant's standard for formal wrongdoing. Because the wrong-making property of a formally wrong action does not depend on whether or not the action in question has been prohibited by statute, Kant's legal philosophy is consistent with a natural law theory of public crime. Moreover, because the law can obligate us only by establishing a universal external incentive to obey its commands, statutes that impose only fines on nominal violators do not constrain our lawful options. Instead, if they are otherwise just, such statutes must be regarded as rightful permissive laws, according to which we may incur liabilities through our voluntary choices.
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Cline, Erin May Baird Robert M. "Kongzi, Rawls, and the sense of justice in the Analects." Waco, Tex. : Baylor University, 2006. http://hdl.handle.net/2104/4212.
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Nour, Sckell Soraya. "La justice cosmopolite : histoire des principes et enjeux contemporains." Thesis, Paris 10, 2012. http://www.theses.fr/2012PA100194/document.
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La justice cosmopolite présuppose la justice dans l’ordre interne d’un État ainsi que la justice internationale, en se différenciant aussi bien de l’une que de l’autre pour s’interroger sur le juste et l’injuste qui porte sur l’être humain en tant que tel et en tant qu’individu singulier, au-delà de son statut en tant que habitant, ressortissant ou citoyen d’un État, prenant ainsi aussi en compte les générations futures et l’environnement. Être cosmopolite est une condition à dimension individuelle et collective, liée à la construction de soi (un soi cosmopolite), à la manière de penser et de vivre dans sa dimension quotidienne (l’action sous un angle cosmopolite), ainsi qu’à une réflexion sur ce qu’est le juste et l’injuste cosmopolite, sur l’émergence des groupes sociaux qui exigent le cosmopolitisme et sur la normativité des institutions nationales, internationales et supranationales qui veulent le réaliser. Ainsi, la notion de justice cosmopolite se révèle être un objet commun au champ de la philosophie, des sciences politiques, de la sociologie, des sciences de la culture, de la psychologie sociale ainsi que du droit. Nous analysons d’abord les enjeux de la justice cosmopolite tels qu’ils ont été formulés aux XVIII et XIX siècles chez Hobbes, Kant, Hegel et Alexander von Humboldt, en confrontant ses idées avec les débats contemporains; ensuite, les nouveaux problématiques de la justice cosmopolite qui se dessinent au XX siècle avec Freud, Kelsen, la Théorie Critique et Bourdieu; et enfin, quelques enjeux fondamentaux contemporains de la justice cosmopolite : les droits humains, le droit humanitaire, le droit des minorités et l’espace public mondialCosmopolitan justice presupposes justice in the order of a State as well as international justice, but differs from these two forms in that it questions the just and unjust concerning human beings as such and as a unique individual, beyond one’s status as a resident, national or citizen of a State, and also takes into account future generations and the environment. Being cosmopolitan has an individual and collective dimension related to the construction of the self (a cosmopolitan self), to one’s way of thinking and living in its everyday dimension (action from a cosmopolitan standpoint) and a reflection on what is just and unjust cosmopolitanism, the emergence of social groups that require cosmopolitanism and the normativity of national, international and supranational institutions that want to achieve it. Thus, the notion of cosmopolitan justice proves to be a common object in the field of philosophy, political science, sociology, cultural studies, social psychology and law. This thesis first analyzes the challenges of cosmopolitan justice as they were formulated in the eighteenth and nineteenth centuries by Hobbes, Kant, Hegel and Alexander von Humboldt, comparing their ideas with contemporary debates (Part I). It then analyzes new issues regarding cosmopolitan justice that emerged in the twentieth century with Freud, Kelsen, Critical Theory and Bourdieu (Part II). Finally, an analysis is offered on fundamental contemporary issues of cosmopolitan justice, such as human rights, humanitarian law, the rights of minorities and global public space (Part III)
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Enriquez, Ana Elizabeth. "Seeking Justice, Repairing Reputations: Defamation Cases in the Ely Act Book, 1374-1382." Thesis, Harvard University, 2010. http://nrs.harvard.edu/urn-3:HUL.InstRepos:26515050.
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This thesis examines the Ely Act Book, the record of the consistory court of Ely from 1374 to 1382. It uses the defamation cases from the Act Book as a lens to examine the influence of the court. After a brief discussion of the Act Book itself – its survival, its construction, and its layout, the thesis explores the Ely Consistory Court as an agent of the larger canon law system. It shows that the court enforced canon law, addressing the legal and pastoral concerns of the Church in England, and that the bishop of Ely at the time – Thomas Arundel – was committed to those goals. The second chapter examines the court from the perspective of the people who worked and sought justice in it. It first shows that the court’s emphasis on order and learning demanded the employment of bureaucrats like the man who wrote the Act Book, Robert Foxton. The court provided both a market for their skills and an opportunity to advance their careers. Then the thesis shows that the court also benefited the litigants. It offered both sides an opportunity for legal representation. For the plaintiffs, it provided a judicial solution to disputes, but at the same time it protected defendants with a strong standard of proof, and awarded court costs to the falsely accused.Special Concentration
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Grégoire, Marie Annik 1971. "Liberté, responsabilité et utilité : la bonne foi comme instrument de justice contractuelle." Thesis, McGill University, 2008. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=115645.
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This thesis outlines the guiding principles of obligations law in Quebec, more particularly its contractual component. We are trying to establish a model of analysis that will seek to define and legitimize the precepts of justice that should guide judicial intervention in contractual relationships.As part of this study, we identify certain principles that are fundamental in the theory of contract: notably, commutative justice, contract commutability, subjective rights and legitimate interests. We establish the relationship between each of these basic concepts to conclude that to be consistent with the principles of commutative justice, contract commutability shall not be based on a monetary equivalent of benefits but on the respect of a standard based on peaceful coexistence of rights and interests. It consists therefore of a normalization of contractual relations which ceases to be purely subjective. This finding leads to several inferences: the addition of the circumstances of the execution and termination of the contract, rather than simply its creation, to the possibilities of judicial review, a better legitimization of such review and the recognition of the principle of good faith as a privileged instrument for a fairer contractual commutability. Moreover, the last part of our thesis is devoted to examining judicial practice interventions based on good faith in order to illustrate the principles expressed in the study.
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Brown, Albert E. "Particularism in Justice." University of Cincinnati / OhioLINK, 2008. http://rave.ohiolink.edu/etdc/view?acc_num=ucin1204652909.
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Seifried, Michael Matthew. "THE LAW’S CLAIM TO JUSTICE: NORMATIVITY AND THE MORALITY OF THE LAW -BRANDOM, KORSGAARD, AND SOPER-." Miami University Honors Theses / OhioLINK, 2005. http://rave.ohiolink.edu/etdc/view?acc_num=muhonors1115405137.
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Pino-Emhart, Alberto. "Apologies and damages : the moral demands of tort law as a reparative mechanism." Thesis, University of Oxford, 2015. http://ora.ox.ac.uk/objects/uuid:5c1de602-c8a4-4de0-aa6c-4f4e8ec975be.
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This thesis seeks to justify on moral grounds the existence of tort systems. The argument is that corrective justice is necessary but not sufficient to succeed at this task. Corrective justice is necessary because it is the only principle that can adequately justify the bilateral structure of tort litigation between claimants and defendants, and full compensatory damages as the default remedy in most tort systems. However, it is argued that the critiques to corrective justice lead us to the important lesson that tort law is more than just corrective justice. Three gaps of corrective justice are identified: the equivalence between gains and losses, the definition of what counts as a tort, and the diversity of remedies. The thesis offers a solution to these problems based on the values of restorative and distributive justice. It is argued that restorative justice plays an important role in tort law, providing an apologetic framework for material compensation (the message that money awards communicate), but especially for symbolic remedies, such as apologies, nominal damages, non-pecuniary damages, punitive damages, and gain-based damages, solving the diversity of remedies problem. This restorative framework of tort remedies is compatible with corrective justice. Distributive justice also plays an important role in tort law. Even though corrective and distributive justice are conceptually separate concepts, in the context of tort law they cannot be separated. It is argued that the definition of what counts as a tort involves a distributive task. Following this argument, the thesis argues that there is a distributive uneasiness in tort law, because tort law protects some interests regardless of how they were acquired, and regardless of whether their distribution amounts to an unfair distribution of resources. It is suggested that the distributive mechanism of insurance can solve, or at least ameliorate, this uneasiness.
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Fatic, Aleksandar. "Punishment and restorative crime-handling : a social theory of trust." Phd thesis, Canberra, ACT : The Australian National University, 1995. http://hdl.handle.net/1885/143619.
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The general aim of this work is to examine the main features of some of the
most influential contemporary theories of criminal justice, to look at their
conceptual and methodological relative advantages and shortcomings, and
to try to glean in them a direction for the devising of a more promising,
more optim ising way of accounting for crime and deviance, as well as for
prospects of successful social control. The general contention of the work is
that the key question to be asked in this respect is what value ought to lie at
the base of all such explanatory attempts. The general answer, with which
the 'restorative theory of crime-handling', espoused herein, deals, is that
this value ought to be trust. All those arrangements which can generally be
characterised as trust-enhancing appear to be optimising as well, and to
contribute in a constructive way to the resolution of conflicts. Punishment,
on the other hand, does not appear to be trust-enhancing; on the contrary, it
seems to play an essentially trust-degrading role in most contexts, and thus
creates an atm osphere and consequences which do not suggest the
possibility of both effective and humane social control mechanisms.
It has been the aim of theories of social control for decades to avoid
excessive punitiveness and maximise the consensus which is built around
the particular policies to that effect. Yet, most such theories have ended up
neglecting the role of trust, and em phasising justice instead. Another
contention of the arguments contained herein is to the effect that justice
ought not to play such a prom inent role in any theory of social control
which aspires to be trust-enhancing. Following the unavoidable directions
of argum ents advanced over decades, the argum ents herein deal with
theories such as 'retributivism ' and 'utilitarianism ', 'com m unitarianism '
and 'republicanism ', thereby bordering on political, and even on sociological theory. Yet, they do not remain on the level of presenting argum ents for
and against these theories - the value of what is argued here against such
theories, if there is any value in it, lies in its contribution to the fuller
illum ination of the real role of trust in a social theory of crime-control
which would derive strongly from the popular 'conflict-resolution' theories,
but which, at the same time, would seek to avoid some of their greatest
calam ities. To w hat extent this w ork m ight have succeeded in
accomplishing that end, however, is, of course, up to the reader to judge.
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Hilly, Laura Ellen. "Experienced justice : gender, judging and appellate courts." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:d3f64853-898a-4c01-a17e-819d6a095f52.
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The under-representation of women in the senior appellate judiciary in common law jurisdictions remains an enduring problem. Much has been written about the lack of women’s participation in the judiciary and what strategies, if any, should be undertaken in order to resolve this persistent problem. However, this thesis takes a step back to ask a broader question: what impact does gender diversity have upon judicial decision making in appellate courts? It seeks to answer this question by engaging feminist standpoint theory to assess the experiences of men and women judges from three common law jurisdictions: England, South Africa and Australia. Through a series of interviews conducted with members of the senior judiciary in these jurisdictions in 2012 and 2013, this thesis explores the extent that interviewees consider that gendered experiences impact upon their own judging, and judging within the dynamics of collegiate appellate courts. This thesis concludes that while it is not possible to pinpoint one particular ‘contribution’ or ‘impact’ that gendered experiences have upon judging, it is nonetheless generally considered by those interviewed to be an important part of the judicial decision making process in several subtle, yet important, ways. Because of the considerable role that diverse gendered experiences play in judicial decision making, appointments processes should be sensitised to the need for diversity of experience and alive to the danger of ostensibly neutral appointment criteria devaluing diverse experiences, particularly the experiences of women in the law.
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Balchin, Andrew Timothy. "The justice of the peace and county government in the East Riding of Yorkshire, 1782-1836." Thesis, University of Hull, 1990. http://hydra.hull.ac.uk/resources/hull:3760.
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Swanepoel, Paul Arthur Albertus. "Indifferent justice? : a history of the judges of Kenya and Tanganyika, 1897-1963." Thesis, University of Edinburgh, 2010. http://hdl.handle.net/1842/5848.
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This thesis examines the history of the judges of Kenya and Tanganyika between 1897, when the first British court was established in Mombasa, and 1963, when Kenya gained independence. The formation of judicial identities and the judiciary’s role within the colonial state are the main themes. The recruitment process into the Colonial Legal Service is discussed. Legal recruitment was both unique and problematic, mainly because there was a shortage of vacancies for newly-qualified barristers. Many were forced to seek employment elsewhere, but for those fortunate enough to secure positions within the barristers’ profession the financial rewards were substantial. This led to fears that second-rate barristers who were unable to make a living in Britain applied to serve in the colonies as legal officers. As a consequence, the length of applicants’ professional experience became an important factor for recruitment officials. Aspects of judges’ backgrounds are systematically analysed in order to produce a profile of the type of judge who served in the two territories during the colonial period. Judges were among the most mobile of colonial officers and typically served in four or more territories during their colonial careers. These factors shaped their collective identity. At the same time, they partly determined their attitudes towards the various laws they were called on to administer. In setting out the structure of the courts and the laws that were in force, a number of cases are discussed in order to demonstrate judicial attitudes over time. Two chapters focus on Tanganyika during the interwar period, illustrating divides between the administration and the judiciary regarding the administration of justice. Based on memoirs and personal papers, the professional lives of two judges are traced in order to gauge their views on the political events that surrounded them. The final two chapters focus on Kenya in the 1950s. The testimony of advocates is used as a means of inquiring into the characters and attitudes of the judges they appeared before. It provides an impression of the legal profession in late colonial Kenya, as both advocates and judges alike defined their professionalism with reference to the legal profession in Britain. The focus then shifts to judicial decisions made during the Mau Mau rebellion between 1952 and 1959, with particular emphasis being placed on the attitudes and professionalism of the judges of the Court of Appeal for Eastern Africa. The thesis offers a new interpretation of the judiciary’s place within the colonial state; by arguing that as a result of remaining part of the barristers’ profession in Britain, it suggests that colonial judges found it more difficult to adapt to the realities of functioning within the colonial state than members of other branches of the Colonial Service. This discord contributed to the emergence of a distinct judicial identity in the colonies.
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Luth, Margreet J. "Emotions in court : should the criminal justice process be concerned with the offender's inner feelings?" Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:0c48e482-6c50-413a-9a5e-dbdca8c7d3d0.
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This doctoral thesis aims to provide an answer to the question of why the criminal law should be concerned with the emotional response of the offender. Emotions have important instrumental aptness, such as the capacity to reveal a person's values to himself. Emotional obligations can exist within friendship, and even between strangers when the basic duty of respect has been breached. Emotions therefore have important roles to play in connection to wrongful acts between fellow citizens. The emotions that are the most relevant to the committing of a wrong are guilt and shame. The thought content of guilt is responsibility for a wrong, while the thought content of shame focuses on a weakness of the self. In response to a wrong, guilt feelings distance the wrongdoer from the moral falsehood that was implicit in the offence, restoring relations with society. Shame might have similar beneficial effects, but it might also tie the wrongdoer closer to a personal weakness (which is only indirectly related to the wrong) and might therefore weaken the relationship with himself and society. Preventing undesirable behavior is an aim of criminal law. Good criminal law should aim to persuade offenders to endorse the legal rule that was flouted by the offence. The law is not a suitable basis for citizen's emotional obligations, but emotions are particularly capable of allowing an offender to properly recognise certain reasons for obeying the law, such as moral reasons and reasons of respect for law. Guilt feelings in a setting of victim-offender mediation are very promising in this respect, while shame and humiliation run the risk of distancing the offender from his regard of himself as a moral person and society at large.
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Musson, Anthony Joseph. "Public order and law enforcement in England, 1294-1350 : the local administration of criminal justice." Thesis, University of Cambridge, 1993. https://www.repository.cam.ac.uk/handle/1810/272579.
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Shapiro, Matthew Abraham. "Enforcing respect : iberalism, perfectionism, and antidiscrimination law." Thesis, University of Oxford, 2012. http://ora.ox.ac.uk/objects/uuid:ee83edc5-162c-42ca-92d8-498a09725d5b.
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Can contemporary liberalism justify antidiscrimination law? The question seems impertinent until we consider contemporary liberalism’s commitment to limited government. Once we do, we realize that contemporary liberals may not complacently assume that their theories justify antidiscrimination law simply because discrimination based on race or sex is so obviously wrongful. Rather, they must scrutinize antidiscrimination law just as they do other regulation of individual conduct. Providing such scrutiny, this thesis argues that three of the most prominent contemporary liberal doctrines of political legitimacy—John Rawls’s “political liberalism,” an antiperfectionist version of the “harm principle,” and Joseph Raz’s “liberal perfectionism”—all fail to justify core applications of antidiscrimination law, applications that we intuitively consider perfectly legitimate. In light of this failure, contemporary liberalism faces a dilemma: it must jettison either its commitment to comprehensive, uniform antidiscrimination regimes or its antiperfectionism and overriding commitment to personal autonomy. This thesis argues for the latter course by providing an account of the wrongfulness of discrimination based on race or sex that condemns all instances of the conduct. According to this account, discrimination is wrong because acting on discriminatory intentions is wrong. More specifically, by taking another person’s race or sex as a reason to treat her less favorably than one would treat people of other races or the other sex, one fails to respect her as a person, to regard her as a being of ultimate value. Unlike contemporary liberal accounts, this account is fully perfectionist, since it defines discrimination in terms of the intentions of discriminators, and the intentions of discriminators in terms of their attitudes, which partly constitute their moral characters. So long as we remain committed to antidiscrimination law in its current form, we must attend to discriminators’ characters. And to attend to discriminators’ characters, we must be willing to espouse perfectionism.
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Saccone, Giuseppe Mario. "History as rhetoric in Hobbes' dialogue of the Common Laws and the rise of modern philosophy." Thesis, Hong Kong : University of Hong Kong, 2000. http://sunzi.lib.hku.hk/hkuto/record.jsp?B22050449.
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Wynyard, Julia Claire. "The literary property market: the philosophy, nature, and history of copyright law." Thesis, Boston University, 2003. https://hdl.handle.net/2144/27806.
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Boston University. University Professors Program Senior theses.PLEASE NOTE: Boston University Libraries did not receive an Authorization To Manage form for this thesis. It is therefore not openly accessible, though it may be available by request. If you are the author or principal advisor of this work and would like to request open access for it, please contact us at open-help@bu.edu. Thank you.
2031-01-02
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Diener, Keith William. "A Defense of Soft Positivism: Justice and Principle Processes." unrestricted, 2006. http://etd.gsu.edu/theses/available/etd-04172006-125357/.
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Thesis (M.A.)--Georgia State University, 2006.Title from title screen. Andrew Altman, committee chair; Andrew J. Cohen, William Edmundson, committee members. Electronic text (75 p.) : digital, PDF file. Description based on contents viewed Apr. 17, 2007. Includes bibliographical references (p. 73-75).
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Lauer, Rena. "Venice's Colonial Jews: Community, Identity, and Justice in Late Medieval Venetian Crete." Thesis, Harvard University, 2014. http://dissertations.umi.com/gsas.harvard:11520.
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This dissertation offers a social history of the Jews of Candia, Venetian Crete's capital, by investigating how these Jews related to their colonial sovereign, their Latin and Greek Christian neighbors, and their diverse co-religionists in the fourteenth and fifteenth centuries. Latin ducal court records, Hebrew communal ordinances, and notarial materials reveal the unique circumstances of Venetian colonial rule on Crete, including the formalized social hierarchy dividing Latin and Greek Christians, ready access to the Venetian justice system, and Venetian accommodation of pre-colonial legal precedents. Together, these elements enabled and encouraged Jews--individuals and community alike--to invest deeply in the institutions of colonial society. Their investment fostered sustained, meaningful interactions with the Latin and Greeks populations. It even shaped the ways in which Jews engaged with one another, particularly as they brought their quotidian and intracommunal disputes before Venice's secular judiciaries. Though contemporary religious authorities frowned upon litigating against co-religionists in secular courts, people from across the spectrum of Candiote Jewry, from community leaders to unhappily married women, sought Venetian judicial intervention at times.History
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Parsley, Stephen. "Rethinking Legal Retribution." Digital Archive @ GSU, 2011. http://digitalarchive.gsu.edu/philosophy_theses/98.
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In this paper I discuss retributivist justifications for legal punishment. I argue that the main moral retributivist theories advanced so far fail to support a plausible system of legal punishment. As an alternative, I suggest, with some reservations, the legal retributivism advanced by Alan Brudner in his Punishment and Freedom.
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Calhoun, Allen D. "Necessitas : a theological history of taxation." Thesis, University of Aberdeen, 2019. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=240701.
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The thesis begins by asking why American tax policy is both attracted to and repelled by the idea of justice. Accepting the invitation of mid-twentieth-century economist Henry Simons to acknowledge that tax justice is a theological concept, the thesis seeks to excavate theological doctrines of taxation throughout Christian history in a way that can answer the presenting question. After analyzing the confusions in contemporary American tax policy (Chapter One), the thesis argues that Christian theology relativized property interests (the moral category most closely related to taxation). Taxation came to express different interests simultaneously and balanced them, while the idea of necessitas (need) emerged as the fulcrum of that balance (Chapter Two). The thesis develops the themes incipient in the early history by highlighting three salient theological moments. Thomas Aquinas clarified his predecessors' doctrines of property, resolving the tension between communal and private property through the interplay of natural and positive law (Chapter Three). In Thomas' account, the positive law of private ownership yields to the natural law substrate of communal property at the boundary between need and superabundance. Taxation can serve to implement that balance. The redistributive logic of Martin Luther's thinking extended to his political theology, as most clearly expressed in his "Preface to the Ordinance of a Common Chest" (Chapter Four), while John Calvin invoked the idea that economic inequality puts in motion both the circulation of goods and the need for redistribution of resources (Chapter Five). By way of conclusion, the thesis suggests a possible narrative connecting early modern to contemporary views on taxation. In the theological account, taxation's balancing function "legitimates" it. Modern tax theory, on the other hand, represents in some ways a return to the Greco-Roman model of tax "justification" instead of legitimacy.
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Kirby, Joshua Thomas. "Natural law in the Encyclopédie (1751-1772)." Thesis, University of Manchester, 2014. https://www.research.manchester.ac.uk/portal/en/theses/natural-law-in-the-encyclopedie-17511772(55b121a8-3e77-4be9-8f04-291d640c5cb2).html.
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Despite long-standing recognition that the constellation of ethical and political ideas developed by the seventeenth-century Natural Law School played an important part in the development of Enlightenment thought, the relationship between the two remains a fertile area of research in intellectual history. Filling a lacuna in existing scholarship, this thesis contends that central tenets of the ethical and political philosophies developed by the Natural Law School were appropriated by the more liberal and progressive contributors to the Encyclopédie ou Dictionnaire raisonné des Sciences, des Arts et des Métiers (1751-1772); which is frequently considered to be the summa of Enlightenment thought, and emblematic of the conflict between the new ‘philosophical spirit’ and the traditional hierarchies, institutions, and values of the ancien régime. It argues that by establishing the loi naturelle and natural rights of the individual as the foundation of both ethics and politics in many of its articles, the Encyclopédie questions the certainty and validity of Catholicism as the basis for both, and that it therefore played an important role in undermining the moral authority of the Church as well as the political authority of the State. In particular, it asserts that the more liberal and humanitarian contributors to the project put the central tenets of Natural Law thinking into practice, in order to tackle and propose reform of what they perceive to be some of the worst injustices in contemporary society, namely with regard to the related questions of slavery and luxury. For those encyclopédistes who believe in universal rights and the loi naturelle, both the slave trade and the attitude of their contemporaries to luxury seem to embody values very different to those they wanted to promote; in their eyes both are representative of a society in which self-interest and the satisfaction of individual passions are valued over and above any consideration for the needs, welfare, and rights of others.
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Sempill, Julian Andrei. "Making law about power." Thesis, University of Oxford, 2015. https://ora.ox.ac.uk/objects/uuid:a5ffd843-dbad-44c5-b963-bca59da66f6a.
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During the seventeenth and eighteenth centuries, the inhabitants of some parts of Europe and the North American colonies were confronted with proto-state institutional arrangements. In certain cases, they responded ambivalently. That ambivalence is at the heart of what I will call the 'limited government tradition'. The tradition's adherents thought that long historical experience, not to mention the events of their own times, provided ample evidence of the corrupting effects of power on those who wield it. Power-holders, left to their own devices, are likely to succumb to the temptations of power by exercising it arbitrarily. Where they are able to do so comprehensively and systematically, the upshot is tyranny. How, then, to ensure that state power is constituted in a manner that is inhospitable to tyranny? The tradition envisaged a range of measures, including a distinctive vision of 'the Rule of Law'. The Rule of Law would both define and enforce certain limits on state power. This study argues that the tradition's hostility to political absolutism is based on moral foundations which apply with equal force to economic power. The tradition ought to examine the modern constitution of economic power to determine whether it is hospitable to arbitrariness and tyranny. If such an examination is undertaken, we learn that modern economic power poses the kind of moral dangers that the tradition's Rule of Law project is designed to combat. However, the tradition assumes that it need not treat economic power as even a potential target of the Rule of Law. I will call that assumption the 'Consensus'. This study's first major aim is to explain the origins and stubbornness of the Consensus. Its second major aim is to persuade readers that the Consensus is mistaken: the tradition must regard economic power as, at least, a potential target of the Rule of Law.
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Yong, Caleb Hoe-Kit. "Justice, legitimacy, and movement across borders : a political theory of international migration." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:7f94a135-778d-45cd-acdf-e5e15adba7f1.
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Existing moral reflection on immigration law and policy is caught in an impasse between (1) proponents of an individual right to free international migration and (2) proponents of a state’s right to control its borders. In Chapter 1, I examine arguments supporting an individual right to free international migration. I show that the case for this putative right cannot be settled solely by considering the strength of individuals’ interest in being able to cross international borders according to their choice. Rather, at a crucial point, the argument for an individual right to free migration turns on the truth of a particular conception of global justice. In Chapter 2, I examine arguments supporting a state’s right to control its borders. I contend that these arguments do not seek to defend the substantive justice of restrictive immigration policies, but rather the legitimacy of processes of political decision-making by which states unilaterally determine their own immigration policies. Abandoning this right-versus-right paradigm, I recast the debate by focusing on two distinct questions: (1) the question of justice in immigration, which substantively evaluates immigrant admission policy; and (2) the question of the legitimacy of immigration law enacted by procedures responsive only to states’ internal political decisions. I further propose that in articulating principles of justice in immigration, we should first develop a conception of global justice which will provide the background for our evaluation of immigration policy. In Chapter 3, I develop and defend a conception of global justice I call cooperation-based internationalism. I argue that co-citizens are joint participants in a scheme of cooperation which provides them with the social goods they need to lead autonomous lives. They therefore owe each other special duties of social justice. In addition, I argue for a duty of assistance which applies among all human persons globally. This duty requires developed states to assist developing states in establishing minimally just institutions. In Chapter 4, I develop a conception of justice in immigration against the background of cooperation-based internationalism. I argue that there is no requirement for states to allow open immigration. Nevertheless, I argue that co-citizens owe each other duties which impose significant moral constraints on immigration policy: states must (1) allow for family unification; (2) eschew policies that select immigrants based on criteria that unjustly call into question the fitness for citizenship of certain current members; (3) regulate labour immigration so that all current citizens benefit equally unless unequal gains benefit worse-off citizens. The duty of assistance is also imposes constraints on immigration policy. Developed states should (4) avoid immigration policies which cause brain drain harmful to international development and (5) admit and resettle refugees. In Chapter 5, I turn to the distinct question of the legitimacy of unilaterally-enacted immigration law. I argue that the application and enforcement of immigration law counts as a coercive exercise of political power which stands in need of justification. I examine the consent and natural duty of justice theories of political legitimacy, concluding that these influential theories cannot establish the legitimacy of immigration law. I conclude by considering the implications of the illegitimacy of immigration law for the evaluation of irregular migration.
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Bemmer, Jacqueline. "The early Irish law of pledging." Thesis, University of Oxford, 2016. https://ora.ox.ac.uk/objects/uuid:dbde1343-66d9-4ade-b601-eb4518ccc646.
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This thesis investigates the law of pledging as presented in the early Irish laws and draws connections to its relations within the overall system of security. At the centre of my research stands the question what pledges Irish law recognised and how their application was determined, so as to provide a paradigm for the law of pledging in its entirety. A pledge is usually a movable, material object of symbolic and economic worth that is given to another person as a security deposit for an outstanding obligation. The main findings of this thesis are a first paradigm of the law of pledging and a methodological and contextual categorisation of all types of pledges that opens doors for future research into property law. The combined discussion of pledges, hostages and sureties offers the reader insight into a triple method of security and its differences. Moreover, the close relationship between given pledges and distrained pledges is unravelled for the first time. Of further note is the comparative investigation into pledging. Therein, the reader is presented with how pledges are used in Welsh, Salic, Lombard, Visigothic, and Burgundian law. The objective is to offer the reader a view into the possibilities of pledging and to provide a framework against which the Irish evidence can be probed, which reveals how sophisticated and attentive to detail the Irish laws were. Finally, a translation of the primary source text 'Bretha im Fuillemu Gell' (Judgements concerning Pledge-interests) is made available to the reader in the Appendix.
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Farooqi, Nadeem U. "Retributive Theory’s Restorative Corollary." Scholarship @ Claremont, 2015. http://scholarship.claremont.edu/cmc_theses/1076.
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According to retributivism, what justifies punishment is a wrongdoer's desert. Critics argue that retributivists fail to provide sufficient justification for punishment. Herbert Morris offers the type of justification critics demand, providing an account of punishment that: 1) values autonomy, and 2) appeals to the principle of fairness. Punishment, in this account, restores equilibrium of benefits and burdens with respect to autonomy. Since punishment largely ignores the autonomy of the victim, however, punishment alone seems unable to ensure justice. In order to provide a more complete account of justice, I contend that one must be committed to retributivism and restoration. Indeed, restoration of the victim’s autonomy may be understood to be part of a completed deployment of the rationale for punishment.
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Ibrahim, Bilal. "The evolution of the rule of law : the origins and function of legal theory." Thesis, McGill University, 2005. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=98935.
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The thesis examines the origins and function of legal theory ( usul al-fiqh) within the context of the development of early Islamic law. I argue against the depiction of the development of law as a series of compromises between traditionalism and rationalism. Rather, by evading the demands of traditionalism, law evolved into a complex doctrinal entity rooted in the social structures of third-century Abbasid society. This revision of the development of law provides a context to evaluate early works of legal theory. Moreover, in context of my analysis of the development of law, I attempt to explain the emergence of legal theory as an independent discipline and its function within the greater structure of law.
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Ulrich, Roberta. "Justice Delayed: A Sixty Year Battle for Indian Fishing Sites." PDXScholar, 1996. https://pdxscholar.library.pdx.edu/open_access_etds/5106.
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The Army Corps of Engineers promised in 1939 that it would provide six fishing sites totaling 400 acres for Indian fishermen to replace 40 sites that would be flooded by the pool behind Bonneville Dam on the Columbia River. The agreement with the Warm Springs, Yakima and Umatilla tribes and Columbia River Indians also included construction of living quarters, boat launches, drying sheds and sanitary facilities. Only five sites were ever acquired and drying sheds and sanitary facilities were built on only two. This paper traces the delays through war, congressional appropriations, negotiations over sites, law suits, construction of new dams, disagreements between federal agencies and the tribes and between tribes, and slow moving federal agency processes. The U.S. Army Corps of Engineers broke ground in late 1995 on the first of 31 sites totaling 3 3 5 acres that will finally fulfill the commitment to the tribes in 2002. The tracing is done in the early years almost entirely through government correspondence and documents. In later years, the major sources are newspaper articles and government documents, including court files. The paper does not find a single cause for the extraordinary delay in fulfilling promises. Rather, it concludes that a number of events, attitudes and people had a part in creating delays at different times during the six decades. World War II caused the first major delay. Later causes included disagreements about locations, lack of appropriations, disputes over what facilities were to be included and slow government procedures.
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Kam, Ann K. "Are Crossover Youth "Slipping Through the Cracks?": The Philosophy, Policy, and Practice of Dual Jurisdiction in Juvenile Justice." Scholarship @ Claremont, 2012. http://scholarship.claremont.edu/cmc_theses/326.
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Since the mid-1980s, California's juvenile justice system has been struggling to address two phenomena: crossover youth and the policy of dual jurisdiction. Crossover youth are children who are simultaneously involved in the child welfare and juvenile justice systems; in conjunction, the policy of dual jurisdiction is a policy that permits juvenile courts to assume collaborative jurisdiction over crossover youth's child welfare and juvenile justice cases. Between 1989 and 2004, the system's actors adhered to California Welfare & Institutions Code (WIC) § 241.1, which prohibited the policy of dual jurisdiction. As a result, the system's actors assigned crossover youth to either the child welfare or juvenile justice system, and these children did not receive proper treatment. However, in January 2005, the California state legislature amended WIC § 241.1 to incorporate Section (e), which is also known as the policy of dual jurisdiction. Subsequently, the system's actors now have the option to assign crossover youth to both the child welfare and juvenile justice systems, and these children can receive holistic services from both systems. Currently, approximately two southern Californian counties implement the policy of dual jurisdiction. This thesis argues that the implementation of dual jurisdiction is necessary as it serves in the best interests of crossover youth by addressing the issue of disproportionate minority contact, decreasing the rates of juvenile recidivism, and increasing the availability of rehabilitative services. This thesis also uses preliminary field research to demonstrate the policy of dual jurisdiction's benefits and to encourage more counties to adopt this policy.
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Mckee, Jessica. "Ghosts, Orphans, and Outlaws: History, Family, and the Law in Toni Morrison's Fiction." Scholar Commons, 2014. https://scholarcommons.usf.edu/etd/5071.
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This dissertation explores Toni Morrison's most prevalent motifs: the ghost, the orphan, and the outlaw. Each figure advances a critique of dominant narratives, specifically those that comprise history, family, and the law. In Chapter One, I argue that Morrison's ghost stories contrast two methods of memory, one that is authoritative and another that is imaginative, in order to counter the official renderings of history. Her ghosts signal forgotten aspects of American history and provide access to another storyline--one that lies in the shadows of the novel's principal narrative. This chapter compares the ghosts of Love and Home in order to show how Morrison uses ghosts as conduits of a subversive individual and communal memory. In my second chapter, I assert a reading of Morrison's orphans as blues figures. They attest to the destructive effects of race, class, and gender oppression, which render her characters biologically and culturally orphaned. I conclude this chapter by comparing Paradise and A Mercy to show how Morrison's orphaned characters posit an alternative model of kinship that is built from the shared project of liberation. In Chapter Three, I examine Morrison's treatment of the law and its foil--the outlaw. I argue that Morrison foregrounds criminality in the absence of the law and its apparatuses (courts, police) in order to subvert the social institutions that give rise to the ghost and the orphan. I compare the crimes at the heart of Tar Baby and Jazz in order to posit another notion of justice operating in Morrison's fiction. When looked at together, Morrison's triptych threatens the coherence of governing ideologies and offers a meditation on the transformative possibilities of narrative.
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Vlahovic, Denis. "The sovereignty of the lawcode in Aristotle /." Thesis, McGill University, 2002. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=38527.
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In contrast with the procedural orientation of Athenian law in his day, Aristotle thinks that the lawcode should include principles which explain the rules of the lawcode and guide the interpretation of these rules in difficult cases. It should be determined by majority vote whether the decisions and proposals of political experts are consistent with the principles of the lawcode. Aristotle's views on practical explanation support his views on political deliberation. Someone has a techne rather than mere empeiria if he can give an account of the principles of an art and is able to explain the results of his deliberations in the art in terms of the principles. Such explanation does not have the same status as apodeixis in the epistemai, in that such an explanation cannot demonstrate that a conclusion follows necessarily from the principles of the art. However, a person who has experience in the art is able to evaluate deliberative options based on such arguments.Aristotle has an account of practical intellection which, like Plato's, is theory-based. Aristotle's account is an adjustment of Plato's account in the light of Isocrates' criticisms of Plato. Aristotle combines the accounts of Plato and Isocrates---the emphasis of the one on explanation and the emphasis of the other on practical principles. Aristotle's views on practical intellection allow him to solve a problem associated with Plato's proposals in the Laws, which resemble in important respects Aristotle's own proposals. Plato intends in the Laws to introduce an arrangement on which the polis is governed by non-philosopher citizens educated by the lawcode. However, because of his views on practical intellection, Plato is forced to put the 'Nocturnal Council' in charge of 'preserving the laws'. Because of his views on practical intellection, Aristotle can accept that the majority can be in charge of preserving the law. Aristotle's views on practical intellection also allow him to say that one ought to spell out the principles of the lawcode and privilege them in the interpretation of the law---which is different from the Athenian, procedural approach to the law---even though no universally true claims are possible on practical issues.
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Marier, April M., and Alex Alfredo Reyes. "Incarceration and Reintegration: How It Impacts Mental Health." CSUSB ScholarWorks, 2014. https://scholarworks.lib.csusb.edu/etd/26.
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ABSTRACT
Background: Previous criminal justice policies have been non-effective leading to overpopulated prisons and unsuccessful reintegration. There is a lack of effective supportive and/or rehabilitative services resulting in high rates of recidivism and mental health implications. Objective: This study investigated the perceived impact that incarceration and reintegration with little to no supportive and/or rehabilitative services has on the mental health status of an individual. The emphasis was on participant perception and not on professional reports because of underreporting and lack of attention to mental health in the criminal justice system. Methods: Focus groups in the Inland Empire and Coachella Valley were held to gather preliminary data used to develop the survey for this study. The survey was distributed to 88 male and female ex-offenders over the age of 18 who were no longer on probation or parole. Secondary data from United Way 211 and California State Reentry Initiative was collected to report current trends of supportive and/or rehabilitative services. Results: Incarceration was found to negatively impact perceived mental health status, but reintegration was not. Supportive and/or rehabilitative services continue to be rarely offered and accessed, but when accessed, perceived mental health status is better. Supportive and/or rehabilitative services are more readily available. People who are using these services are improving their quality of life, becoming productive members of society, and preventing recidivism. Conclusions: A paradigm shift is currently under way to reduce recidivism by improving supportive and/or rehabilitative services during incarceration and reintegration. Many offenders are receiving services as an alternative to incarceration, recidivism rates are being reduced, and ex-offenders are becoming productive members of society. The field of social work is an integral part of reentry services and should continue advocating for policies and services that support reintegration efforts at the micro and macro level.
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Buffington, Nancy Jane. "From freedom to slavery: Robert Montgomery Bird and the natural law tradition." Diss., The University of Arizona, 1998. http://hdl.handle.net/10150/282827.
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This dissertation explicates the rhetoric of liberty and slavery in the novels of Robert Montgomery Bird (1805-54). Bird, now largely forgotten and ignored, was prolific, popular, and at the center of Philadelphia culture and national politics from the 1830s until his death. His work represents a particularly clear intersection of political ideology and fiction at a time of cultural growth and conflict. Like many of his contemporaries, Bird saw his fiction as fulfilling a patriotic mission as he attempted to define and defend the nation's history, emergent identity, and contemporary political agenda. It is this mission, evident in his countless meditations on rights and rebellion, freedom and slavery, captivity and bondage, that I explore. Despite repeated scenes of unjust captivity, Bird's eloquent celebrations of liberty, ultimately work to deny the freedoms they evoke, rationalizing instead the conquest of indigenous populations, slavery, and national expansion. This analysis of Bird's rhetoric of freedom is grounded in an exploration of the natural law tradition. I trace the evolution of this philosophy from 17th-century England to its conservative manifestations in antebellum America. Within this context, Bird's conservative reworking of terms such as "freedom," "slavery" and "rights" is neither new nor unusual, but constitutes merely one episode in the ongoing adaptation of such terms in natural law. Natural law emerges as an exceedingly pliable theory, capable of serving both radical and conservative agendas, rebellion and the maintenance of the status quo, the defense and the denial of rights. In addition to natural law, my discussion of Bird's eight novels explores literary traditions from the historical romance to the captivity narrative to the satire, and historical contexts from the Spanish conquest of Mexico to 18th-century American frontier struggles to Southern slavery. I also place Bird's fiction into the context of contemporary political discourses, including proslavery and abolitionist ideologies, the discussion of Indian removals, and debates over national expansion. Finally, I substantiate my conclusions with original research from the University of Pennsylvania's archives of Bird's manuscripts, notebooks, letters, and political journalism.
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Barreneche, Osvaldo 1958. "Crime and the administration of criminal justice in Buenos Aires, Argentina, 1785-1853." Diss., The University of Arizona, 1997. http://hdl.handle.net/10150/282402.
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This dissertation analyzes the emergence of the criminal justice system in modern Argentina, focusing on the city of Buenos Aires as case study. It concentrates on what I call the formative period of the postcolonial penal system, from the installation of the second Audiencia (superior justice tribunal in the viceroyalty of Rio de la Plata) in 1785 to the promulgation of the Argentine national constitution in 1853, when a new phase of inter-regional organization and codification began. During this transitional period, basic features of the modern Argentine criminal justice system emerged which I study in detail. They are: (a) institutional subordination of the judiciary; (b) police interference and disruption in the judiciary-civil society interface; (c) manipulation of the initial stages of the judicial process (sumario) by senior police officers (comisarios); and (d) utilization of institutionally malleable penal-legal procedures as a punitive system, regardless of the outcome of criminal cases judicially evaluated.
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Arsego, Djonatan. "Teoria Hegeliana da pena e administração da justiça." reponame:Repositório Institucional da UCS, 2016. https://repositorio.ucs.br/handle/11338/1846.
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O estudo desenvolvido nesta dissertação trata do conceito hegeliano da administração da justiça a partir da obra Filosofia do Direito. (FD, 2003). Essa concepção hegeliana da administração do direito faz parte do conceito de sociedade civil englobada na Eticidade, a terceira parte da Filosofia do Direito. Essa subseção é composta pelos parágrafos 209 a 229, e trata da aplicação do direito. Esta dissertação examina se a instituição do Direito é real e efetiva para a sociedade e para os seus cidadãos; como se formam e se aplicam as leis na sociedade e para seus cidadãos, e por que as mesmas são tão importantes para a estabilidade e para o convívio das pessoas em um Estado segundo a teoria do direito hegeliano. Mas, como se pode dizer que o direito hegeliano, em sua teoria da pena, é estável, tendo em vista as variações na aplicação das leis? E, também em vista do diferente modo como os delinquentes são julgados? Estas respostas serão dadas no tribunal pela pena, que é sancionada a cada caso particular, analisando a intenção pela qual o cidadão se desviou do convívio com os demais membros da sociedade e vendo os danos causados por um infrator. O trabalho também trata dos problemas do “direito de dizer não” e do “direito de necessidade ou emergência”. Também retoma os conceitos de dolo e culpa presentes na moralidade hegeliana. Mas, para que a pena seja efetiva, requer-se que a sociedade possua códigos que permitam que todos os cidadãos reconheçam as leis como guias, assim como os costumes para o bom convívio. Portanto, é importante compreender como as leis se formam e se efetivam na sociedade, o que são e o porquê de sua existência.Submitted by Ana Guimarães Pereira (agpereir@ucs.br) on 2017-03-17T14:06:23Z No. of bitstreams: 1 Dissertacao Djonatan Arsego.pdf: 1436127 bytes, checksum: 08783847f1029eec9349721f4514dfd8 (MD5)
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The study developed in this dissertation deals with the Hegelian concept of the administration of justice from the work entitled “Filosofia do Direito” (legal philosophy). (FD, 2003). This Hegelian conception of the administration of the law is part of the concept of the civil society encompassed in ethics, the third part of the philosophy of law. This subsection is composed of paragraphs 209-229, and deals with the application of the law. This paper examines if the institution of the law is real and effective for the society and for its citizens; how the laws are formed and applied in social groups, and why they are so important to the stability and coexistence of people in a state according to the Hegelian theory of law. But how can it be said that the Hegelian right, in its theory of punishment, is stable, in view of the variations in the application of laws? Also, in view of the different ways offenders are judged? These answers will be given in court by the penalty chosen, which is given to each particular case, analyzing the intention for which the citizen has deviated from interacting with other members of society and seeing the damage caused by the offenders. This work also deals with the problems of the "right to say no" and the "right of necessity or emergency". It also incorporates the concepts of intent and unintentional guilt present in Hegelian morality. For the penalty to be effective, it is required that society sees it in the form of codes, which will allow all citizens to recognize them as models, and at the same time as costumes needed for a good living. Therefore, it is important to understand how the laws are formed and actualized in society, as this is the reason for their existence.
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Pilarczyk, Ian C. "'Justice in the premises' : family violence and the law in Montreal, 1825-1850." Thesis, McGill University, 2003. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=84214.
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The judicial response to family violence in Montreal during the period 1825 to 1850 was marked by paradox. The criminal justice system, driven by private prosecutors, limited the ability of some victims to seek the law's protection, but it allowed others to exercise considerable discretion and influence over the pursuit of justice. The legal response to the crimes of infanticide, child abuse, domestic violence, and spousal murder was equally contradictory. Infanticide may have been depicted as a horrific crime, but the call for justice was never strong. Society became increasingly sensitive to the notion that parents should be held accountable for causing injury to children, but a belief in the sanctity of the family was still paramount. When child abuse cases did come before courts, children were often accorded the same legal remedies by courts as were adult victims. Similarly, while the issue of family violence was not then a widespread societal concern, and while the notion that a wife was subordinate to her husband remained a prominent part of early-Victorian life, hundreds of abused wives prosecuted their husbands for assault. Those cases reflect not only that abused wives were contesting their partner's use of violence, but also that courts were willing to intervene. Spousal murder cases were further evidence of contradiction: women were subject to heightened legal penalties for killing their partners, but their gender also insulated them from the full severity of the law.In a period before the sweeping public movements that developed in the last several decades of the nineteenth century, courts were forced to grapple with family violence because private prosecutors brought those issues before them. In their willingness to hear cases involving infanticide, child abuse, domestic violence, and spousal murder, courts made public some of Victorian Montreal's darkest secrets. While the privately-driven system of justice was slowly to erode over the intervening decades, that erosion was to coincide with the rise of public crusades against child-cruelty, domestic violence, and other social issues. The visibility of family violence likely fueled, and in turn was fueled by, those social movements.
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Kolloer, Thomas Henry. "Environmental philosophy in international law : a study of environmental philosophical perspectives in decisions of the International Court of Justice." Thesis, University of Birmingham, 2017. http://etheses.bham.ac.uk//id/eprint/7473/.
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This thesis argues that the International Court of Justice (ICJ) is in a unique position to advance environmental norms but that it does not. Reasons for this situation are analysed and, ultimately, a biocentric natural law philosophy is presented to address the deficiencies of the Court's environmental protection. To construct this argument the thesis demonstrates that it is not unreasonable to assume that the Court’s decision-making may embody a tacit philosophy. Notions of environmental duty and the traditions of thought they may be based upon are explored to understand this. Changing conceptions of the place of humans in the world and related notions of responsibility are shown to culminate in morally neutral utilitarianism, which removed all that had limited a ruinous environmental regard. Modern environmental philosophical perspectives must be characterised as movements to different extents, away from utilitarian thinking. ICJ case analysis is conducted against these perspectives, where it is found that the Court is inconsistent and hesitant to articulate the content and status of principles of international environmental law. In response, the thesis sketches a biocentric perspective based on natural law. To conclude the thesis considers what it would take for the ICJ to develop a biocentric legal doctrine.
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Versteeg, Mila. "Words of liberty : the origins and evolution of constitutional ideas." Thesis, University of Oxford, 2011. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.669950.
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It has become almost universal practice for countries to adopt written constitutions that include a bill of rights. Yet we know little about the origins and evolution of the practice of constitution-writing on a global scale. Are bills of rights defining statements of the nation’s character and identity? Or are they more standardized documents that are similar across countries, and vary only at the margins? Are substantive constitutional features rooted in the society for which they are written, or are they borrowed from elsewhere? What are the origins of the world’s “words of liberty”? This thesis presents the first-ever systematic substantive exploration of the world’s written constitutions. It introduces a new database, based on the coding of the constitutions of 188 countries, for the period 1946-2006. With this data, it explores the historical trajectory of the world’s written constitutions and offers explanations for their substantive content. This thesis's most important finding is that constitutions are inherently “transnational” documents. As it turns out, substantive constitutional choices are remarkably unrelated to local needs and values. Constitutions do not express identity or national character. Instead, the most important predictor of whether any particular country adopts any particular constitutional provision is whether other countries previously did the same thing. Constitutions do not tell stories of the nation’s history, but rather tell stories of transnational interactions and international politics. As a result, constitutions have become at least partly standardized documents that vary along a small number of underlying dimensions. But this thesis also shows that not all constitutions are the same, and that there exists no evidence of a global constitutional convergence. Instead, the world’s constitutions divide in a limited number of constitutional families. This thesis is not currently available in ORA.
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Rawlings, Philip. "The reform of punishment and the criminal justice system in England and Wales from the late seventeenth century to the early nineteenth century." Thesis, University of Hull, 1988. http://hydra.hull.ac.uk/resources/hull:3150.
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Dufresne, Martin. "La justice pénale et la définition du crime à Québec, 1830-1860." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1997. http://www.collectionscanada.ca/obj/s4/f2/dsk3/ftp04/nq21966.pdf.
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