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Perry, Stephen Robert. "Adjudication, legal theory and the common law." Thesis, University of Oxford, 1987. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.253825.
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Brady, Paul. "Towards a theory of adjudication : some issues of method and principle." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:ebfc484a-5593-445f-83d1-9cf30466e314.
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A sound theory of adjudication and of judicial duty requires or presupposes a sound theory of law and of legal argument. Jurisprudential inquiry is properly grounded not in reflections on conceptual properties of law but in reflections on human goods and needs as understood in a morally articulated theory of practical reason and compactly expressed in the normative concept of the common good. Such reflections confirm that law exists, in its central case, as a means to various types of authoritative co-ordination solutions. The underdetermined nature of (a) the positive requirements of practical reasonableness and the common good and of (b) the appropriate means of enforcing compliance and remedying non-compliance with either these requirements or the determinate negative precepts of practical reasonableness entails that a practically necessary aspect of the positive law’s role is constituting the requirements of justice, i.e. of what is due to whom generally and in particular situations (including situations where an injustice has been or is alleged to have been done). As a distinct and practically necessary mode of legal co-ordination for the common good, adjudication, in its central case, answers litigated questions of justice by applying all relevant law in accordance with the legal system’s practice of legal argument. Thus adjudication is performed by authoritative law-applying institutions precisely because it is about answering questions of justice, and not despite that fact. Theories of law developed on the assumption that it is possible to understand the ‘what’ of law without reliance on any moral judgments deny any practically necessary connection between (a) the promotion of justice and the common good and (b) the nature of law, in its central case, and, hence, the adjudicative application of the law. In the absence of this connection a judicial duty to do justice according to law is unintelligible.
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Psarras, Charalampos. "Law's authority and the division of moral labour between legislation and adjudication." Thesis, University of Edinburgh, 2013. http://hdl.handle.net/1842/9601.
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This thesis claims that if law has a distinctive and genuine normative force, then it is thanks to the fact that law’s authority originates from a particular institutional layout that allows for a division of moral labour between legislation and adjudication. After establishing what the moral dimension of authority is a matter of, and how law’s normative force can be justified by reference to it, this thesis defends a comprehensive-moral account of law’s authority. In this respect, the thesis argues that the moral dimension of law’s authority can be highlighted well if we consider it as emerging through a morally meaningful institutional distinction between legislation and adjudication: the institutional profile of legislative authority and that of adjudicative authority differ from each other, in that each can be said to be underlain by its own evaluative standards. On the one hand, the particularity of legislative authority is a matter of its community-driven, forward-looking character and of its consensual structure; as well as of the declaratory nature and the agent-relative status of reasons issued by legislative provisions. On the other hand, adjudicative authority is distinctive because it has a litigant-driven, remedial character and employs an adversarial structure so that it accomplishes its impartial investigatory task through the issuance of agent-neutral reasons. So understood, the institutional profile of legislative authority is considered to be morally meaningful in the sense that it incorporates a rule-consequentialist and value-pluralist rationale; while that of adjudicative authority is taken to owe its own moral meaningfulness to the fact that it fosters reciprocity between litigants.
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Sotomayor, Trelles José Enrique. "Emotion, rationality and argumentation in judicial adjudication." Pontificia Universidad Católica del Perú, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/116108.
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Based on the theory of the emotions proposed by Martha Nussbaum, the present paper proposes a theory of rationality and judicial reasonability that includes emotions as a necessary element. With this, it is possible to pass from a purely deliberative-abstract model of judicial argument to a narratively open one, in which empathy and literary imagination play a fundamental role. I will argue that emotions have a concrete manifestation in at least three relevant circumstances: the value of testimony, that of empathy, and that of literary imagination. However, the place of emotions for the project of judicial rationality is subject to institutional restrictions such as rules of law, procedures and precedents. With this in mind, a sketch of theory on the narrative rationality in judicial contexts is presented in the last section of this paper.A partir de la teoría de las emociones de Martha Nussbaum, el presente trabajo propone una teoría de la racionalidad y razonabilidad judicial que incluya a las emociones como un elemento necesario. Con ello se pasa de un modelo puramente deliberativo-abstracto de argumentación judicial a uno de tipo narrativamente abierto, en el cual la empatía y la imaginación literaria desempeñan un papel fundamental. Sostendré que las emociones tienen una manifestación concreta en al menos tres circunstancias relevantes: el valor del testimonio, el de la empatía y el de la imaginación literaria. Sin embargo, el lugar de las emociones para el proyecto de la racionalidad judicial está sometido a restricciones institucionales tales como reglas del derecho, procedimientos o precedentes. Con ello, un bosquejo de teoría sobre la racionalidad narrativa en sede judicial es presentado en la última sección.
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Curley, Sean. "Lord Denning : towards a theory of adjudication : an examination of the judicial decision making process of Lord Denning and his creation and use of the interstitial spaces within the law and legal process to assist in the exercise of his discretion and an examination of those factors which influenced that discretion." Thesis, University of Huddersfield, 2016. http://eprints.hud.ac.uk/id/eprint/29101/.
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This is an investigation into the methods and techniques used by Lord Denning in pursuit of his notion of doing justice to the case in front of him. The thesis examines Denning’s upbringing and biography to attempt to identify incidents and influences on his character which may have shown themselves in his later judicial career. The thesis then examines his judicial style and philosophy to attempt to isolate a theory of adjudication which accounts for some of his decisions. The theory of the interstitial spaces within the law wherein judges are entitled to exercise their discretion in coming to judgement is examined. This is then set against Denning’s actions in three cases which are examined at length to analyse his methods of obtaining the space to exercise his discretion and then the way he actually exercised that discretion is examined and analysed. There is in analysis of the legitimacy of each of these exercises of discretion and the legacy of each of them (if any). The conclusion pulls all these threads together and expounds a theory of adjudication that may fit these decisions and his judicial style and then analyses this theory against the background of modern jurisprudential thought.
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Ciomaga, Bogdan. "Sport a theory of adjudication /." Columbus, Ohio : Ohio State University, 2007. http://rave.ohiolink.edu/etdc/view?acc%5Fnum=osu1186600020.
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Brown, C. W. "A common law of international adjudication." Thesis, University of Cambridge, 2005. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.596968.
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This dissertation examines aspects of procedure and remedies in the jurisprudence of international courts and tribunals. The dissertation’s central thesis is that there is increasing similarity in the application of procedure and remedies by international courts, and that this represents the emergence of a ‘common law of international adjudication’. The emerging common law of international adjudication owes its existence in part to the broad powers that international courts can exercise over their procedure and remedies. These powers encompass not only those which are expressly conferred on them, but also inherent powers, which international courts can exercise to fill lacunae in their constitutive instruments and rules of procedure. Several specific aspects of the adjudication process are examined to discern the existence of commonality in international judicial practice. These are: aspects of the rules of evidence; the power to grant provisional measures; the power to interpret and revise judgements and awards; and the availability of remedies. The analysis suggests that international courts are increasingly referring to the practice of other international tribunals, leading to substantial commonality on each of these questions, except where their constitutive instruments provide for special rules. The thesis developed in this dissertation has practical and theoretical implications. While it has not been possible to consider all aspects of international adjudication, the analysis nonetheless suggests that similar results may be found in other areas, and that international courts can devise common approaches to new procedural issues. It also suggests that international courts do not operate as self-contained regimes, but rather regard themselves as forming part of a community of international courts. In this sense, the emergence of a common law of international adjudication has positive implications for the development of an international legal system.
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Fagan, Anton. "Constitutional adjudication in South Africa." Thesis, University of Oxford, 1997. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.363516.
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Marumoagae, Motseotsile Clement. "Adjudication of child relocation disputes in South Africa." Doctoral thesis, Faculty of Law, 2021. http://hdl.handle.net/11427/33789.
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This thesis discusses the adjudication of child relocation disputes (CRDs) in South Africa. The central thesis is that judges require adequate legislative guidance when exercising their discretion in CRDs. At present, judges adopt widely different reasonings when adjudicating CRDs and this has led to inconsistent CRDs jurisprudence. Due to lack of legislative guidelines, judges can choose to rely on any factor to reach their desired outcomes while at the same time rejecting those factors that might contradict their intended outcomes. In typical CRDs, parents who have been awarded the care and residency (usually mothers) wish to relocate with their children. They usually attempt to justify the proposed relocation on factors such as: their right to freedom of movement; pursuit of new romantic relationships; better work opportunities; improved standard of living; concern about crime; attainment of quality education; reuniting with family members; lack of family support; and abuse from non-custodial parents among others. Non-custodial parents often object to the proposed relocation on the basis that relocation will affect their rights to maintain contact with their children. To substantiate this claim, they usually indicate the extent of their interest in their children's lives and the amount of time they spend with their children. They often question the genuineness and good faith of the intended relocation and cast doubt on the ability of relocating parents to provide a better life for their children post-relocation. Occasionally, they invoke arguments relating to the disruption of the child's life and routine, including schooling, faith, and extramural activities. This thesis argues that CRDs are not as unique as they are often made out to be. For every CRD, there is likely to be precedent, local or foreign that can shed light on how such dispute should be adjudicated. However, many CRDs cases, both in South Africa and in foreign jurisdictions deal with similar CRDs differently. This makes it easy for judges who are adjudicating CRDs to reject certain precedents and follow others, or to reject the approaches of all previous cases and formulate their own novel approaches. This thesis argues that judges through their discretion can formulate their own approaches, which they can use to reject evidence that is contrary to their desired outcomes and rely instead on evidence that supports their intended outcomes. As a result, CRDs jurisprudence invokes many judicial approaches such as: reliance on predetermined presumptions for and against relocation; the reasonableness test; tender years and maternal preference; and the exceptional or compelling circumstances test. Judges can use these tests to either grant or refuse custodial parents' permission to relocate. When the application of certain tests works against their intended outcomes, judges have skilfully deviated from such tests to suit their subjective views on parenting. Judicial discretion is usually exercised in the name of the Best Interests of the Child (BIC) principle, which is thoroughly discussed in this thesis. Most importantly, this thesis argues for the limitation of judicial discretion in CRDs through the provision of legislative guidelines which will assist judges when determining CRDs. This thesis proposes an amendment to the Children's Act 38 of 2005, to incorporate a specific chapter dealing with CRDs which considers the involvement of both parents in their children's lives to the extent possible. There is a shift in thinking regarding CRDs in some jurisdictions, where the roles of both parents in their children's lives are adequately assessed when CRDs are determined. The proposal of this thesis is centred around the establishment of a legislative mechanism that will enable judges to identify, select, weigh, and adequately balance competing factors in CRDs to ensure that all cases are thoroughly investigated and considered.
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Endicott, Timothy A. O. "The use of vague language in law and adjudication." Thesis, University of Oxford, 1997. https://ora.ox.ac.uk/objects/uuid:16694c04-69da-486d-8ddb-ddae3cef3451.
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Vagueness in the language of the law leads to indeterminacies in some (not in all) of the requirements of the law. This thesis supports that 'indeterminacy claim', and explores its consequences for understanding law and adjudication. I elaborate the indeterminacy claim with a categorical claim that vagueness is ineliminable from law, and with a more tentative claim that indeterminacies in the application of vague language are not trivial or marginal. The indeterminacy claim is defended against legal theorists who argue that the law has other resources, besides the words that lawmakers use, which make it possible for judges to decide all cases consistently and according to law. Philosophers of language and of logic have sought a theory of the application of vague words that would solve the 'sorites paradox'. Such a solution might contradict the indeterminacy claim, either by showing that there are no cases in which the application of vague language is indeterminate, or by providing a model of reasoning with vague language that supports the 'other resources' arguments of legal theorists. I suggest reasons for resisting the urge to seek a solution, the chief being 'higher-order vagueness' and incommensurabilities in the application of many vague expressions. I propose a 'similarity model' of vagueness, in which a vague expression is viewed as applying to objects sufficiently similar to paradigms. The 'sufficiently' element in this model corresponds to a connection between the application of vague words and evaluative judgments. The 'paradigms' element is examined by assessing the role of paradigms in the theories of Herbert Hart and Ronald Dworkin. On the basis of the indeterminacy claim, the thesis argues that courts frequently cannot decide cases by giving effect to the requirements of the law, and that they cannot always decide like cases alike. A concluding chapter addresses implications for the ideal of the rule of law. It might seem that the rule of law is necessarily unattainable, to the extent that the requirements of the law are indeterminate. I propose an understanding of the ideal that rejects that conclusion, and that identifies the resolution of unresolved disputes as an important, independent duty of judges.
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Noor, Azman Bin Mohd. "Rape in Islamic law : problems of classification and adjudication." Thesis, University of Edinburgh, 2007. http://hdl.handle.net/1842/29300.
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This research attempts to investigate rape as a crime according to Islamic criminal law. There have been many controversial issues pertaining to the notion of rape, its penal classification, punishment, adjudication and remedies for the victim. Rape in classical Islamic law has been seen as a crime correlated with zinā and as such should be treated similar to zinā in collecting evidence for prosecution as well as punishment. However, some modern scholars have suggested that rape is actually closer to hirāba on the basis that there are concepts of hirāba such as physical assault in rape. Interestingly, taking different classification of perceiving rape will leave open consequences of prosecution, proving and punishing. This research examines the appropriate punishment for rapists, issues of modern development in prosecution of rape, legal procedures, the rights of the accused as well as the rights of the victim based on the opinions and arguments of classical and modern Muslim jurisprudents from various schools of law.
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Tew, Yvonne Mei-Ni. "Renegotiating constitutional adjudication : a minimum core approach for Malaysia and Singapore." Thesis, University of Cambridge, 2013. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.608233.
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Mishor, Yishai. "Law, poverty and time : the dynamics of poverty in constitutional human rights adjudication." Thesis, University of Oxford, 2016. https://ora.ox.ac.uk/objects/uuid:62ccd8ed-4634-493c-900d-15d5446746e4.
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Poverty is an event in time. Only dynamic thinking can fully capture its reality. This thesis contends that human rights case law is based on a static perception of poverty inconsistent with the dynamic perception of poverty in economics. Failing to notice its temporal aspects, the examined courts consequently produce judgments that overlook essential aspects of this socio-economic phenomenon. This is puzzling, since in other contexts of constitutional human rights adjudication the passage of time bears a significant role. This means that for courts to switch from a static perspective to a dynamic perspective of poverty does not require new legal tools. The duration of poverty and change in poverty can be incorporated into judicial thinking using familiar norms and doctrines. The extent of poverty, whether it is transitory or a long-term situation, the chances of escaping it in the near future, the fluctuations in depth of poverty over the years, the probability that upon emerging from poverty one will be caught up in it again, the inheritance of poverty from parents to children: these are all time-related concerns that bear profound significance on the lives of poor people. A static examination not only overlooks these issues, but also neglects the essence of long-term poverty. Viewing poverty through the lens of time would reveal a broader and more complex human rights picture, producing a richer legal analysis, and, finally, leading to a more suitable remedy. This study examines cases that consider claims relating to the economic situation of poor people, concentrating on examples from France, Canada and Israel. The analysis reveals the temporal approach of each judgment and suggests an alternative, dynamic reading of poverty.
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Wong, Doris Pui Sze. "Can adjudication become more popular in Hong Kong construction industry?" access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b21324293a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2005."A dissertation submitted in partial fulfillment of the requirements for the degree of Master of arts in arbitration and dispute resolution." Title from title screen (viewed on Sept. 20, 2006) Includes bibliographical references.
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De, Silva Nicole. "How international courts promote compliance : strategies beyond adjudication." Thesis, University of Oxford, 2016. https://ora.ox.ac.uk/objects/uuid:7e4291c4-7df5-4df3-ab30-5df2d90dd8f3.
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In recent decades, international courts have proliferated the international system - a trend often referred to as the "judicialization" of international law and politics. States create international courts to promote greater compliance with international law, and have increasingly embedded these actors within various international regimes. Scholars have primarily analyzed the consequences of the judicialization trend based on international judges' authority for interpreting and applying international law, adjudicating international disputes, and rendering binding rulings. However, international courts, especially when conceptualized as international organizations, also perform a variety of activities beyond adjudication. This study theorizes international courts' agency, in both its judicial and non-judicial dimensions, to explain how international courts aim to influence actors' behaviour and promote greater compliance within their international legal regimes. As a foundation, it conceptualizes the various approaches through which international courts can promote compliance with international law, showing how international courts can appeal to actors' logics of consequences and appropriateness, either through their own agency or through using intermediary actors. An original dataset on the prevalence of these approaches across all twenty-three permanent international courts reveals significant variation in whether and how international courts have expanded their approaches for promoting compliance. International courts' level of autonomy influences their capacity for entrepreneurship and developing their approaches. Furthermore, their levels of acceptance and accessibility affect their adoption of particular approaches. Drawing on archival and interview research, ten case studies of a range of global and regional international courts, operating in a variety of issue areas and contexts, elucidate international courts' variable expansion of approaches based on these core variables. The study shows that international courts are dynamic and strategic actors, which address challenges and exploit opportunities to increase their influence and promote compliance within their international regimes.
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Gelinas, Fabien. "Constitutional adjudication and the independence of Canada : issues of principle, convention, and law." Thesis, University of Oxford, 1995. https://ora.ox.ac.uk/objects/uuid:5b32f3bd-4a16-4020-8778-2494e1a304cb.
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This thesis seeks to identify the conceptual resources available to Canadian courts in the adjudication of fundamental constitutional change. Part One offers a general analysis of the materials pertaining to the self-interpretation of the higher courts' role as a privileged forum for constitutional decision-making. Reviewing the rich development of the advisory opinion tradition, the drastic weakening of traditional bars to adjudication and the judicial pronouncements on constitutional conventions, it explains how the Canadian judiciary have come to assume in a uniquely Canadian way the role of "guardians of the constitution", well beyond traditional conceptions of the judicial function. Part Two starts with a critical analysis of the Supreme Court's view of the distinction between convention and law and moves on to offer a more convincing account of the inevitable interface between convention and unwritten constitutional law, with a view to an appropriate treatment of constitutional change. Part Three directly addresses the issue of fundamental constitutional change. It begins with a theoretical study of the problem of self-reference in constitutional law, moves beyond this so-called paradox to explore how the juncture between "logic" and "pragmatics" might be explained for law, and finally presents the issue as the courts faced it in the Patriation Reference. Part Four, finally, explains how constitutional principles function in constitutional adjudication as the proper source of both constraint and justification in decisions where fundamental rules are at issue. Picking up the matter where it was left off at the end of Part Three, it concludes this thesis with a legal analysis of the transfer of ultimate and supreme constitutional authority from the United Kingdom to Canada, an analysis which puts all of the author's conclusions to work.
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Wheatle, Se-shauna Monique. "The impact of implied constitutional principles on fundamental rights adjudication in common law jurisdictions." Thesis, University of Oxford, 2013. http://ora.ox.ac.uk/objects/uuid:e97b81cb-13f5-426c-8a94-59c3fc139055.
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This thesis explores the roles played by implied constitutional principles in fundamental rights cases in the common law jurisdictions of Canada, Australia, the Commonwealth Caribbean, and the United Kingdom. The two principles selected for this research are the separation of powers and the rule of law, both of which are relied upon in courts in common law states. The thesis examines the types of cases in which such principles are used, the possible reasons for the appeal of these principles, and the functions that they play in fundamental rights adjudication. The thesis begins with a brief discussion of the applications of the rule of law and the separation of powers, outlining the content of these principles as applied by the courts. However, the bulk of the analysis throughout the thesis is concerned with a thematic study of the functions played by the principles. It is argued that the principles are used as interpretative aids, as independent grounds for invalidating legislation, and as gateways to comparative legal analysis. The thesis ends by showing the necessary preliminary work that must be undertaken in order to engage in a thorough normative analysis of the use of implied principles in rights adjudication. Throughout the thesis, several themes are identified as key to our understanding of the functions played by implied principles in the cases discussed. One such theme is legitimization, specifically the role the principles play in the attempt to legitimize arguments, state institutions (particularly the courts), and the state itself. The theme of institutional self-protection also arises; it is evident in the use of principles to protect the jurisdictional sphere of the courts. The analysis of the operation of implied constitutional principles also highlights the legacy of Empire and the deployment of traditional principles to signal the maintenance of democratic traditions and institutions.
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Lindstrand, Henrik. "Bankgarantin enligt svensk rätt : Särskilt om Adjudication Bond." Thesis, Internationella Handelshögskolan, Högskolan i Jönköping, IHH, Rättsvetenskap, 2010. http://urn.kb.se/resolve?urn=urn:nbn:se:hj:diva-13962.
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I uppsatsen utreds Adjudication Bond, vilket i Sverige är en ny typ av bankgaranti. För att bedöma denna görs en jämförelse med hur bankgarantier som rättsligt institut förhåller sig till svensk rätt. Bankgarantier används både i Sverige och internationellt. De utgör säkerhet för ett underliggande avtals riktiga fullgörelse. Den ena parten (uppdragsgivaren) till det underliggande avtalet ger banken i uppdrag att ställa ut bankgarantin till förmån för dennes motpart (beneficienten) för det fall att uppdragsgivaren inte uppfyller sitt åtagande enligt det underliggande avtalet. Bankgarantier kan varieras på olika sätt och ställas ut för alla typer av underliggande avtal. Bankgarantier är antingen självständiga eller accessoriska. Vid den självständiga bankgarantin ska beneficientens rätt till ersättning endast bedömas enligt bankgarantins villkor, emedan vid accessoriska bankgarantier denna rätt ska bedömas också enligt det underliggande avtalet. I garantins s.k. betalningsmekanism uppställs de krav som beneficientens begäran måste uppfylla för att ersättning ska utbetalas. Således kan det endast krävas en begäran från beneficienten (on demand), men därutöver kan det krävas att beneficienten till sin begäran presenterar ytterligare dokument, bestående av ett expertintyg eller ett domslut, som bekräftar beneficientens rätt till ersättning. Adjudication är ett speciellt tvistelösningsförfarande där en tvist ska avgöras med tillämplig lag men där avgörandet inte är slutligt. Således faller Adjudication Bond mellan expertintyget och domslutet. I uppsatsen framgår det att Adjudication Bond ska presumeras vara en självständig bankgaranti, med mindre det tydligt framgår i garantivillkoren att den är accessorisk. Vidare fastslås att Adjudication Bond är en bankgaranti som kan bedömas både enligt remburs- och borgensreglerna.The thesis examines Adjudication Bond, which is a new kind of bank guarantee in Sweden. The examination is conducted by a comparison of how bank guarantees, as legal institutes, relate to Swedish law. Bank guarantees are used in Sweden and in international trade. They guarantee the due performance of an underlying contract. A party (principal) to the underlying contract instructs the bank to issue the guarantee on behalf of the principal in favour of the other party to the underlying contract (beneficiary) for the due performance of the underlying contract. Bank guarantees can be altered in various ways and be issued for all kind of underlying contracts. Bank guarantees are either independent or accessory. Under the independent guarantee the beneficiary’s call on the guarantee shall be assessed only pursuant to the conditions in the guarantee, whereas under the accessory guarantee the call shall be assessed also pursuant to the underlying contract. The guarantee’s payment mechanism specifies what requirements the call must fulfil in order to trigger the payment. Thus, the call may be honoured on the beneficiary’s demand (on demand), or the beneficiary may have to submit any additional document, such as expert certificate or a court decision, that confirms the beneficiary’s right to payment. Adjudication is a special sort of dispute resolution; the dispute is settled in accordance with applicable law but the decision is not final. Hence, the Adjudication Bond encompasses partly the expert certificate and partly the court decision. In the thesis I argue that the Adjudication Bond shall be perceived as an independent bank guarantee, unless it is clear from the guarantee’s conditions that it is accessory. Further, I hold that Adjudication Bond is a bank guarantee on which the rules of letter of credit and suretyship can be applied.
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Urbina, Molfino Francisco Javier. "A critical analysis of the proportionality test in human rights adjudication." Thesis, University of Oxford, 2013. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.669893.
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In this thesis I argue against the proportionality test in human rights adjudication, and provide a framework for understanding the proportionality debate. I identify two accounts of proportionality. One sees proportionality as a doctrinal tool aimed at maximising rights and public interests. The other sees proportionality as allowing for open- ended moral reasoning. I analyse the two accounts and identify their main deficiencies. I argue against both conceptions, and conclude that defenders of proportionality are in the following dilemma: either proportionality is insensitive to important moral considerations related to human rights and their limitations, and thus it is an unsuitable tool for human rights adjudication; or proportionality can accommodate the relevant moral considerations, but at the price of leaving the judge undirected, unaided by the law. I will further argue that lack of guidance is a deficiency in legal adjudication, which has important negative effects.
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McIntyre, Meagan L. "Disparities of (In)Justice: An Examination of the Asylum Adjudication System in the U.S." Scholarship @ Claremont, 2017. http://scholarship.claremont.edu/scripps_theses/1041.
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This study examines decisions of immigration judges from the Miami and Los Angeles immigration courts, analyzing the asylum grant rates of judges in the courts from 2000-2016. In five-year time frames, the study looks at each immigration court and the decisions yielded, amounting up to nearly 86,000 decisions. Examining judges on an individual level, the study also analyzes the outputs of each court collectively. The analysis reveals very distinct disparities in grant rates, showing up to a 70% disparity between judges within the same immigration court. Based on biographies provided by Transactional Records Access Clearinghouse (TRAC), this paper explores possible correlations between various extralegal factors of individual immigration judges and their respective asylum grant rates. The results of the analysis showed correlation between gender, political party appointed under and the asylum grant rate, as well as strong correlation between judges’ previous work experience prior to appointment (DHS/INS experience, NGO experience) and the asylum grant rate. Additionally, the analysis reviews case law of the Ninth and Eleventh Circuit Courts, looking at distinct differences in the precedents of asylum law. The paper explores the tension between these judicial entities, the legislative branch, and the executive agencies enforcing the asylum adjudication process in the context of the Los Angeles and Miami immigration courts. The conclusion discusses the implications of the findings, especially in regards to the rapidly changing directives of the current executive administration.
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Asquith, Nicole. "Speech Act Theory, Maledictive Force and the Adjudication of Vilification in Australia." Network Books, 2007. http://hdl.handle.net/10454/3897.
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Ponomarenko, Iryna. "Proper proportions of law : justifying democratic credentials of proportionality analysis in constitutional adjudication." Thesis, University of British Columbia, 2013. http://hdl.handle.net/2429/45345.
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When scholars speak of proportionality, they most likely speak of the multi-pronged analytical frame for norm-based argumentation — which it certainly is. Indeed, be it the Canadian Oakes test or European “fair balance,” proportionality is deemed to be “the best possible” discursive technique to achieve “a positive partnership” between conflicting constitutional rights and laudable legislative objectives. However, there is more to proportionality than a formulaic framework: as canvassed throughout the thesis, there exist notorious puzzles regarding the concepts and vocabularies involved in the proportionality rhetoric; there is likewise a need to critically analyze the assumptions and presuppositions underlying modern proportionality discourse. Last but not least, the very invocation of proportionality into rights adjudication calls for doctrinal — as well as legal and democratic — justification. From the European Union to Canada, from South Africa to Brazil, constitutional jurisprudence is currently filled with proportionality formulaic parlance, whereas — and this last point is of particular significance — very few Constitutions explicitly speak of proportionality, not to mention the multi-pronged tests. In this thesis, I take a wider view of the matter and propose a new paradigm for bridging the epistemological gap between the constitutional need to reconcile competing private and public interests, on one hand, and invocation of proportionality formula into constitutional jurisprudence, on the other.
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Lee, Jennifer M. "The influence of majority ideology on environmental law adjudication in the U.S. Supreme Court." Connect to Electronic Thesis (CONTENTdm), 2010. http://worldcat.org/oclc/644683613/viewonline.
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Lara-Cabrera, Erasmo Alonso. "Non-state actors and adjudication by international tribunals : the test of international environmental law." Thesis, University of London, 2003. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.401785.
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Plant, Brendan Charles. "Marking the boundary between facts and norms : effectiveness, effectivités, and the adjudication of international territorial disputes." Thesis, University of Cambridge, 2014. https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.708004.
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Lazare, Jodi. "The use of social science evidence in constitutional adjudication: overcoming the challenges of the adversarial system." Thesis, McGill University, 2013. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=114143.
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This thesis examines the practice of judicial reliance on social science evidence in the context of Canadian Charter litigation. It undertakes in-depth readings of two recent trial decisions dealing with prostitution and polygamy, which required the judges to analyze vast amounts of social science empirical data. The argument is that the legal system's prioritization of persuasion, victory and the definitive resolution of disputes prevents it from maximizing the potential contributions that the social sciences can bring to the law and the legal search for truth. The doctrine of stare decisis may also require rethinking. This thesis also explores the idea that adversarial adjudication is ill suited to the balancing of a variety of unsettled issues often required by Charter challenges. This difficulty is compounded by the demonstrated weaknesses of legal education and its failure to equip future lawyers and judges with the non-legal skills required to deal with complex and conflicting empirical data. Last, the thesis looks at another major flaw in Anglo-American adjudication, the party selection of expert witnesses and the necessary bias which results, providing an overview of alternative procedural mechanisms. Overall, the difficulties in combining the law and the social sciences can only be remedied by moving towards a more inquisitorial method of resolving constitutional disputes.Ce mémoire étudie le traitement judiciaire de la preuve issue du domaine des sciences sociales dans le contexte des recours fondés sur la Charte canadienne de droits et libertés. Il entreprend une lecture en profondeur de deux décisions récentes de première instance, concernant la prostitution et la polygamie, dans lesquelles les juges ont eu à analyser de grandes quantités de données empiriques provenant du domaine des sciences sociales. Il soutient que la priorité que confère le système judiciaire à la persuasion, à la victoire et au règlement définitif des litiges l'empêche de bénéficier pleinement de la contribution que pourraient apporter les sciences sociales au droit et à la recherche juridique de la vérité. La doctrine de stare decisis pourrait, elle aussi, devoir être repensée. Ce mémoire explore de plus l'idée que le système accusatoire convienne mal à la mise en balance d'une multitude d'enjeux incertains, comme le requièrent souvent les contestations fondée sur la Charte. Cette difficulté est aggravée par les lacunes avérées de la formation juridique et par son incapacité à doter les futurs avocats et les futurs juges des compétences non juridiques nécessaires à la prise en compte de données empiriques complexes et contradictoires. Enfin, ce mémoire se penche sur un autre défaut majeur du système judiciaire anglo-américain, la sélection des témoins experts par les parties et le biais inévitable qui en résulte, et offre un bref portrait des mécanismes procéduraux alternatifs. De façon générale, les difficultés à combiner le droit et les sciences sociales ne peuvent être remédiées qu'en se dirigeant vers un mode plus inquisitoire de résolution des litiges constitutionnels.
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Puy, Muñoz Francisco, and Parga Milagros Otero. "Theory of Law understood as Prudential Theory of Law." Derecho & Sociedad, 2017. http://repositorio.pucp.edu.pe/index/handle/123456789/117782.
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During centuries, law has been studied and understood under a human view. This way of understanding law used the argumentation, the topic, the rhetoric and the dialectics as working methods. The result was a plural and continuously in movement humanistic law. The situation changes in 19 century with the beginning of the iuspositivism movements with a focus in the study of law as legal frame. The result is a rigid, non-flexible and poorly adapted to judicial experience law. We understand that this situation must change and is urgent to combine science and prudence in order to be able to provide a Theory of law, that can be understood as a Prudential Theory of Law. This according to our understanding will enable the recuperation of a more flexible, plural and humanistic and above anything a fairer judicial experience.Durante siglos se ha estudiado y entendido el Derecho en clave humana. Esa forma de entenderlo usaba de la argumentación, de la tópica, de la retórica, y de la dialéctica como métodos de trabajo. El resultado era un Derecho humanista, plural y en permanente movimiento. Esta situación cambió en el siglo XIX con el inicio de las corrientes iuspositivistas, que enfocan el estudio del Derecho como ordenamiento jurídico. El resultado es un Derecho rígido, poco flexible, y poco adaptado a la experiencia jurídica. Entendemos que esta situación debe variar, y que urge combinar ciencia y prudencia para ofrecer una Teoría del Derecho que pueda ser entendida como Teoría Prudencial del Derecho. Creemos que de ese modo se retomará una visión de la experiencia jurídica más flexible, más plural, más práctica, más humanista y sobre todo más justa.
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Ratnam, Lavanya. "An Empirical Examination of the Adjudication and Settlement of Patent Infringement Lawsuits in the United States Court of Federal Claims." Thesis, Harvard University, 2015. http://nrs.harvard.edu/urn-3:HUL.InstRepos:26519852.
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This study examined and analyzed data on how often patent lawsuits settle or are adjudicated on the merits against the U.S. Government at the Court of Claims in comparison to lawsuits against non-governmental defendants in the Eastern District of Texas and the E.D. Virginia. The comparative analysis focused on three years of study at these courts and was based on the gathered data on how often plaintiffs received a favorable outcome; how often parties settled; how often plaintiffs received a verdict on the merits from a court; how often defendants won on summary judgment; how often defendants won at trial; and how many cases were pending resolution. The findings revealed that the rates of settlement, adjudication, and the other data are highly venue dependent. In cases where the U.S. Government is a defendant, it received a greater percentage of favored outcomes through adjudication, summary judgment, and dismissed cases at the Court of Claims in comparison to the non-governmental defendants in the other courts studied. In addition, the overall rates of settlement are lower and the rate of adjudication is higher than reported in the previous studies.
This study yielded findings indicating that the U.S. Government may receive more favorable treatment in patent cases, as it has financial and strategic advantages in comparison to other defendants. In addition to significant financial resources, the U.S. Government defends itself in the same court for all patent lawsuits in which it is a named defendant. This gives the U.S. Government strategic advantages, such as predictable court rules, local and consistent rules of procedure, familiarity with the docket and length of time to trial, and an ability to frequently communicate and practice before a handful of judges.
In order to provide non-governmental defendants with similar advantages, this thesis proposes that Congress mandate that all patent infringement lawsuits undergo an Inter Partes Review at the U.S. Patent & Trademark Office so that the Patent & Trademark Office can initially determine the validity of a patent at issue before a District Court examines the remaining issues. This bifurcated trail system would result in significantly lower litigation costs to non-governmental defendants, predictable court rules at the Patent & Trademark Office, consistent rules of procedure, familiarity with a docket, a limited amount of time to reach a decision, and the ability to frequently communicate and practice before known judges that are subject matter experts. Thus, this type of system may, provide all defendants with similar strategic advantages, predictable initial trial costs, more consistent and predictable outcomes and may reduce forum shopping.
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Choi, Wai Ping. "A study of the adoption of adjudication in e-commerce disputes in Hong Kong and the way forward." access abstract and table of contents access full-text, 2006. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b21843144a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2006."A dissertation submitted in partial fulfillment of the requirements for the degree of Master of Arts in arbitration and dispute resolution, School of Law, City University of Hong Kong" Title from PDF t.p. (viewed on May 22, 2007) Includes bibliographical references.
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Badejogbin, Rebecca Emiene. "An analysis of the process of ascertainment and application of customary law in the formal institutions of adjudication: Nigeria and South Africa." Thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/28996.
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Judges of formal courts in Nigeria and South Africa do not easily have access to the contents of customary law they are required to apply in the course of adjudication and this has been a major challenge. This thesis examines the processes that courts adopt in the ascertainment and application of living customary law in Nigeria and South Africa in order to discover factors that influence the ascertainment and application of customary law. This research is qualitative in nature and utilises both doctrinal and empirical methods to make its findings. It examines the conceptualization of customary law in the context of the research against positivist and pluralist theories and analyses the doctrine of judicial discretion against relevant theories on how it impacts on the ascertainment and application process. The thesis also examines the current laws and procedures that regulate this exercise to discover how it contributes to what is ascertained by the court. For its primary sources, it utilised data obtained from the semistructured interviews conducted, and, records of proceedings of cases on customary law heard by the formal courts in Nigeria and South Africa within a fifteen-year period. The secondary and tertiary sources utilised include text books, journal articles, official reports and publications, and other literature. It identifies factors within the purview of institutional, substantive, procedural, socio-economic and political factors, as well as other factors that influence how judges exercise discretion in the ascertainment and application of living customary law. The thesis states that these factors contribute in varying degrees, to enhance or impede the ascertainment and application of living customary law by these formal courts. It therefore proposes the consideration of these factors in the policies that seek to develop measures that would enhance the ascertainment and application of living customary law by the formal courts in Nigeria and South Africa.
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Darby, Jonathan Michael. "The role of adjudication in the resolution of international environmental disputes and the development of international environment law." Thesis, University of Cambridge, 2013. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.607996.
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Searl, Mark. "A normative theory of international law based on new natural law theory." Thesis, London School of Economics and Political Science (University of London), 2014. http://etheses.lse.ac.uk/999/.
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This thesis articulates a normative theory of international law based on new natural law theory. New natural law theory is a theory of ethics, politics, and law that is based on the classical natural law doctrine of Thomas Aquinas. The primary reference point of the thesis in relation to new natural law theory is the work of John Finnis, who in Natural Law and Natural Rights and subsequent writings elaborates the theory in the consideration of fundamental concepts in political philosophy and legal theory. The thesis examines the tenets of new natural law theory regarding the common good, authority, law, justice, human rights, and legal obligation, and uses these to formulate normative claims regarding the moral purpose of international law and the moral standards that international law should satisfy in light of its purpose. The thesis posits the existence of an ‘international common good’, encompassing a set of supranational conditions that are instrumental to human welfare and that require international cooperation for their realisation. The thesis claims that the primary moral purpose of international authority and international law is to further the international common good through resolving the coordination problems of the international community of states. Identifying ‘principles of justice’ for international law, the thesis asserts that positive international law should promote and demonstrate respect for human rights, and should also promote and protect the international common good. The thesis further argues that states have a general moral obligation to obey international law, based primarily on the necessity of state compliance with international laws in order to facilitate the effectiveness of such laws in promoting the international common good. These claims are elaborated with reference to existing features of international law, and through comparison with existing normative and non-normative perspectives in international legal theory on the concepts considered.
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Leung, Kwan-yuen Physer. "For a critical theory of law: a Levinasian critique of Dworkin's theory of law as integrity and Habermas'sdiscourse theory of law." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 1999. http://hub.hku.hk/bib/B31238853.
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Curry, Todd. "THE ADJUDICATION OF PRESIDENTIAL POWER IN THE U.S. SUPREME COURT:A PREDICTIVE MODEL OF INDIVIDUAL JUSTICE VOTING." Master's thesis, University of Central Florida, 2006. http://digital.library.ucf.edu/cdm/ref/collection/ETD/id/3614.
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The interaction between the President and Congress is many times quite public and well documented (Cronin 1980; Covington et al. 1995; Fisher 1994; Schlesinger 2004). Similarly, relations between the Congress and the Supreme Court are well documented; Congress makes law and, if requested, the Court interprets it. The interaction between the president and the Court, however, is not nearly as well defined, and certainly not as public. Supreme Court cases involving the president directly are fairly rare. King and Meernik (1995) identify 347 cases involving the foreign policy powers of the president, decided from 1790 to 1996, which is roughly 1.5 cases per calendar year. This study will examine the influence of attitudinal and extra-attitudinal factors on the individual level decision-making of the U.S. Supreme Court justices in cases involving presidential power. By using both attitudinal and extra-attitudinal factors, such as public opinion and armed conflict, this study will explore the limitations of a simple attitudinal model in complex and highly salient cases such as those that involve presidential power. The cases to be examined will be all presidential power cases decided from 1949 to 2005 (N = 38). The unit of analysis will, however, be the justice's individual-level vote (N = 337).M.A.
Department of Political Science
Sciences
Political Science
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Solanki, Gopika. "Adjudication in religious family laws : cultural accommodation, legal pluralism, and women's rights in India." Thesis, McGill University, 2007. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=103294.
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Multi-religious and multi-ethnic democracies face the challenge of constructing accommodative arrangements that can both facilitate cultural diversity and ensure women's rights within religio-cultural groups. This thesis is an investigation of the Indian state's policy of legal pluralism in recognition of religious family laws in India. The Indian state has adopted a model of what I have termed "shared adjudication" in which the state shares its adjudicative authority with internally heterogeneous religious groups and civil society in the regulation of marriage among Hindus and Muslims.Combining theoretical frameworks of state-society relations, feminist theory, and legal pluralism, and drawing from ethnographic research conducted in state courts, caste and sect councils, and "doorstep law courts," I pay analytical attention to state-society interactions at the interface of religious family laws. State and non-state sources of legal authority construct internally contested and heterogeneous notions of the conjugal family, gender relations, and religious membership, and they transmit them across legal spheres. These dynamic processes of communication reconstitute the interiors of religious, state, and civic legal orders, and they fracture the homogenised religious identities grounded in hierarchical gender relations within the conjugal family.
Within the interstices of state and society---which are used imaginatively by state and societal actors---the Indian model points towards an open-ended and process-oriented conception of state-society relations that encompasses not only the binary of conflict and cooperation, but also communication between state and society. The "shared adjudication" model facilitates diversity as it allows the construction of hybrid religious identities, creates fissures in ossified group boundaries, and provides institutional spaces for ongoing inter-societal dialogue between religious groups, civil society, and the state. This pluralized legal sphere, governed by ideologically diverse legal actors, can thus increase women's rights in law, and despite its limitations, the transformative potential of women's collective agency effects institutional change.
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Lam, So-wai, and 林素慧. "The feasibility in the use of statute-based adjudication for dispute resolution in the construction industry in Hong Kong." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2007. http://hub.hku.hk/bib/B45164770.
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Geldreich, Adam Arnold 1954. "The role of congressional control in the adjudication of Indian claims in the United States Court of Claims." Thesis, The University of Arizona, 1992. http://hdl.handle.net/10150/278190.
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Indian Claims in the United States Court of Claims possess the unique quality of close congressional scrutiny. Because of the long-standing legislative relationship existing between the legislative branch and Indian tribal groups, the experiences of tribes in the Court of Claims held particular dynamics which were exclusively distinctive in many ways. It is my hypothesis that congressional plenary power over Indian tribes and the influential legislative control which Congress exercised over the Court of Claims combined to put Indians in a litigatory environment which doomed the possibility for the majority of tribes to achieve successful redress of grievances.
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Johnson, Michael Leonard. "Guardianship law : doctrine, theory, objective." Thesis, University of British Columbia, 2014. http://hdl.handle.net/2429/50832.
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Guardianship is a vital legal process designed to recognize and protect personal and property interests. The societal need for guardianship is growing, yet guardianship law is obscure and its theoretical foundation is uncertain. The first part of this thesis examines the historical foundation and doctrine of English law concerning persons with profound intellectual disabilities – then called “idiots.” Surprisingly, the theory or doctrine of parens patriae played only a limited role. After an examination of the royal prerogatives of the monarch, I conclude guardianship was an “active use” that survived the Statute of Uses. A use is a form of trust, but the phrase “theory of use” is utilized to reflect its unique form, distinguishing it from other kinds of trusts.
The second part of this thesis constructs a theoretical framework for guardianship law today. A theory of use recognizes that after the migration of English law to the United States, such a theory must be compatible with state constitutions and must be modified to take into account that change in the form of government. There are two central features of a use, separation of title and protection in a court of equity. Title is separated into a ward’s equitable right and a guardian’s legal title. The guardian is assigned a positive role as legal title holder, especially in relation to other interest holders. Utilizing legal title includes processes of assuming title, protecting the ward’s rights and interests, and acting in the ward’s best interests. A guardian’s wide discretion in a highly individualized context is subject to legal, financial and practical limits. The features of equity are well-suited to protect the ward’s equitable right.Law, Faculty of
Graduate
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Gordon, Randy. "Rehumanizing law : a narrative theory of law and democracy." Thesis, University of Edinburgh, 2009. http://hdl.handle.net/1842/2655.
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When we think of “law” in a popular sense, we think of “rules” or the institutions that make or enforce those rules (legislatures, the police, courts, etc.). But where do these rules come from and what makes them legal rules? Put differently, does a rule’s status as a legal rule mean that it is sealed off from the influence of other systems of human knowledge and inquiry (like the humanities)? There are many possible answers to these questions, but the one that I am concerned to examine in my work arises from narrative, which is one of the most fundamental modes of human expression. By keeping narratives at a distance or delay, law loses (and has indeed lost) some of its essential humanity. My project is, then, an attempt to explain the relationship between law and narrative, and—in the end—to suggest ways to rehumanize law by reconnecting it to its narrative roots and certain cognates in the humanities. To do this, I retell dozens of law-stories within a theoretical framework derived from literary, legal, and political theory.
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Shoraka, Shahram. "World trade dispute resolution and developing countries : taking a development approach to fair adjudication in the context of WTO law." Thesis, London School of Economics and Political Science (University of London), 2006. http://etheses.lse.ac.uk/1962/.
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The founding of the World Trade Organization in 1995, was hailed as a new era in resolving global trade disputes, with many academicians espousing a constitutionalised vision of world trade law. The constitutional evolution of WTO law is founded, not only on the text of the WTO Covered Agreements, but is also buttressed exceedingly by precedence and norms that are generated through adjudication by the panels and the standing WTO Appellate Body. Today, as is with most mature legal systems, international lawyers and academics avidly critique WTO jurisprudence and the interpretive methodology of its adjudicators. However, there is a dearth of scholarship on the implications of WTO law interpretation on developing nations. This thesis fills this void in research by constructing a framework for analysing the jurisprudence of the WTO from the perspective of developing nations. Subsequently, it proceeds to evaluate three agreements which are important for developing nations, i.e., the DSU and due process rights, the TRIPS Agreement, and the Antidumping Agreement. To this end, the framework for analysis is termed "the development approach" to fair adjudication, which is grounded on established legal concepts of legitimacy, justice and ultimately fairness. The thesis demonstrates that a fair trading regime entails more than seemingly balanced treaty texts, but rather that adjudication of the treaties must include an approach, which recognises and accounts for the effects of interpretation on development. To this end, the adjudicators have to go beyond merely finding the literal meaning of the treaty text, but embrace an approach, which is guided by the context and purpose of WTO provisions. The analysis reveals that the adjudicators of the WTO have failed to recognise the nexus between interpretation and development and as such, have created a body of case law that harms the development ambitions of third world countries.
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Van, der Walt Johann. "The impact of the Administrative Adjudication of Road Traffic Offences Act on the employment relationship." Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1038.
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The focus of this dissertation is the impact that the Administrative Adjudication of Road Traffic Offences Act 45 of 1998 (AARTO) will have on the employment relationship between employers and employees. AARTO was promulgated in order to, amongst other things; assist with the streamlining of the traffic offence administration and the collection of payable fines for traffic infringements. Very little has been written with regard to the implications of AARTO on the employment relationship. The purpose of this dissertation is to unpack the mechanics of AARTO, and further to provide the writer’s view on its impact, problems and possible solutions, of the employment relationship within the South African Labour law framework. The writer will attempt to reconcile the Labour Relations Act and AARTO insofar as it impacts on the employment relationship, more especially the termination thereof. Writer will set out the provisions of AARTO and the sections pertaining to the allocation of demerit points on an individual driver’s licence. Unfortunately for the sake of completeness the writer will deal with the majority of sections in AARTO to provide a better understanding of the mechanisms envisaged by the Act to bring about the demerit points. It is writer’s view that dealing with the allocation of demerit points in vacuum will not provide the reader with a clear understanding of the impact of AARTO on labour relations. With regards to the actual implications that AARTO will have on the employment relationship writer has taken it upon himself to provide a categorization of employees in the broad sense and thereafter to discuss the impact of AARTO on the different categories of employees. More over the writer will examine the different categories of dismissal specifically misconduct, incapacity and operational requirements as well as the impact and applicability of AARTO thereon. vi The writer will also attempt to deal with peripheral issues that arise as a spinoff or AARTO insofar as employment relationships are concerned.
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Moore, Adam D. "A Lockean Theory of Intellectual Property." Connect to resource, 1997. http://rave.ohiolink.edu/etdc/view?acc%5Fnum=osu1214419634.
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RIBEIRO, ASTROGILDA MOREIRA ASSIS. "METHOD, NORM AND TOPICS IN LAW: A CRITICAL LAW THEORY." PONTIFÍCIA UNIVERSIDADE CATÓLICA DO RIO DE JANEIRO, 2002. http://www.maxwell.vrac.puc-rio.br/Busca_etds.php?strSecao=resultado&nrSeq=3779@1.
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O professor Friedrich Müller busca dar ao Direito um método
que lhe seja próprio. Para tanto, ergueu uma proposta
metodológica que se projeta do plano teórico ao prático.
Isto é, seu papel é fundamental dentro da teoria do Direito
e de seu processo de aplicação. Tendo em vista essa dupla
dimensão de sua metódica jurídica, tornou-se essencial a
este texto a análise de sua teoria da norma jurídica e
o seu tratamento aos elementos de aplicação tradicionais do
Direito, bem como outros elementos que vem a ser inseridos
no processo de concretização.Professor Dr. Friedrich Müller researches for the proprial Law method. He raised a methodical proposal which projects Itself from a theoretical level to a practical one. That is, your paper is primary in the Law theory and in your application process. Because of the juridical mehtodic with a double dimension, It became essential to this text the analysis of his juridical norm theory and his treatment to the tradicional Law application elements, well as the others elements inserted in the application process.
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Cavani, Renzo. "What is a judicial decision? A brief analytic study for Peruvian civil procedural law." IUS ET VERITAS, 2018. http://repositorio.pucp.edu.pe/index/handle/123456789/123369.
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In this essay two basic legal concepts, judicial decision and adjudication, are explored in the light of the discipline of Peruvian Civil Procedure Code of 1993 (CPC). This analysis is made from an analyticdogmatic perspective, aiming to show that an adequate use of those concepts is decisive to solve practical problems, foremost in the field of the appeal.En el presente trabajo se exploran dos conceptos jurídicos básicos, resolución judicial y decisión, a la luz de la regulación del Código Procesal Civil peruano de 1993 (CPC). Este análisis se realiza a partir de un enfoque analítico-dogmático, buscando demostrar que un adecuado trabajo con dichos conceptos es decisivo para resolver problemas prácticos, sobre todo en el ámbito de la impugnación.
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Kwong, John Ka Sing. "Conflict avoidance and dispute resolution methods for public works contracts and the adoption of dispute resolution advisor system and adjudication in Hong Kong." access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b20833659a.pdf.
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Mokal, Rizwaan Jameel. "Corporate insolvency law : theory and application /." Oxford [u.a.] : Oxford Univ. Press, 2005. http://www.gbv.de/dms/spk/sbb/recht/toc/380111381.pdf.
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Univ., Diss.--London, 2001.Formerly CIP. Includes bibliographical references (S. [341] - 351) and index. Introduction : consistency of principle in corporate insolvency -- The creditors' bargain and the collectivity of the liquidation regime -- The authentic consent model : justifying the collective liquidation regime -- The pari passu principle and its relationship with other methods of insolvency distribution -- The priority of secured credit -- Administrative receivership and the floating charge -- Administration -- The wrongful trading provisions -- Adjusting transactions involving distressed companies.
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Brady, Britain. "A positive theory of liberal law." Thesis, University of York, 2009. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.516509.
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Chang, Howard Fenghau. "Essays in law and microeconomic theory." Thesis, Massachusetts Institute of Technology, 1992. http://hdl.handle.net/1721.1/12880.
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Isailović, Ivana. "(Mis)recognition : essay on transnational law, identities and marginalization." Thesis, Paris, Institut d'études politiques, 2014. http://www.theses.fr/2014IEPP0004.
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Cette étude examine à la lumière des notions de reconnaissance et du déni de reconnaissance qui sont toutes les deux issues de la philosophie politique, l’articulation entre le droit international privé (« le DIP ») et la discipline des droits de l’Homme dans le contexte transnational. La problématique centrale étudiée ici est la suivante : de quelle manière est-ce que les luttes politiques pour la reconnaissance des identités marginalisées, modifient-elles les raisonnements et les techniques de résolution des conflits transnationaux employées par les juges nationaux ? En philosophie politique, la reconnaissance suppose le respect de l’altérité et de la différence de l’Autre. Contrairement à la reconnaissance, le déni de reconnaissance renvoie aux processus culturels et économiques qui engendrent et renforcent l’humiliation et le mépris quotidiens pour ceux dont les identités diffèrent de la norme sociale. L’argument général défendu dans ce travail est le suivant : les processus de décision dans l’espace transnational, c’est-à-dire les modes de raisonnements juridiques, reproduisent les stigmatisations des identités individuelles et collectives. Le DIP et les droits de l’Homme légitiment et participent ainsi à des processus politiques d’exclusion des communautés qui ont été culturellement marginalisées au cour de l’histoire et continuent de l’être. Le droit légitime ainsi le déni de reconnaissance qui constitue déjà l’espace politiqueThe broad questions this work is addressing are the following: How are the contemporary struggles for recognition by marginalized identity groups affecting legal practices used by domestic judges in order to resolve questions related to the competent forum, applicable law and legal recognition of foreign judgments? In order to answer these and other related questions, the present study analyzes the interplay between PIL legal practices and human rights norms, in the light of the political notion of recognition and misrecognition that I borrow from political philosophy. The broad argument that I make is the following: the processes of adjudicative decision-making in the transnational context that are traditionally regulated by private international law are conducive to instances of political misrecognition. Misrecognition casts light on instances in which legal transnational practices enforce the political failure to accept the stigmatized individual and to interact with him or her on an equal footing. This argument will be examined using three specific legal questions: the legal recognition of the Muslim talaq divorces in French courts; the recognition of legal transnational effects of same-sex unions and adoption by same-sex couples, and the recognition of indigenous peoples’ land claims
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Marmor, Andrei. "Interpretation in legal theory." Thesis, University of Oxford, 1990. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.386453.
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