Search

The right of individuals to reparation is well established in international human rights law (IHRL) and States have an obligation to provide adequate and effective reparation. Transitional justice (TJ) is a process whereby societies transitioning from authoritarianism to democracy or from conflict to peace address past violations through mechanisms of truth, justice, reparation, and guarantees of non-repetition. Reparation in TJ is often provided through domestic reparation programmes (DRPs), an out of court process that provides better access and quicker reparation for victims. However, TJ States often have to provide reparation to large numbers of victims while facing many competing obligations and scarcity of resources. This has led to claims that the existing legal standards of adequate and effective reparation are impossible to fulfil and inappropriate for DRPs in TJ contexts. These claims are however made without much analysis of existing legal standards, to what extent they are unsuitable for DRPs in TJ contexts, and what standards to apply instead. This thesis aims to clarify these issues. Looking at case-law from regional human rights systems and UN treaty bodies, it provides an original and in-depth analysis of legal standards of reparation in IHRL. This thesis also explores the nature of DRPs and the specific challenges of providing adequate and effective reparation in TJ contexts. It finds that the standards developed by the IHRL framework are usually unworkable for DRPs in TJ contexts. Therefore, this thesis suggests a novel re-interpretation of the standards of adequate and effective reparation for DRPs in TJ contexts, based on the dual purpose of reparation in TJ, which takes into account all TJ factors, including the number of victims and available resources. This would allow States to consider what reparation is adequate and effective both for the victims and for wider society undergoing a TJ process.

This thesis concerns: (a) how we should understand legislative words and phrases if they have changed in meaning since they were enacted; and (b) how the UK courts have actually done so. The key question is: should we give legislative language its original meaning (treating its meaning as 'static'); or, if not, should it be given its current meaning (treating its meaning as 'mobile')? I claim that, to address this 'temporal issue', we need to recognise that legislation is generally 'always speaking'. This means that we are to treat it as if it were being constantly re-enacted, and therefore to treat is as if it is able - like, say, traffic signs - to 'speak' to new facts and situations as they arise, on an ongoing basis. But this raises a key question: does legislation necessarily 'say' the same thing each time it 'speaks'? The 'always speaking' metaphor suggests we should give legislation its current meaning; but this creates certain problems, particularly for old legislation where the meaning of words or phrases may have changed radically since the time of enactment. I suggest a two-fold response to this temporal issue. First, that whether legislative language should be given its original meaning (or, if not, it should be given its current meaning) should turn on what the original enacting legislature objectively intended on that question. I call this 'intention-dependence'. Second, that we need to distinguish three notions of meaning that can (and do) differ in mobility. The first notion of 'meaning' is application - roughly, the things that the legislative words apply to at a particular time - and it is typically mobile. A common response to the temporal issue is to distinguish application from meaning, and to give legislation its original meaning but its current application. This response, I argue, is inadequate: because 'meaning' (as opposed to application) conflates two further notions which legislatures often intend to differ in their mobility. The second notion ('character') is the abstract, purely linguistic, meaning of words: the notion of meaning that dictionary definitions attempt to capture. We will usually best understand what someone meant by what they said if we give their words their original character. For example, Queen Anne said of the newly-built St. Paul's Cathedral that it is "awful, artificial, and amusing". To understand that she was complimenting, rather than criticising, the Cathedral's architects we need to travel back to 1711: when those words meant 'awe-inspiring', 'artistic', and 'thought-provoking'. The third notion ('content') is a more concrete, practical, notion of meaning: it is what tells us what a word or phrase actually applies to. Consider a law made in 1791 that forbids 'cruel punishments'. The character of 'cruel' is much the same now as it was in 1791, but what counts as being cruel today is very different from what counted as cruel in 1791 (when flogging and ear-notching, for example, were common punishments). We seem to want to give this law its current content - so that, today, it forbids flogging and ear-notching - rather than its original content. In Part I of this thesis, I articulate these three notions of meaning, show their utility in modelling adjudication, and relate them to three types of uncertainty in meaning: vagueness, context-sensitivity, and ambiguity. I show that this tripartite meaning framework admits of four general approaches to the temporal issue, depending on which notions of meaning are static or mobile. I then address some questions about these approaches: when a legislature might use concept-words referentially, and whether the original legislature's expectations as to how a provision will be applied are binding. Finally, I review some reasons for or against adopting these approaches, and I suggest that they most strongly favour the approach that treats legislative content (and application) as mobile but treats its character as static - which I call a 'Character Originalist' approach. In Part II, I turn to identifying the UK response to the temporal issue. I start with the historical (pre-1997) UK approach. I argue that the standard account of this is flawed: as the two doctrines on which that account is based do not establish what they are standardly taken to establish, and UK courts have treated the content of legislative language as mobile in appropriate cases. I then turn to the modern (1997-) UK approach. I analyse Lord Steyn's landmark judgment in Ireland (1997) and I show that it established two principles: (a) intention-dependence; and (b) what I call the 'Mobility Presumption'. I explore the sources of Ireland, and its aftermath, to identify which notions of meaning we are to presume to be mobile; and I hypothesise that the UK approach is, generally, Character Originalist. Finally, I test that hypothesis against the UK case law: and I conclude that there is strong support for the hypothesis. The meaning of UK legislation may therefore, generally, evolve over time - but only within the bounds set by its original character. So the solution to our puzzle is to recognise the sense in which we must give legislation its original meaning (character) and the sense in which we must give legislation its current meaning (content).

This thesis examines the intersection of migration, family and law in Austria to argue that this arena governs populations through the production of a racializing hegemonic biography. I conceptualize the hegemonic biography as racializing knowledge that circulates generic plots and figures which orientate lives in defense of the national family. I regard this as a particularly seductive technology of power for the enforcement of law, which engenders significant societal effects. I follow the hegemonic biography around; in High Court cases arbitrating the Right to Private and Family Life, media discourse, and in scholarly knowledge production about family reunification and the domain of autobiographical literature. I read this material together to show how the plots and figures are authored across a range of arenas, spanning multiple authors. Ultimately, the thesis exposes how the hegemony of plots and figures is anything but self-evident and requires their repeated authoring. The hegemonic biography's authorship is complex, comprising competing strategic investments into different figures and plots, as well as numerous ways in which the hegemonic biography is resisted. Building on critical race scholarship and feminist literary theory, I show that the hegemonic biography produces racializing knowledge not only because it authors the lives of Europe's others as obliterable figures in need of "good" orientation towards whiteness. Moreover, the analysis unpacks how the hegemonic biography maintains investment in whiteness, notably in authoring figures of whiteness such as the national family and its related national family home as an exclusive white possession, which must be defended. Based on my empirical findings, I show how society is being articulated through the plot of a "family in crisis", thus orientating lives around hierarchical relations of investment, inheritance and debt towards the national family home. It is against this background that I argue that Foucault's (2004) formula "Society Must Be Defended" is more accurately read as "Family Must Be Defended".

When the Arbitration Act 1996 came into force on 31 January 1997 it had two aims: to consolidate the existing laws and codify arbitration practice as it then was in England and Wales. The Departmental Advisory Committee (DAC) then charged with drafting the new Act elected not to address the issue of confidentiality, preferring the law to develop on a case-by-case basis. Appropriate at the time, a quarter of a century on that approach to confidentiality and privacy is looking increasingly anachronistic: society demands transparency in all its various branches, not least the judicial system. This thesis argues that the Arbitration Act 1996 should be reformed with respect to privacy and confidentiality. It begins by exploring the differences between privacy and confidentiality and tracing the development of those concepts. A comparative analysis is conducted of arbitral confidentiality in jurisdictions outside England and Wales, and the rules and terms of selected arbitral institutions worldwide. The various studies into arbitration since the 1970's provide insights not only into the views and opinions of those closely involved in arbitration, but also potential alternative approaches. Widespread criticism of the status quo has come from many quarters: academics, practitioners, lawyers as well as senior members of the judiciary. Two aspects of the Arbitration Act 1996 that are commonly considered as being in need of reform are those relating to the appeal of arbitral awards and confidentiality. Focusing on the primary issues of confidentiality in arbitration, the thesis asks who and what are bound by these obligations? Is confidentiality an implied term as held by Potter LJ in Ali Shipping Corporation v Shipyard Trogir - an approach subsequently criticised by the Privy Council in Associated Electric and Gas Insurance Services Ltd v European Reinsurance Co of Zurich (Bermuda), where their Lordships expressed reservations about the desirability or merit in so characterising a duty of confidentiality? Lord Hobhouse viewed any attempt at generalisation to be unworkable: It runs the risk of failing to distinguish between different types of confidentiality which attach to different types of document or to documents which have been obtained in different ways and elides privacy and confidentiality. Generalisations and the formulation of detailed implied terms are not appropriate. This thesis explores the reasons why confidentiality should be codified with respect to the arbitral process. That those involved - the parties, institutions, arbitrators, solicitors and witnesses - should be bound by its provisions. It argues that there is a pressing need to address the gaps in the current law such as the consolidation of proceedings and the use of materials generated during the course of an arbitration. Equally important is the need to create a framework that determines how awards are used in related arbitrations and litigation, whilst meeting the societal expectations of judicial transparency. The stunting of commercial law and the hindering of its development due to the dearth of published awards is addressed threefold: by making award publication the default rule; requiring copies of all arbitral awards to be deposited with the courts; and enabling redacted awards to be published. The modernisation proposals continue by addressing and requiring transparency when third party funding is utilised; by defining and addressing exceptions including those in the interests of justice and what constitutes in the public interest. I view it as a fundamental necessity that the ethics, transparency and disclosure obligations of every arbitrator is core to ensuring the integrity and continued success of English arbitration. The arguments that excessive intervention, whether judicially or by statute, risk London's place in the world of arbitration are in my view misguided. An emphasis on openness, ethics and transparency will ultimately be more beneficial to English arbitration. The thesis concludes by proposing amendments that codify privacy and confidentiality in the Arbitration Act 1996.

The practice of defining and determining 'who is dead' is no longer a medical or biological determination. It is instead a moral standpoint on what lives are not worth living; the traditional definition of death has been redefined and now retains merely a single foothold in biology. That single foothold seems to be the capacity to voluntarily respond above the level of reflex and may therefore explain how life support withdrawal is deemed defensible from living patients, even where their subsequent death is foreseen. Therefore, the practice impacts cognitive disability on the whole and not only those with prolonged disorders of consciousness, i.e., vegetative and minimally conscious state patients (PDOC patients). For example, how else could antibiotics be withdrawn from a dementia patient knowing that they will succumb to deadly infection? Nevertheless, this thesis explores the moral and legal justifiability of life support continuation decisions via a case study on PDOC patients. It seems that life support discontinuation from living patients who have lost the capacity to voluntarily respond also lose their personhood status: the recognition and endowment of equal moral and legal protection for those holding that inherently valuable characteristic of human life and may also demonstrate why the judgments' oftennoted moral inconsistency cannot be explained by intention or causation-based arguments alone. Therefore, the thesis argues that at the heart of best interests decision-making regarding life support continuation is a hidden war on personhood in which further skirmishes include: identifying the indicia of personhood, the justifiability of life support withdrawal from (living) PDOC patients and assessing whether best interests assessments are indirectly discriminatory to them. The answers to these questions are vital for exploring whether the definition and determination of death needs to be reappraised by legislators and medical regulatory bodies. The thesis' core question asks: is the definition and determination of death in England and Wales defensible, given its implications for PDOC patients? That core question is set within a philosophical framework to enable fair assessment which may also help answer whether such judgments can be accurately described as dilemmatic cases that employ values-based decision-making. Accordingly, the relationship between death, cognitive impairment and personhood is explored to challenge the adopted theory of social justice and demonstrate why it is not enough to assume that they are persons, nor that death's definition and determination does not impact PDOC patients in law and medicine.

This thesis examines the UK's supposed victim-centred approach in developing its latest national anti-trafficking legislation - the Modern Slavery Act (MSA) 2015. Offering an original contribution to the knowledge base, it considers whether the UK's national legal framework is sufficiently equipped to protect women who are trafficked for the purposes of sexual exploitation and whether it meets international human rights standards. The thesis analyses the gradual development of international anti-trafficking law and policy, demonstrating the way in which this has influenced the UK's national resolve to address this complex phenomenon. It presents a critical legal analysis, comparing the MSA to the UN Palermo Protocol, the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), and EU instruments and policy positions. Original data, using mixed methods, has been collected from policy makers and lawyers, using surveys and in depth interviews. Key themes explored include the shift in language from human trafficking to modern slavery and its effect on legislative responses to human trafficking, and whether the MSA delivers sufficient protection to victims at the various stages of a case. The stages are victims' identification and the provision of long and short-term support, their protection as offenders and the protection of victims during their asylum applications and applications for discretionary leave to remain in the UK. Provisions for victim protection and support must be robust and clear in each stage of the legal process, if the protection offered by legislation is to be sufficient: a standard that this thesis suggests has not been met through development of the MSA. The thesis concludes that the MSA is flawed in a number of crucial ways. It does not fully comply with international standards, nor does it substantially advance victim protection because it continues to focus disproportionately on crime control within a policy context preoccupied with limiting irregular migration.

All states are subject to emergency circumstances that may suggest special responses challenging the normal rule of law. The debate between Oren Gross and David Dyzenhaus asks how emergency powers can be best designed and employed to prevent their abuse and 'normalization' - the phenomenon by which the use of exceptional powers leaves persistent traces of their use in a state's normal institutions of government. This dissertation argues that containing normalization on the terms proposed by Dyzenhaus and Gross is unlikely to succeed because ideas about what emergency entails have expanded in the modern age, contributing to this normalization,and that these phenomena have been fuelled by intellectual features of modernity itself that the debate leaves largely unconsidered. The dissertation traces the contribution of this process, beginning with the medieval origins of modern ideas on emergency powers. This is a different point of departure from the current literature, which mostly focusses on classical precedent, and in particular the Roman idea of dictatorship. The dissertation argues that while the classical model is influential, too exclusive a focus on it obscures the precise nature of the change in thinking about emergency powers in the modern period. The medieval distinction between 'iurisdictio' and 'gubernaculum', or between that part of the activity of government that was restrained by the rule of law, and the functions of government that are limited only by the ruler's responsibility to God, is an important source for the theoretical distinction the dissertation employs between instrumental and non-instrumental law. Instrumental and non-instrumental law represent two ideal types of law. Non-instrumental law is concerned to provide a legal framework for the relations between members of a state, but leaves them free to choose their own purposes. Instrumental law treats law as an instrument of policy and subordinates the members of a state to the pursuit of one or more shared goals. In actual states, legal systems combine elements of both concepts of law. But emergency tends to shift the balance towards the instrumental perspective. War in particular imposes the overriding purpose of securing victory and this tends to be reflected in lasting changes in the law of the state. But ideological and technological factors have also made a significant contribution. The dissertation traces this process in outline in the early modern and medieval periods in relation to the idea of martial law in particular. It then offers a much more detailed analysis of some of the key episodes to do with colonialism, the two World Wars, and the ideological conflict involved in the clash between the Western and the Communist powers after 1945. It shows that the cumulative effect of all these episodes has been to create a more or less permanent and global condition of emergency that has been treated in legal terms in an ever more instrumental manner, liberating the executive to behave in a way unrestrained by considerations of due process. In the twenty-first century this situation has become so normalised that the contrast with the view of emergency in which 'iurisdictio' plays a significant role has been almost lost. But it argues that there has been nothing inevitable or necessary about this process and that in principle a response to emergency that does not eliminate procedural considerations associated with the non-instrumental rule of law remains both possible and desirable.

In this thesis, I take a gender perspective to consider how Herodotus presents the rule of law in the Histories. Demaratus introduces Xerxes to the Spartan military nomos which compels men to 'win or die', making it an external despotic force to be feared more than the command of a tyrant. However, Herodotus as narrator observes that people have an internal attachment to their own rules, which include the regulation of gender performance and involve women as much as men. I show that, although most women were excluded from legal and political institutions, devalued by gender ideology, and prevented from exercising power, they were involved in the regulation of everyday life, which is a key aspect of the rule of law in the Histories. I adopt a socio-legal methodology to examine how women and men live with a variety of rules, political, religious and social, and adopt a range of strategies to do so. The rule of law is also a normative ideal which is used by Herodotus to interrogate power, in particular the nomos of tyranny. I use a range of case studies to show how a focus on gender helps us to think about abuse of power, excess and arbitrariness. For Herodotus, respect for nomos is necessary whatever one's status and gender, and operates within a network of relationships, depends on the performance of appropriate roles and is contingent on reciprocity. I argue that the rule of law is a powerful force in the Histories precisely because it combines external coercive force, internal rule of conduct and normative ideal.

This project develops an ontological analysis of law. It starts by characterising law as a layered practice constituted by the performance of various types of group activities at two levels: the social and the institutional. At the social level, it examines the conditions for social groups to create and sustain standards of conduct through normative social practices of recognition. At the institutional level, the investigation moves to the conditions required for legal organisations to carry out the legal activities that constitute a legal practice. These two levels are studied through the lenses of ontological accounts of social groups, group action, and collective intentionality. In the first part of the project, Hart’s Social Practice Theory of Law is discussed. His theory is used to present a social facts-based explanation of law’s reality and to introduce a fundamental element in the social construction of law: the internal point of view. Though this theory provides the groundwork for the analysis of certain essential properties of law, this project argues that it lacks an account of how legal organisations are created. To fill in this gap, this project considers next MacCormick’s Institutional Theory of Law. By discussing each of its main elements, it is shown that, while his theory improves on Hart’s by introducing an explanation of both how institutional groups come into existence and how they are involved in the creation and maintenance of an institutional normative order, it needs further development. Specifically, an account of the different forms of group structures and the participatory intentions involved in the performance of legal activities is needed. This is addressed in the second part of the project, which is dedicated to advancing a thorough analysis of the social construction of law based on the merits of these prominent legal theories. In the last three chapters of this thesis, novel accounts of collective intentionality and the ontology of social groups and group action are explored and used to provide the elements missing in MacCormick’s legal institutionalism. In particular, this project considers Thomasson’s work on the metaphysics of artifacts to address problems concerning the ontological status of social constructions; Tuomela’s theory of social practices and we-intentions to develop an explanation of how sociality is constructed out of group attitudes and group actions; Ludwig’s analysis of institutional agency to explain the constitutive elements based on which institutional groups perform rule-governed group activities; and Ritchie’s theory of organised groups to clarify the various kinds of group structures involved in law-activities. The result of this project is a fresh, interdisciplinary theory of the institutional nature of law.

This thesis analyses professional identity formation in a university legal advice clinic and the tensions, dilemmas and conflicts that arise between contrasting idealistic and technocratic ideologies. The research is built upon solid theoretical foundations and draws upon the concepts of Bourdieu’s habitus and field, Weber’s value spheres and rationality for social action and Knorr Cetina’s epistemic cultures. Through embedding theory into the research, the study acknowledges the participant’s agency but also considers the underlying generative structures for knowledge and action. The thesis considers the literature outlining the destruction of the personal narrative in dialogical interactions between lawyer and client. It also examines the neutrally detached case method approach to legal education and alternative approaches to both traditional lawyering practices and educational pedagogies. Adopting a predominantly ethnographic approach, with idiographic elements, it presents a robust methodology, including uncomfortable reflexivity and a rigorous iterative analysis, within a pilot study, to reduce potential bias. The thesis examines the participants’ sense of meaning and the explicit, implicit and tacit messages relayed within dialogical discourse. A range of identities emerges, with the experiential context of both the students and supervisors proving important to their rationalities. The students display dispositions ranging from anxiety to kinship and a beneficent character, whereas the supervisors relate the importance of procedure and collection of information. Analysis also identifies the influence of the formalistic and economic spheres of power and the tensions and conflicts that arise in seeking to invoke a more personal and relational approach to the learning of law. This innovative research moves the field of legal education forwards into a new domain, at a time when legal educators need to both question current methods and invoke new ways of thinking about the law. It considers not just what legal education is, but what it ought to be.

Reunification posed multiple challenges to the societies, economies, and polities of East and West Germany. On a political, legal, cultural and symbolic level, strategies needed to be found to incorporate the divided – and potentially divisive – past into a forward-looking historical narrative. This study locates the ‘border guard trials’ in the wider context of post-Socialist transitional justice in East Germany since 1989 and asks how they were historically framed by the complex history of German attempts of ‘Vergangenheitspolitik’ (Norbert Frei) with regard to Nazi crimes. Moreover, this dissertation examines how the criminal proceedings were ideologically shaped by Cold War confrontations, and how competing conceptions of illegality and state crime mirrored those ideological and historical contestations. In studying the political and societal echoes of these criminal trials, my study finally also contributes to a better understanding of fractured views on and memories of German re-unification in contemporary Germany. In chapter 1, the Zentrale Erfassungsstelle der Landesjustizverwaltungen will be portrayed as an institutional embodiment of West German contestations of the legitimacy and legality of the German Democratic Republic (GDR) and its border regime during the Cold War. In chapter 2, legislative proceedings of 1992/93 are examined as a proxy debate on the appropriateness and legitimacy of criminal trials against former GDR officials. Chapter 3 studies the brief period of East German transitional justice between November 1989 and October 1990 and argues that criminal trials against former elites were widely demanded by East German citizens. Chapter 4 analyses the border guard trials as a case study into judicial practice, its limits, and its achievements, and contrasts them with the proceedings presented in the previous section. Chapter 5 explores societal echoes of the trials and explores why and how they largely failed to give legitimacy to the new political, social, and economic order.

As a long-standing issue both for the main actors of the conflict and the international community, Cyprus has been on the UN’s agenda including several attempts at brokered solutions. The international efforts to resolve the enduring problems have borne little fruit. However, one of the most innovative has been the establishment of the Immovable Property Commission (IPC) in the north to address claims relating to property abandoned by Greek Cypriots who fled south. This thesis considers two sets of question raised by these events. The first concerns why the IPC was established, how it functions, the challenges it faces and how these might be addressed. As a lawyer working for this unique institution, I fully recognize that, together with other methodological issues, this privileged perspective creates a host of well-rehearsed challenges considered more fully later. The second concerns how the IPC can be characterized with respect to the vast and varied literatures on, for example, security, peace, conflict, civil war and transitional justice. This study concentrates upon the IPC alone, and situates it within a transitional/transformative justice framework, for the following principal reasons. First, rising to the challenge of describing how this unique institution operates, and seeking to identify its strengths and weaknesses, would make a distinctive contribution to scholarship allowing others to make comparisons they may deem appropriate. Second, because the IPC is undeniably a “justice” institution which has emerged out of a series of transitions Cyprus has undergone since the 1960s, these two characteristics would necessarily occupy centre stage whatever the governing analytical framework. Finally, in addressing one type of injustice, the IPC may also, paradoxically and inadvertently, be contributing to others, including the deeper institutionalization of partition, a conundrum which has significant policy implication.

This study analyzes the connection between the Peace, Order & Good Government doctrine (‘POGG’) and responses to requests for faith-based legal exceptionalism in England, Canada, and the United States. By assessing certain aspects of the three nations’ imperial/colonial heritage, the study demonstrates that POGG acts as the catalyst for their disparate approaches to constitutionalism (i.e., church-state arrangements). The connection is significant since the concept of multiculturalism has seemingly become the basis for justifying extraordinary accommodation requests that include not only non-democratic political ideologies but also constitutionally-challenging religious choice of law preferences. The prevalence of requests for accommodation has been more recently linked to migrants from nations where religion and government are inextricably bound. As such, this study demonstrates the imprudence of relying on multiculturalism when responding to constitutional inquiries that necessitate a return to foundational principles. By revisiting more recent requests for Islamic law exceptionalism, this study assesses POGG’s foundational connection to the national rejoinders of England and Canada. This study then advocates for the United States to return to foundational principles to frame a prudent rejoinder to similar requests, which will likely prevent an unprecedented enlargement of the 1st Amendment to the U.S. Constitution.

What would an approach to constitutional theory grounded in morally sceptical philosophy look like? This is the core question underlying this thesis. The thesis seeks to pose some answers by first elaborating a form of moral scepticism - drawing on a linguistic anti-foundationalism inspired by the pragmatic, anti-metaphysical philosophy of Richard Rorty to set aside the idea of "objective moral truth" - and applying it to issues of constitutional theory. In drawing on the internal logic of the moral scepticism set out, with an effort to exclude as many external assumptions as possible, what results can be described as a sceptical contribution to constitutional theory. The core conclusion is that morally sceptical, anti-foundationalist philosophy has significant and constructive contributions to make in this area. To demonstrate this, the thesis contributes to some of the most fundamental issues of constitutional theory: namely, the basis of legitimate collective decision-making authority; the potential limits to such authority; and the issue of entrenchment. The road to these contributions is wider than pure constitutional theory, however: the task at hand also requires this thesis to engage in detail with more fundamental issues of moral, political, and most prominently democratic, theory, thus laying out a sceptical take on these further topics in the process. The results will be of interest to constitutional lawyers and philosophers alike. They will certainly come as a surprise to some, given the widely-held view of moral scepticism as an entirely destructive, debilitating, or otherwise dangerous philosophy. In a sense, then, this thesis can be seen as a counter to such negative pictures: in a climate where "post-truth" has become something of a dirty word, owing largely to recent outcomes in democratic politics, the positive and empowering contribution of this thesis, along with the robust defence of majoritarian democracy it offers, seems timely.

This study examines the possibility of managing the tension between formalism and flexibility in Uganda's commercial adjudication. Using content analysis of the country's commercial 'hard cases', the study reveals the tension as a reality in Uganda; its foundations, and how to manage it. The central argument is that the tension should and can be managed by creating coexistence between formalism and flexibility; such coexistence being not only theoretically justifiable, but practically viable. The tension is revealed as a reality in Uganda, defined by judging based on two seemingly polarised views. One is the formalistic view of law as logic, a value free science, predictable, certain, clear, neutral, conceptually ordered, and determinate; with court's role limited to literal interpretation and mechanical application of law and contract. The other is the flexibility antithesis to formalism, following which, courts have authority to interfere with contracts, and make or change law to meet ends. This study contributes to challenging the dominant view, that the two are irreconcilable. I make a case for coexistence, arguing that: there are more areas of theoretical convergence than admitted; justifications advanced for either approach can be served by the other; no single theory of adjudication or contract fully accounts for all judging; and in Uganda, coexistence is the ideal judging paradigm. I review conceptual and normative prescriptive adjudicatory theories and find that none offers a convincing solution to the tension, the nearest being Eisenberg's conventionism and interests jurisprudence. However, the latter offers a more methodical mechanism to coexistence⎯one whose steps demonstrate its affinity with content analysis methodology. Using content analysis methodology, following which, the values underlying legal phenomena can be understood from an analysis of words, phrases and themes used in judicial opinions, as well as inferences, guided by hypotheses or presuppositions from relevant legal theory, I operationalise some of interests jurisprudence's views. These are that, underlying the tension is a competition of interests (values) to be discovered from judicial opinions, guided by the context's jural postulates. The discovered values should then be weighed, and a balance of the dominant ones used to arrive at ultimate judging guidelines. Accordingly, Uganda's competing values are identified, guided by presumptive values (value postulates) proposed by other scholars in contract theory⎯but challenging monist theories that advance single values as the ultimate goal of adjudication and contract law, as well as those restricting the search to doctrinal analysis. Instead, in line with coexistence theory; multiple values, internal and external to the judiciary, legal as well as extra-legal, are found to underlie the tension in Uganda's commercial adjudication. These values are elaborated, against the backdrop existing literature, and the relevant legal and other institutional contexts have surrounded judging. The values found dominant are then used to draw the country's commercial adjudicatory scheme of values. As a way towards management of the tension, it is proposed that coexistence between formalism and flexibility can be achieved through constructing judging guidelines with clear coexistence oriented goals, and containing rules, principles and standards, informed by balancing such key values.

In Europe there is wide agreement that the rule of law - along with democracy and fundamental rights - is one of the core concepts of contemporary legal orders. According to Article 2 of the Treaty on European Union (TEU), respect for the rule of law is one of the values on which the European Union (EU) is founded and which is 'common' to the Member States. It is seen as 'the backbone of any modern constitutional democracy', and as such one of the EU's ideological building blocks. Moreover, advancing the rule of law, democracy and fundamental rights can be described as part of the EU's raison dêtre. Absent from the original Treaties, the rule of law gradually appeared in the realm of EU law and the text of the Treaties. Today, the rule of law has evolved into a 'constitutional principle' of the EU and plays an important role in different areas of EU law. According to Article 49 TEU, the rule of law is a prerequisite for the accession of new Member States (MS). Articles 7 and 2 TEU give legal expression to the presumption that current EU Member States respect and observe the values listed in Article 2 TEU. Lately, however, the political situation in some Member States has made prominent that there are deficiencies with respect to the rule of law so grave that their conformity with basic EU standards is seriously questioned. The fall of the Berlin Wall in 1989 marked the demise of communism in Central and Eastern Europe (C&EE) and left behind an institutional vacuum .This unique opportunity to build new political, economic, legal and social systems sparked an old debate about the relationship between law and development. Institutions, in particular the rule of law, have taken centre stage in the rhetoric of law and development scholars and in policy programmes of international institutions. The rule of law has not only become a condition for financial aid packages, but is moreover condition for membership of 'exclusive clubs' such as the EU. However, making accession conditional on the rule of law is problematic. The vague nature of the concept raises questions not only regarding the practicability of using the rule of law as a measure, but also regarding the efficiency and effectiveness of conditionality as a tool for legal reform. This thesis examines the effectiveness of the rule of law as condition for EU accession. It evaluates the effectiveness of rule of law reform, in particular in connection with the impact of external influences on the process of legal change in the context of EU accession and transition in post-communist countries. The research question is: how effective is the rule of law concept as condition for EU accession? By analysing the EU rule of law conditionality through the lens of New Institutional Economics (NIE) in the context of law and development studies, the research provides a new synthesis of existing theories to lend insight into processes of legal reform and institutional change. The study expands our understanding of the role conditionality plays as an incentive in the processes of EU accession and its adequacy to strengthen the rule of law. In this research, a novel multi-dimensional model of the rule of law was developed. The model provides predictions about rule of law reform in new EU Member States and aspiring Member States. It has also wider implications for a wider range of countries in the developing world which embark on externally driven rule of law reform.

In the last four decades, transitional justice processes and mechanisms that confront the legacies of historical injustices have become ubiquitous. Criminal trials, truth commissions, amnesties, hybrid tribunals, reparations, restitution and reconciliation have been the dominant approaches in that encounter with the past. These mechanisms and processes have largely remained within narrow Western and Euro-centric, top-down, donor-driven and state-centric frameworks. However, these processes and mechanisms have struggled to respond to the multi-faceted dimensions of justice after conflict to the extent that they have failed to be relevant and responsive to the justice needs and expectations of victims. These mechanisms and processes have continued to be completely decontextualized from the circumstances of those that endured the impact of mass atrocities. While victims have become central to transitional justice scholarship and practice, their perceptions and expectations of justice have rarely been placed at the heart of mechanisms and processes that seek to address the injustices they endured. Using a grounded theory methodology undertaken in Cape Town and East Rand, South Africa between January and July 2016, 52 participants were interviewed through semi-structured and unstructured interviews. Cape Town was chosen because it is an emblem of the journey that South Africa has traversed as a country. It is where the first European settlers arrived in 1652, later becoming the seat of the colonial and apartheid regimes in which racial segregation policies were promulgated and executed. The large black townships of the East Rand were chosen because they represent a different dimension of the black-on-black violence between supporters of the ANC and the IFP—induced by apartheid—that continued right to the end of minority rule. The major findings of this research demonstrate that transitional justice is understood and interpreted by victims of apartheid in varied and dissimilar ways. Most significantly their perceptions of justice premised on restoring their humanity must be incorporated into the design and implementation of transitional justice processes and mechanisms in order to be responsive to their needs and interests. The study further underscores that what victims of apartheid expected from the transitional justice processes and mechanisms remains unmet, 23 years after the TRC concluded its work. Perhaps by integrating these expectations in the design and implementation of its processes and mechanisms, transitional justice could have better responded to their needs and interests. To that end, the thesis advocates for a wider conception of transitional justice-one that is relevant and responsive to the needs and expectations of apartheid’s victims. The thesis proposes that this broader conception must ensure that victims are part of the design and implementation of transitional justice processes and mechanisms.

The importance of 'place' for mental and physical wellbeing is well-documented. Yet profound social, economic, and technological changes increasingly challenge those who regulate, own, fund, develop, manage, operationalise, and/or use places. This generates tensions between competing stakeholder interests and potentially affects the continued existence of different places. I present my research against a backdrop of combined cross-disciplinary concepts that include: space and place, legal geography, temporality, legal pluralism and governance. I examine gaps in the literature around the interactions between regulatory forces and exhibited behaviours, and their potential influence on the future existence of particular places. The overarching aim of the research programme is to explore law's manifestations in private/public places. To achieve this, I developed a grounded theory research strategy. I also implemented multiple methods, including law in action, doctrinal and empirical approaches, to generate robust findings and minimise methods bias. My collection of seven publications demonstrates an overarching theme of place-sustainability. The research programme makes a four-fold contribution. First, it adopts a specific combination of perspectives and methods for investigating: perceived manifestations of law; the law's quest to achieve a balance of stakeholder interests; relationships between place-related regulatory forces and exhibited behaviours; inter-stakeholder tensions; and, their combined influence on the future existence of places. Second, it demonstrates how a multi-disciplinary approach can be used to generate new understandings of place-sustainability within the context of a particular range of private/public places. Third, it evidences the complex nature of place-sustainability, particularly around: the enduring prioritisation of property ownership and occupation, the tensions between competing stakeholder interests, and the general inefficacy of a black-letter approach. Fourth, it details recommendations for combining legislative development, collaborative working, and supporting structural and cultural change to ease inter-stakeholder tensions and support place-sustainability within the context of a dynamic environment.

Restorative justice is an aspirational social movement with Indigenous roots. Around the world, an increasing number of schools are implementing restorative justice as a behaviour management mechanism and in some cases, as a means of transforming everyday interaction and relationships. Correspondingly, there is an expanding body of literature on the potential positive effects of restorative justice in education (Brown, 2018; Cameron and Thorsborne, 1999; Hendry 2009; Hopkins, 2002; Karp and Breslin, 2001; McCluskey et al., 2011; Morrison, 2006; Thorsborne and Blood, 2013). However, amidst this optimism, there are considerable gaps in our knowledge of how restorative justice is "characterised and operationalised" in the everyday operation of schools (Morrison and Vaandering, 2012, p.148). To gain a better understanding of restorative justice in schools, I negotiated access to three primary schools in Ontario, Canada where significant time was spent observing, interviewing and collecting documentary information. The primary research question was: How is restorative justice constructed, and embedded within primary schools? And the sub-question: How does restorative justice interact with the school's educational mission? The findings illustrate the complexities of restorative justice in schools. The three schools had different histories with restorative justice and were at different stages of implementation. In an established whole school approach, restorative justice was largely viewed relationally, whereas in two schools with a new commitment it was most commonly described as a behaviour management technique used by staff. However, there were significant similarities across sites. In all three schools, leaders were essential to the construction and embedment of restorative justice. Gaining buy-in was a process that took time and continued far beyond implementation, yet what occurred was not overtly called or labelled "restorative justice," and students in all three schools were unfamiliar with the terminology. However, questions and dialogue were essential to how restorative justice was constructed and embedded. Circles were the most visible practice, and while punishment was understood as oppositional to restorative justice, it was still utilised. By considering restorative justice with educational theories on social control and radical change, I was able to explore how and to what extent restorative justice represented a change. This interaction was complex and multidimensional. However, when restorative justice was viewed as a relational ethos, it was seen as transforming the entire school.

Approaches to the practice of international criminal justice have largely focused on the relationship between institutions, states and communities. This has overlooked the role of other actors, such as intermediaries, in justice processes. This thesis examines the place of intermediaries in international criminal justice with a particular focus on the International Criminal Court (ICC). Through this examination it is argued that international criminal justice also takes place in in-between spaces. The central insight of the thesis is that in-between spaces are productive of particular forms of international criminal law practices. These in-between spaces are not captured in dominant international criminal law literature and they are hardly capable of regulation. Furthermore, much of the literature on intermediaries overlooks the existence of these practices because it tends to study the relationship between intermediaries and the ICC through global/local lenses. The thesis develops the concept of in-between spaces, both analytically and empirically, to illuminate these practices of international criminal justice to which intermediaries give rise. To that end, the thesis conceives intermediaries as mediators of the Court's work in in-between spaces and that opens up new conversations about the way in which knowledge is produced, subjects are represented and power is exerted in these in-between spaces. Next, the thesis discusses the question of security. I argue that the Court is unable to fully protect intermediaries in in-between spaces. Therefore, it should partner with other stakeholders. Lastly, this research discusses the issue of accountability. I argue that intermediaries' accountability is complex because in-between spaces produce different accountability registers. While the Court captures a small fraction of intermediaries' accountability, intermediaries are accountable to other actors such as donors and states. What is more, the current framework of accountability does not provide for the Court's accountability toward intermediaries. The thesis concludes that the ICC should enhance its partnership with intermediaries and change some of the ways in which it currently relates to them because in-between spaces are productive of a new kind of practice of international criminal justice which is not captured by existing literature and law. Despite the challenges that such engagement may bring, intermediaries are indispensable to the Court's work on the ground.

Land-based supplies of freshwater are being increasingly exploited and polluted at the same time that climate change and burgeoning human population are causing widening scarcity and rising demand. Scientists have discovered that vast quantities of fresh to slightly brackish water reserves are sequestered in continental shelves around the world. These reserves take two completely different forms: aquifers and methane hydrates. Neither of these reserves has been commercially developed, and, while current technology could be utilized for aquifers, methods for extracting freshwater from methane hydrates do not yet exist. Given the vital and unique nature of freshwater, offshore freshwater resources will become more attractive as the quality and quantity of land-based supplies dwindle. The purpose of this thesis is to fill the void in legal scholarship concerning governance of offshore freshwater resources. At least three different legal regimes are relevant: the UN Convention on the Law of the Sea, customary practices for offshore hydrocarbon development, and customary international law for land-based freshwater. All of these regimes have obligations to protect the environment and to cooperate with neighboring states, and all of them ensure sovereign rights to domestic natural resources while encouraging states sharing transboundary resources to seek equitable solutions. Similar to other natural resources, development of freshwater will have two distinct phases:access and distribution. Under current governance structures, access to and ownership of offshore freshwater would be assigned to coastal sovereigns,either exclusively or on a shared basis where the resource is transboundary. Distribution of natural resources has thus far been viewed as a prerogative of sovereign rights to access and ownership. However, emerging principles such as the human right to water, sustainable development and ecosystem protection have begun to place limitations on unfettered distribution rights by directing that freshwater be allocated to certain beneficial purposes.

International labour migration has become an issue widely addressed in international relations, due to the many spheres that are related to this area, such as economics, human rights, labour rights as well as sociological issues. In recent years, the Middle East and especially the countries of the Gulf Cooperation Council (GCC) have become some of the most sought-after labour destinations in the world. As a newly oil-rich nation, Kuwait relied on foreign workers to fill the gaps in the labour market that existed due to a shortage of skills among the local population. Modern infrastructures, large-scale projects and basic services such as health care and education all needed human resources that were unavailable at the time. The reliance on foreign labour in Kuwait has increased rapidly in the last forty years and shows no signs of abating. What began as an effort to import labour for the purpose of building and developing modern infrastructures in a recently oil-rich nation, has developed into a reliance on foreign labour that generates a great deal of wealth for nationals, without offering proper protections for those laborers. Millions of Asian men and women migrate to the GCC seeking better opportunities for their families in their home countries, however in most cases this is less dependent on legal guarantees of labour protection and more on luck. In theory, unskilled foreign laborers, like other expatriate workers in Kuwait, are granted the same legal rights that are granted to nationals. Although there are some exceptions pertaining to nationals in the labour laws, in general, both groups are protected by the Kuwaiti Constitution, as well as international agreements that Kuwait has signed. In practice, however, the situation is very different. Due to the confines of the sponsorship system, and the immense control over workers' lives it grants nationals, unskilled foreign workers face widescale discrimination and violations of their rights every day, a situation that is best described as forced labour and slavery. In many cases, the failure of the government to act in respect to the abuse of migrants' rights reveals its inability to balance its international and national obligations. The purpose of this thesis is to show how the lack of enforcement of national and international labour and human rights laws concerning unskilled foreign workers in Kuwait constitutes modern slavery and forced labour. There are three main factors that will be addressed: the lack of enforcement of existing national laws, as well as international treaties and conventions; the ways in which the sponsorship system, as it exists today, is in breach of international laws and human rights standards; and the responsibilities of governments, recruitment agencies, and other organizations involved with migrant labour. Issues such as wages, housing and working conditions, dispute resolutions, and labour contracts will be discussed.

A key trend in laws and policies aimed at combatting terrorism is the increasing use of policing strategies that allow law enforcement officers anticipate risk so that they can engage in preventing, interrupting and prosecuting those suspected of terrorism offences before their commission. One such pre-emptive policing strategy is the use of terrorist profiling. The rationale underpinning terrorist profiling is to allow law enforcement officers identify those likely to involved in terrorism or its associated activities so that law enforcement officers can prevent, interrupt and prosecute suspects before an act of terrorism. The use of terrorist profiling is highly controversial given that its use has been perceived as being unlawful. Previous attempts to analyse terrorist profiling has tended to rely solely on human rights law as the analytical lens to evaluate the usefulness and lawfulness of terrorist profiling. The discussion in this thesis argues that the effectiveness and usefulness of terrorist profiling should only be undertaken by deconstructing the profiling process so as to allow a thorough examination of the phenomenon of terrorist profiling. As a result, the discussion in this thesis establishes two analytical lenses as the basis to systematically examine terrorist profiling. Firstly, the discussion develops an effectiveness framework that examines the construction of terrorist profiles separately from the application of terrorist profiles. Secondly, the discussion also draws upon criminal profiling methodologies and approaches as the basis to evaluate different manifestations of terrorist profiling. These analytical lenses are used to conduct a taxonomy on different manifestations of terrorist profiling so as to systematically evaluate their usefulness as a law enforcement tool to predict likely terrorist characteristics.

The question of who qualifies as an investor stands as one of the foundational issues of international investment law. However, it has been argued that the notions of nationality and the origin of capital are increasingly irrelevant within structure of international investment law. According to this view, practices such as treaty shopping have been submitted as being a true reflection of the multilateralized nature of investment law and a manifestation of its purpose. However, the response of other stakeholders in the regime particularly host states, suggests that this view lacks consensus. One of the manifestations of this differing position is the increasing incorporation of the denial of benefits (DOB) clause as an in-treaty mechanism for limiting the practice of treaty shopping in international investment agreements and treaties. The DOB clause has been argued to be an effective remedy possessing the potential of limiting treaty shopping, and serving as a vehicle for birthing stability and predictability in international investment law and arbitration. It is the veracity of this position that this work seeks to test. At the heart of this research is the determination of the question of the effectiveness of the DOB clause as a mechanism for limiting treaty shopping.

In the UK, professional ethical guidance from the Royal College of Veterinary Surgeons requires that informed consent is obtained before treatment is given to animal patients. This consent should protect the patient from inappropriate treatment, the client from unexpected costs and the veterinary professional from complaints by evidencing the client's agreement to proceed. In this thesis, I utilise a socio-legal approach to conceptualise consent in veterinary practice. Using elective neutering of companion animal patients as a case study, I analyse relevant jurisprudence on informed consent in medicine to illustrate an ideal rooted in the autonomous human patient's right to choose, or refuse, treatment. Acknowledging the animal patient's lack of autonomy, I explore parallels with decision-making for young children, which usually incorporate a 'best interests' calculation. Tensions between autonomy and beneficence-based consent are explored via three linked empirical studies, involving analysis of veterinary consent forms, observation of consent consultations and interviews with key participants. Resulting data are interpreted in light of doctrinal research, demonstrating the value of interpretive description as a methodology for socio-legal studies. Finally, I propose a new model of consent for veterinary practice that recognises the appropriate balance between autonomy and beneficence, together with a re-designed consent form.

The thesis analyses the conduct of business regulation ("COB") regime of South Korea in comparison with the UK regime and assesses how well the COB regimes of the two countries have achieved the regulatory objective of preventing over-the-counter derivatives 'mis-selling'. The thesis conducts a comparative study in three regulatory areas of the COB regimes: rule-making, rule-enforcing and private enforcement. In terms of rule-making, the UK formulates its rulebook using various rule-types and this enables to build foundation to satisfy both stability and rationality; South Korea, due to constitutional, political and historical constraints, creates a rulebook with only precise and clear rules, which, as a result, is one of the causes for the overall COB regime's rigid legalism. In rule-enforcing, the UK relies on the goodwill of the regulated firms and selects the compliance-focused enforcement approach but in the end, such a soft enforcement strategy has failed in achieving the regulatory objectives. South Korea's deterrencefocused enforcement has produced regulatory failure that the regulator as well as the regulated firms focus on the letters of rules instead of the regulatory objectives. In private enforcement, in the UK, the dissonance between the principles of private law and the COB in dealing with mis-selling of derivatives sometimes results in confusing situations where an action is subject to sanctions under the COB but not recognized as a liability under private law. In South Korea, because the COB is binding on the courts, there is no dissonance between the COB standards and private law; rather, the court's approach of focusing on the substance of the COB requirements is complementing the regulator's process-focused enforcement. Based on the comparative study, the thesis recommends for the UK to harmonize private law with the COB by placing the COB as the minimum requirement of private law. For South Korea, its recommendation is to shift the whole regulatory system from command and control style to the decentred one.

This multidisciplinary thesis is located at the intersection of legal theory and design. It synthesises the practical question of how code regulates (using theories including James Gibson's/Donald Norman's affordance, Don Ihde's postphenomenology, and Madeleine Akrich's inscription) with a legal-theoretical view of what constitutes legitimate regulation (using theories including Lon Fuller's internal morality of law, Luc Wintgens' legisprudence, and Mireille Hildebrandt's legal protection by design). Proceeding from the notion that code is an a-legal normative order, I argue that even (and indeed especially) in the absence of suitable or sufficient legal regulation, the norms of that order ought to be legitimated. This is particularly true given the unique characteristics of code as a regulator, which include its ruleishness, opacity, immediacy, immutability, pervasiveness, and, perhaps most importantly, its production by private enterprise. Having set out how code regulates from the perspective of the design theories mentioned above, I explore these characteristics from a legal-theoretical perspective, developing the concept of computational legalism, a uniquely strong form of the undesirable ideological phenomenon of legalism. This is the first significant contribution of the thesis. Having set up the parallel between legal and technological normativity, I explore the extent to which ex ante mechanisms for ameliorating legalism in the creation of legal norms can be translated into the 'legislature' of the design environment, to be applied in the creation of code-based norms. The motivating idea is that the standards that make legal norms legitimate ought mutatis mutandis to be applicable to other normative orders that enable and constrain individual behaviour. The literature has so far tended to focus on ex post assessments of code's operation, and to that extent it fails to account for computational legalism and the standards that must be met - by definition during the production process, ex ante - in order to mitigate or avoid it. Taking all of this into account, the second significant contribution of the thesis is a 'constitutional' framework of digisprudential affordances that I argue ought to be present in all user-facing code, in order to ensure that certain foundational capabilities are provided by the design. The affordances I identify are: contestability; transparency of provenance, purpose, and operation; choice; oversight; and delay. They act as a formal mechanism for constraining what substantive code can possibly do, imposing 'thin' constitutional design standards that ought to be met regardless of the 'thick' purposes or functionality of the digital artefact. I discuss how these might be implemented in practice through an analysis of two contemporary technologies, the Internet of Things and blockchain applications. This practical element of the thesis connects with the last significant novel contribution, namely an exploration of Cornelia Vismann and Markus Krajewski's concept of the programmer of the programmer, and how this 'constitutional actor' can be used to impose digisprudential limits - analogous to HLA Hart's secondary rules - within the code development process.

The Space In-between is an examination of the experiential nature of custodial remand for women in Northern Ireland. Using a critical feminist methodology, it provides insight into women's personal and political experience of crime and punishment within the dynamics of the political economy and a 'post-Conflict' society. Women involved with criminal justice are conceived as having distinctly gendered pathways into prison, where they experience gender specific pains of imprisonment. This thesis dismantles women's 'offending pathways' using a lens of intersectionality, which allows the interrelationship of structural oppressions and state policies, conflating 'need' with 'risk', to be located in the criminalisation and punishment of women. In recent years, prison reform has seen the production of 'gender responsive' policies and environments for the containment of vulnerable women in prisons. This thesis challenges official discourses and disentangles the discursive and ideological transformations which reframe prison as a rehabilitative environment for women, from the material punitivity experienced in prisons. This highlights the deflective nature of criminal justice and prison reform, which masks the reality of imprisonment to create an 'imaginary penality' (Carlen 2008) and disguises the continuum of trauma and violence which vulnerable women experience, one which is extended and exacerbated by prison (Moore and Scraton 2008; Carlton and Seagrave 2014). A tension exists between the factors that produce remanded women's imprisonability, and the proportionality of prison as a response to the 'risk' they pose, a fact that raises questions regarding court remand decision-making, and their debilitating outcomes for women. This thesis suggests that remanded women exist within a continuum of liminal marginality, one that feeds into their criminalisation prior to prison, characterises their experience of prison as an institution focused towards the needs of a) men and b) sentenced prisoners, and embeds their marginal status post-release. The liminal temporality of both the remand period, and remanded women's rotation between multiple sites of punitive governance, serves to locate them in 'a space in-between', one with uncertain and unmapped delineations.

In the aftermath of widespread human rights violations, states may engage in a process of transitional justice in an effort to diffuse conflict, prevent further violence, and promote reconciliation in society. Though transitional justice is a broad term that may encompass both judicial and non-judicial mechanisms, prosecution of perpetrators is frequently held to be of great importance, particularly by human rights organisations and victims’ associations. This thesis evaluates claims regarding the benefits of prosecutions, specifically their effects on building the rule of law, and identify the factors that play a role in how and under what conditions prosecutions are able to contribute to the development of the rule of law, where prosecutions are a central strategy of transitional justice. Although it has been suggested that prosecutions will contribute to the rule of law in an essentially linear fashion, it may be that prior conditions within the state determine the degree to which prosecutions are able to make a positive contribution to the development of the rule of law. Drawing on three case studies of countries that have undertaken domestic prosecutions as a primary transitional justice strategy – Argentina, Serbia, and Bosnia-Herzegovina – this thesis suggests that prosecutions will be more likely to contribute to the development of the rule of law where legal institutions already have capacity to enforce the norm of accountability by taking on politically sensitive and complex trials, there is a civil society that promotes legal accountability, and there is elite support for the prosecutions. Prosecutions may, therefore, contribute to the development of the rule of law under certain conditions but not in all circumstances.

This thesis explores the conditions under which the immediate and local narratives of communities might produce a culture of resistance. Focussing primarily on research with the Chakma people of Chittagong Hill Tracts (CHT), it recounts the complex role of legal pluralism in sustaining communities as political units in the postcolonial state, exploring how law’s framing narratives produce different iterations of communitarian legal practice ostensibly within the same postcolonial legal form. This exploration uses a conceptual frame of ‘critical communitarianism’, which draws specific attention to the parallels between political identity and legal culture, and community and legal mobilisation within a legally plural setting. Using legal culture and mobilisation as analytical tools, this thesis unpacks the relationship between law, power and resistance in a context where community and state are inherently unstable. In the post-conflict CHT, it appears that the processes of colonisation and de-colonisation have caused the boundaries and ideations of community to be highly mutable and contested, yet these very instabilities appear to diffuse power more equally across the community, and subvert the colonial legacy of feudal hierarchies. To further illustrate this hypothesis, the brief contrast drawn between the CHT and an Indian Chakma community demonstrates how a rigid system of constitutional recognition under the Sixth Schedule of the Indian Constitution has an ossifying effect on communitarian law; recognition reinforces an elderly and conservative customary elite and ultimately pushes communitarian legal practice to the margins of community. The thesis concludes that conditions of crisis appear to diffuse power across communities, causing dynamic and resistant interpretations of law and culture to emerge from within non-state communities.

The thesis is composed of two sections. The first provides a critical overview of the published work assembled in the second. This body of work is composed of journal articles, monographs, papers published in educated collections and research reports. Though these papers address a range of different subjects from street robbery, the culture of gun users to the study of urban street gangs, what unifies these papers is that they collectively help make sense of the violent street world occupied by young men, overwhelmingly from deprived backgrounds, who use weapons, collectively and individually, in street confrontations. In the critical analysis the term violent street world is defined and the body of published work which examines it is then contextualised; first, by a consideration of the external political and social forces that led to its production; second, by reference to the internal academic traditions in which and at times against which these papers were produced. Rather than approach the study of the street world by reference to the actors who inhabit it, the crimes they do or the weapons they use, the thesis makes a case for making the street world itself the object and focus of enquiry. The street world is then studied thematically in four chapters. The themes selected are: street crime in a historical context, the aetiology of street violence, the structure and organisation of the street world and the distinction between street representations and street realities. The analysis concludes with reflections on the key contributions the work assembled has made to our understanding of violent street worlds and their social analysis. The work is original in so far as it contests many current myths that have been proposed to explain street violence while producing more compelling explanations for it. These help explicate why the violence occurs, how and why it is changing, who is involved and why people engage in it.

Climate change is a major reason why fresh thinking is required in order to promote the application and diffusion of ESTs. Intellectual property rights (IPRs), particularly the patent regime discussed in this thesis, carry a high degree of influence over the development of ESTs. There have been many studies on the relationship between ESTs, patents and climate change; the role of patents in stimulating the innovation of ESTs by providing some preferential treatment; and global and regional EST-related patent activities and trends. However, little light has been shed on how to use patent systems to increase access to ESTs, or to consider how to establish a special patent system based on the particularity of ESTs. This thesis explores whether a differentiated patent regime for ESTs is feasible, in the context of climate change, with the goal of enhancing access to ESTs. It argues that the inherent disadvantage of the current patent system, which centers on the strengthening of exclusive rights, is counterproductive to wider diffusion of ESTs. By analyzing the existing coordination arrangements around patents and climate change, this thesis finds that solutions under the United Nations Framework Convention on Climate Change (UNFCCC) are a flawed vision and the flexible terms in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) are not as adaptable to changes as expected, so a more eclectic approach is required to manage the EST-related IP issues. This means that IPRs need be re-examined in the context of climate change, to examine a solution which will both avoid the prevailing over-emphasis on the inviolability of private rights in the world trading system, while simultaneously seeking a solution which will overcome the shortcomings of being devoid of legally binding arrangements under the climate regime. Departing from previous research which fails to examine in a systematic way the discord between the structure of patent rights and access to ESTs, this thesis examines the structure model of patent rights specially designed for ESTs, and its role in addressing climate change as its research object. Several lessons drawn from the comparison between pharmaceuticals and ESTs indicate that efforts on the development of an appropriate patent protection in line with ESTs' own characteristics are worthwhile. With the objective of enhancing access to ESTs, the proposed patent regime in this thesis is constructed under a quadrilateral platform, with WIPO as core coordinator, which is conducive to harmonizing patent protection in the context of climate change. The study contributes to the dispute on the question of what should be the appropriate legal approach to deal with IP issues in climate talks. For a specific type of technology with particular functions, a refined and differentiated legal system is necessary. This is demonstrated in two senses: a system that discourages non-environmentally sound technologies and a system providing value-based protection for different types of ESTs. The proposal put forward in this thesis turns a reward system, into a system that aims to green the innovation environment and is suitable for technology diffusion, by using multiple variables of a patent system. The study explores from the perspective of law and economics an appropriate structure model of patent protection specially designed for ESTs, which consists of patent intensity (patentability), length (duration), and breadth (width). Different levels of the three dimensions have different incentive effects on the innovation and accessibility of technologies. Based on the quasi-public nature and characteristics of ESTs, an optimal combination of the three dimensions is put forward, which suggests that the level of the grant standards be raised; the length be extended; the breadth be narrowed, for the sake of public welfare. Accordingly, differentiated protection with value-based judgment at its core, is proposed for different types of ESTs, giving priority to the innovation of basic and core ESTs and accessibility of improved and combined ESTs. Located in China, as one of the largest emitters of green house gases (GHGs) with a great potential for emission reduction, the discussion regarding how to flexibly apply this differentiated patent regime in different jurisdictions is based upon China's biased development of ESTs and actual demand for ESTs, against the background that the implementation of patent protection must work with characteristics of EST-related industries at a national level. This study finds that differentiated patent protection is desirable for China in two main aspects, namely, the actual working and local innovation, and therefore could have a very positive impact on the building of China's green innovation environment, as well as enhancing effective competition for ESTs around the world. Throughout, the study made full use of patent systems to increase access to some necessary ESTs for emission reduction in key concerned industries. What is more, the far-reaching significance of establishing a special regime under WIPO lies, not in the attempt to provide an alternative system for national laws, but in the demonstration of the flexibility and inclusiveness of the IP system under WIPO, in response to new potential challenges, which will enhance coordination between IPRs and other fields.

The Government Procurement Agreement (GPA) is one of the plurilateral trade agreements of the World Trade Organisation (WTO). It aims to liberalise trade in government procurement among its Parties. While it has many strong points, the GPA does not legally define what entities should actually covered by the Agreement. Notably, the evolution of the GPA has produced a list approach, whereby Parties list their 'covered entities' in a series of schedules. Unfortunately, the plurilateral nature of the GPA accession negotiation as well as the stringent reciprocity features of the list approach have complicated the accession negotiation, and discouraged Parties from providing a 'wider' rang of entity coverage. This turn of events has limited the effectiveness of the 'Most-Favoured-Nation' obligation, and thereby handicapped the GPA expansion. Moreover, this approach raises some tensions and lack of legal certainty as regards which are the entities covered by the GPA, especially in connection with entities that are not strictly 'government entities' such as State-owned enterprises (SOEs). This problem is exacerbated in the case of modern SOEs in developing countries, many of which can bear both public and private features. In order to avoid the drawbacks of the list approach mentioned above and response to the focal point in GPA accession negotiation, the author attempts to define 'what is a government entity' as a reference to address this problem raised by lack of precise definition on the entities that are subject to the GPA. Based on the analysis of the WTO adjudicatory reports under the multilateral agreements and the most recent influential free trade agreements, the thesis advanced is that generally, 'commercial SOEs' (namely SOEs engaging in commercial activities on a commercial basis), and 'public SOEs' (namely SOEs performing public functions under government controls or influence) must be treated differently under the GPA based on the nature of its activities, rather than their formal legal status. The thesis argues that only public SOEs should be covered, whereas commercial SOEs should not. The author arrived at this conclusion by conducting two parallel comparative studies, first, between public SOEs and 'bodies governed by public law', and second, between commercial SOEs with 'public undertakings & undertakings with special or exclusive rights', under EU Directive 2014/24/EU and Directive 2014/25/EU respectively. The studies clarified that a government entity must be defined by establishing an immediate and decisive causal link between government control and losing commercial freedom when carrying out activities. The existence of government control is identified from both the internal and external tier of the relationship between the entity and a government. Whether the entity competes with commercial freedom in the market where it carries out activities, can be judged by examination of the contestability of the market where the entity carries out its activities; the market power of the entity; and whether governments restrict the entrance to this market of new market competitors. Conclusively, the author submitted that the definition of 'government entity' consists of general scope and justification: generally, all governments and government-controlled entities shall be covered by the GPA at the first instance. However, if the controlled entity can prove that it operates in a contestable market (i.e. where it competes with other market players for commercial purpose), then the entity should be excluded from GPA coverage.

While most people care about having access to legal services when they need them few are interested in how legal services are regulated. It is considered a technical subject best left to those who actually care, like lawyers themselves. That is what has happened in the United States-the regulation of legal services has been left to a small number of lawyers who make decisions for the entire country about how legal services can-and, especially, cannot-be delivered. They do this in the absence of public accountability or transparency and in the wake of near total abdication by state authorities who, on paper, actually have regulatory power. The result? As regards "accessible and affordable civil justice," the World Justice Project Rule of Law Index ranks the US 96th of 113 countries. Countries like Afghanistan, Belarus, El Salvador, Russia and Uganda are ranked higher. Those countries provide better access to civil justice than the United States. The inability of many, if not most, people in the US to enforce their rights raises serious questions about the legitimacy of the country's legal system as well as rule of law and democracy itself. In contrast, Australia ranks 40th, Canada 47th, the UK 60th. While not perfect, they are doing something right. By comparing them to the US, this research exposes the direct link between how legal services are regulated and how people are-and are not-able to access those services. This research demonstrates how the problems plaguing legal services in the United States can be addressed only by radical changes: to the rules that govern how legal services may be delivered, to who has the power to make those rules, and, ultimately, to the country's entire regulatory environment. This research is based upon an extensive review of both primary and secondary materials and upon 65 in-depth interviews conducted with those who have created, are managing, are employees of, and/or have invested in alternative legal service providers in England & Wales, Australia, Canada, and the District of Columbia, and the people who regulate them.

This study seeks to determine whether the government of Saudi Arabia, in promoting its Vision 2030 project, can strike a balance between safeguarding the Kingdom's Islamic heritage and protecting the interests of foreign investors in Saudi Arabia. Following a critical review of the extant literature, it establishes that the government has been unable so far to achieve that delicate balance because of the rigid interpretation of the Shari'ah by traditionalist and anti-Western (anti-international) doctrinaire scholars who became prominent after 'the closing of the gates of ijtihad' (independent reasoning). The study also establishes that the Shari'ah has been fundamentally flexible from the earliest times, and that early Muslims embraced free trade, and preferred arbitration as dispute resolution mechanism without gender bias. Thus, this study tests the hypothesis that the rigid interpretation subsequently imposed by doctrinaire conservatives explains why the use of the Shari'ah to settle disputes constitutes an obstacle to FDI in Saudi Arabia. In order to test the hypothesis and achieve the research aim, a mixed methods approach is employed that involves both doctrinal and empirical methods. The latter is used because the Shari'ah is not codified and courts are not required to comply with any precedent, making it difficult to predict outcomes either in Saudi courts or in arbitral tribunals, wherever in the world arbitrators sit. The study reveals that although the rigid interpretation and application of the Shari'ah is an obstacle to FDI, the Hanbali fiqh should be interpreted and applied in a flexible manner in regard to commercial matters, including international commercial arbitration. Moreover, other Schools of Jurisprudence, such as the Hanafi, are much more flexible than the Hanbali School of Jurisprudence. As such, it is important to determine whether judges and arbitrators in Saudi Arabia, and arbitrators sitting outside Saudi Arabia, may refer to a Sunni School of Jurisprudence other than the Hanbali School in order to invoke another interpretation of the Shari'ah that is more advantageous to trade and investment in Saudi Arabia. This is in line with the istihsan principle that enables Islamic judges to choose more equitable solutions where a literal interpretation of the Quranic verses may not promote the public good, or may cause a detriment to the general public in Saudi Arabia.

This PhD thesis examines the conflict between two Yoruba sub-groups in Nigeria (the Ife and the Modakeke) which has been continuing for more than a century. The thesis assesses the prospects for the resolution of the conflict by identifying the historical, anthropological, social, and legal backgrounds to the conflict. It evaluates, with reference to international and national laws, preventive and resolution interventions and processes that may lead the groups to a form of self-determination. In this form of self-determination, the Nigerian State would grant the Modakeke sub-group independence from the Ife, and internal self-determination for the Ife and the Modakeke. The Nigerian State would continue to be responsible for the protection of the groups by keeping them apart from each other. The hypothesis of the thesis is that the government of Nigeria should be advised that, the Ife and the Modakeke people, having been in conflict with each other over land, status, and identity issues since pre-colonial times and with the frequency of violent conflict having increased since the end of colonialization, will continue to be in conflict with each other because they have not been effectively separated from each other and to resolve the conflict the groups must be separated. Separation here refers to economic and political separation by means of granting internal self-determination through a Local Government Authority dominated by Modakeke and located in Modakeke occupied land within the Nigerian Federal system; physical separation is not feasible for resolving their conflict in modern Nigeria. In taking these steps to separate the groups, the government of Nigeria would act so as to ensure separate land rights, and separate economic and political status for each ethnic group relative to the other --primarily by allowing the Modakeke group to have its own local authority, and by providing appropriate monitoring to ensure the continuation of peaceful relations between the two groups so that each can experience a modern, internal economic and political autonomy within the Nigerian State. The thesis examines the ability of the international community under customary international law and the African Union to intervene so as to require the Nigerian State to carry out their responsibility to protect the Ife and the Modakeke groups from any human right breaches and negative consequences resulting from the conflict. Furthermore, the thesis assesses some aspects of the role of the African Union in putting pressure on the Nigerian government to reach a resolution of the conflict between the two groups. The ultimate aim of this thesis is to examine the Ife-Modakeke conflict with the primary objective of making recommendations to the government of Nigeria for resolving the conflict. However, as it reflects wider and structural issues, it can partly serve as a case study about conflict resolution in similar disputes. In this way, the study contributes to the effectiveness of resolving the Ife-Modakeke conflict in Nigeria and more widely in Africa. The main research method used in this thesis is the case study method using archival materials, document analysis, maps, and interviews in Nigeria with clearance from the Ethics Committee of the University of Westminster.

The Kingdom of Saudi Arabia (KSA) has been heavily criticised for not following international human rights law (IHRL) norms, yet a closer examination of changes in the Kingdom in the period 1990 to 2016 show there has been a significant change in approach. This change has occurred even while KSA has maintained that it is only bound by IHRL norms consistent with Shari'ah (Islamic law). In this context, using an empirical examination, this thesis provides original insights into the processes by which the KSA's engagement with IHRL influences its domestic law, and assesses the adequacy of existing theoretical models in explaining how international law influences a State's law and practices. Having identified lacunas in the existing literature and empirical research base, this thesis considers four main questions: What changes have there been in the KSA's law and practice that reflect a greater engagement with IHRL?; What are the factors to which key actors attribute these changes?; To what extent are the changes due to the KSA's engagement with IHRL?; and Have the IHRL mechanisms been useful from the perspective of promoting and protecting women's rights? In-depth, semi-structured interviews were conducted with relevant stakeholders. The research found that there has been a significant change in the Kingdom's approach of dealing with the IHRL: a number of developments in the KSA's domestic law regarding women's political and civil rights are the result of its interaction with IHRL, in particular its ratification of the Convention of the Elimination of All Forms of Discrimination against Women (CEDAW). Alongside the role of IHRL, the study emphasises the role of the State's policymakers in triggering the domestic changes that comply with international norms. The changes in domestic law were also attributed to other internal factors including political and social environment factors. The research concludes that the process of the interaction between the Kingdom and IHRL mechanisms is best explained by the transnational legal process model. Importantly, the study finds that the internalisation of the norms of IHRL into the KSA's domestic law is more likely to be effective in relation to practices that are seen as influenced by cultural tradition rather than those practices that are viewed as having as basis in religion. This research recommends, because of the importance of Islamic law, further empirical research on the role of Muslims states' interaction with IHRL on promoting human rights utilising mixed-methods approaches incorporating both large-samples of interviewees and further in-depth case studies.

The supposed deterrent and retribution 'tough on corporate crime' model may have been promising when corporate criminal liability was recognised over a century ago, but it is not working today. The response to 'controlling corporate crime' should not be a simple hefty fine, a simple apology, or a pinky promise. The starting point lies in gaining an understanding of the justifying aims of punishment before determining how punishment should be distributed. The thesis moves away from the 'soft on crime' vs. 'tough on crime' debate, towards a 'smart on crime' approach. It goes back to the foundations of corporate criminal law to assess its aim(s) and purpose(s): why should we punish corporations? Why do corporations violate the law? How should corporations be brought to justice when they violate the law? If corporations cannot be imprisoned, how should they be punished? The thesis explores existent theories of punishment and responses to crime (retribution, deterrence, rehabilitation, restoration) to assess whether they are well-suited, or badly-suited, to dealing with corporate crime. It advances proposals and recommendations for improving corporate criminal liability standards, and how punishment of corporations might be reformed. The thesis brings new insights to corporate crime and punishment through the concept of 'restorative justice'.

Negligent misstatement isn't about the creation or recognition of a new right to information per se. Instead, the law of misstatements allows us better to enjoy our existing rights and to make better decisions with respect to them. Currently, the dominant manifestation of liability for negligent misstatements is predicated on an assumption of responsibility by the defendant (whether actual or implied). Those skeptical of the rights-based thesis are, perhaps not surprisingly, similarly skeptical of the assumption of responsibility model. As such, this model has become something of a shibboleth in misstatement theory between rights-based theorists and others. This thesis crosses party lines. While adhering to corrective justice, it denies that an assumption of responsibility by the defendant is the touchstone of liability for negligent misstatements. Indeed, there is nothing particularly distinct about misstatement liability as against normal liability in negligence predicated on proximity and foreseeability of harm. Further, this thesis argues that corrective justice is not only consistent with such a reading of the law, but necessitates it. Recognising a right means paying heed to its congeners. If we are to take rights seriously, then we must eschew reasoning - such as the assumption of responsibility thesis - that at once submerges real, extant rights while at the same time promoting a `right' that is diffuse, ill-defined, and with little basis in law.