Thesis (doctoral)--Universität Bern.

Inaug.-Diss.--Bonn. / Vita. Bibliography: p. i-xxx.

Thesis--Zurich. / Includes bibliographical references and index.

Heidelberg, Jur. Diss. v. 2. Mai 1912, Ref. v. Lilienthal. / Auch als: Strafrechtl. Abhandlungen. H. 148.

This thesis explores the relationship between law, sovereignty and violence in colonial India in the period 1857-1914. From murder, to corporal punishment, to jubilee amnesty, this thesis highlights two gaps within the scholarship of nineteenth-century Indian legal and political history. Firstly, that histories of colonial law have been reluctant to provide a political analysis of the relationship between crime, sovereignty and identity in the everyday. Secondly, the much-noted shift in political discourse from East India Company to British Crown rule in histories of imperial political philosophy has left unexplained the relationship between liberalism, the codification of criminal law, and the production of colonial legal-political subjectivity. This lacuna in scholarship has resulted in the construction of a limited theoretical framework for understanding the underlying politics at play in the histories of crime, law, and punishment. Ultimately this work provides such framework, allowing the writing of law and the act of crime to be brought into histories of political philosophy and colonial sovereignty. As a revisionist history of colonial politics and law the thesis therefore breaks new ground in respect to our broader understandings of colonial sovereignty and politics, the practice of colonial law, and the constitution of the colonial state in India.

To date, the arrest warrants issued by the ICC against the Sudanese President, as a suspect of heinous international crimes committed in Darfur, have not been enforced. This thesis questions and analyzes the reasons behind this failure. The thesis also considers the question whether the official status of Omar Al Bashir, as the incumbent head of state, shields him from prosecution before the ICC. To answer this question, the thesis examines the various international law theories related to the heads of state immunity and explains their relevance and applicability to the case of Al Bashir. Finally, the thesis evaluates the likelihood of the arrest of the Sudanese President and explores the legal foundation of each possible action. The thesis concludes that the Genocide Convention remains the most instrumental and effective authority for the apprehension of Al Bashir, and it further illustrates its binding effect beyond the ICC states parties.

The continued criminalisation of adult commercial sex work in South Africa seems to have contributed to the unjust violation of sex workers’ constitutional rights such as the rights to equality, human dignity, privacy and the right to bodily integrity. It is evident that laws enforcing sexual morality often increase the stigmatisation and marginalisation of minority groups. In Teddy Bear Clinic for Abused Children and Others v Minister of Justice and Others, both High Court and Constitutional Court held that the criminalisation of consensual sexual intercourse and consensual sexual violation between two minors of ages twelve to fifteen is inconsistent with the Constitution. In Teddy Bear both courts relied on the argument that the criminalisation constituted a violation of the children’s rights to dignity, privacy and self-autonomy. The courts’ reasoning is logical. However, it takes one back to the issue of adult commercial sex which still remains criminalised in South Africa. If both courts in Teddy Bear could order for the decriminalisation of consensual sex between minors of certain age groups, then the continued criminalisation of adult commercial sex work should also be called into question. This dissertation argues that the regulation of sexual morality often unjustly infringes the constitutional rights of those targeted. It has also been identified that criminal and human- rights law are frequently applied in an unfair and biased manner by South African courts. Examples are cited in the dissertation of court cases where courts applied a flexible approach towards the development of common law, whilst in other cases the courts seemed to hide behind the separation of powers doctrine instead of tackling the issues of human- rights violations. The first chapter of the dissertation contains the problem statement, research questions, motivation, literature review and a brief outline of the chapters. The second chapter explores the question of the morality which is endorsed by the South African Constitution. The third chapter identifies the biased and unfair application of criminal and human- rights law by South African courts. The fourth chapter contains an argument on the courts’ duty to interpret legislation and to develop common law in a manner that promotes the spirit, objects and purport of the Bill of Rights. Chapter five contains a brief international perspective on adult commercial sex work, by looking at the New Zealand position and other relevant international law instruments. Chapter six contains the conclusion of the dissertation. It is proposed that when dealing with the issue of adult commercial sex work, the legislature should be careful not to enact laws which disregard the sex workers’ human- rights. Here one can cite New Zealand as a country that has taken a human- rights approach when tackling the issue of adult commercial sex work. A human -rights approach aims to empower people in the sex work industry to make informed choices regarding their health and other choices relating to their overall safety. This approach represents a shift from a moralistic approach to sex work to an approach that recognises the rights of sex workers. The case of S v Jordan provided a platform that the judiciary should have used to eliminate human -rights violations brought by the criminalisation of adult commercial sex work. Failure of the Constitutional Court in Jordan to approach the matter from a human-rights perspective has come as a huge disappointment to the attempts to reform one of the oppressive and moralistic laws which continue to exist even during the post Constitutional era. / Dissertation (LLM)--University of Pretoria, 2013. / Public Law / unrestricted

Thesis (doctoral)--Friedrich-Alexander-Universität Erlangen-Nürnberg.

Le constat est aujourd’hui unanime. Le principe de légalité criminelle est affaibli par les évolutions du droit. En effet, la loi pénale n’est plus l’unique source du droit pénal, sa qualité est en déclin et le juge joue désormais un rôle incontestable en droit pénal. Ces évolutions sont ancrées dans le droit pénal, dont elles sont des paramètres. Il est impossible de revenir en arrière afin de retrouver un droit pénal conforme au principe de légalité criminelle, tel que proclamé par les révolutionnaires de 1789. Il convient alors de le faire évoluer. Ainsi, ces paramètres ont en commun d’être à l’origine de la norme pénale. Contrairement à la loi pénale, la norme pénale intègre toutes les évolutions du droit pénal. Cette norme pénale est au cœur du droit pénal dont elle en est la source. Le principe de légalité criminelle n’est donc plus configuré autour de la loi pénale, mais autour de la norme pénale. Par conséquent, il convient de parler de principe de normativité criminelle. Cette reconfiguration est ainsi la solution face à un principe de légalité criminelle et une loi pénale en déclin. Elle permet de garantir la protection des droits et liberté individuelle tout en tenant compte des évolutions du droit. Il convient dès lors d’affirmer « qu’il n’y a pas d’infraction sans norme pénale ». / The consensus today is unanimous. The principle of criminal legality has been weakened by developments in law. Statute law is no longer the sole source of criminal law ; its influence is declining and judges will play an indisputable role in criminal law. These developments are rooted in criminal law, of which they are parameters. It is impossible to find a criminal law in history that conforms to the principle of criminal legality such as that proclaimed by the revolutionaries of 1789. It is therefore appropriate that it should evolve. Therefore, these parameters are together the origin of the criminal standard. Contrary to statute law, this standard integrates all developments in common law. This standard is at the core of the common law for which it is the source. The principle of criminal legality is therefore no longer configured with reference to statute law but the criminal standard. As a consequence, we should speak of the principle of the standardisation of criminal law. This reconfiguration is therefore the solution to a principle of criminal legality and a statute law in decline. It allows for the guaranteed protection of individual rights and liberties taking into account developments of law. From now on, it shoudl be affirmed « that there is no crime without the criminal standard ».

This research was focused on analyzing and interpreting the U.S. Supreme Court’s holdings in several cases that directly affect the juvenile justice system and the sentencing process of youth offenders. Drawing primarily from Miller v. Alabama (2012) and the Supreme Court’s ‘Miller doctrine’, this thesis goes against the viewpoints of many policymakers, arguing that life without parole and mandatory adult sentence minimums for youth offenders are ‘cruel and unusual’ punishments that are unconstitutional as sentencing options for a juvenile offender. In order to arrive at the conclusion that the aforementioned punishments violate a youth’s 8th Amendment right to a proportional sentence, this thesis drew from previously unavailable research in modern neuroscience that substantiates the Supreme Court’s claim that “Children are different” on a developmental basis and thus, can never possess the same degree of culpability for a crime as an adult offender. If one accepts the conclusions made in this thesis, it is a matter only of when, not if, the sentencing process for youth offenders experiences a paradigm shift on a legislative level, and becomes a much more efficient and successful process where rehabilitation becomes the foremost goal. If science and developmental psychology support the Supreme Court’s assertion that nearly all juvenile crime-activity is the result of “transient immaturity,” then why are 16 year olds being sentenced to life without the possibility of parole? This thesis explores the possible answers to this question, and anticipates the possible impediments to national changes in juvenile sentencing procedures.