In this dissertation I argue for the need to develop a Metis Critical Legal Theory, or “MetCrit”, a theory that is particular to the cultures, issues and concerns of Metis people. Suggestions towards the development of MetCrit are proposed in light of the difficulties of Metis rights claimants in British Columbia following creation of the “historic community connection” test in R v Powley, the leading case on the constitutional protection of Metis rights in Canada. Misconceptions about BC Metis history and about Metis communities generally have resulted in legal decisions that hold there are no historic Metis communities in BC, and thus no communities capable of meeting the Powley test. The BC situation reveals that Powley, as it is currently interpreted, cannot adequately deal with the realities of Metis history or with Metis conceptions of community, and that the community connection test itself is flawed. MetCrit is proposed as a possible lens through which to examine BC Metis rights cases in light of the historiography of the Metis of BC, and through which to critique the Powley court’s attempt to concretize Metis community identities. I suggest that MetCrit could provide spectrums of space for avoiding some of the dualities that are reflected in Canadian legal and historical accounts of Metis people and communities. / Graduate / 2020-04-19

A more conservative supreme court will likely have the chance to overrule Roe v. Wade. Many states have passed heartbeat laws that will probably be taken all the way to the supreme court, these cases will ask the supreme court to affirm fetal personhood, giving fetuses a constitutionally recognized right to due process and making abortion illegal. In this thesis, I will defend an expansion of protections for pregnant peoples through a socialized right to abortion.

An embedded case study investigating the ongoing securitization of migration in the EU from 2014-2020 and the role of legal institutions, in this case the European Court of Human Rights (ECtHR) in these processes. Securitization Theory is used in combination with Critical Legal Theory to create a framework that attempts to both illuminate the role of the functional actor in Securitization Theory further, and the impact securitization has on legal institutions. It provides explanations for sudden shifts in legal argumentation, especially in cases of high political relevance with the use of Critical Legal Theory. The case of N.D. & N.T. vs. Spain serves as an example of a functional actor providing two contrasting judgments on the same events within a short period of time and opens up discussions about political influences on legal institutions. Securitization and the framing of refugees as existential threats to European identity and culture is one of the many ongoing political processes related to the issue of migration and refuge in Europe. As the political landscape shifts and right-wing populist parties establish themselves in European Member States, illegal pushbacks have become common practice at the outer borders of the EU and are challenged both politically and legally. This study investigated cases of illegal pushbacks to renew criticism against the institutions engaging in and enabling the practice.

Submitted by JOSIANE SANTOS DE OLIVEIRA (josianeso) on 2018-05-09T11:39:22Z No. of bitstreams: 1 Simone Schuck da Silva_.pdf: 2512697 bytes, checksum: 4218730136d9da1b3e534b8cd4c70cea (MD5) / Made available in DSpace on 2018-05-09T11:39:22Z (GMT). No. of bitstreams: 1 Simone Schuck da Silva_.pdf: 2512697 bytes, checksum: 4218730136d9da1b3e534b8cd4c70cea (MD5) Previous issue date: 2018-02-28 / CAPES - Coordenação de Aperfeiçoamento de Pessoal de Nível Superior / PROEX - Programa de Excelência Acadêmica / O trabalho analisa as demandas de retificação de nome e sexo no registro civil de travestis e transexuais e a sua expressão pela gramática jurídica a partir de uma pesquisa empírica quantitativa e qualitativa nos processos judiciais do projeto “Direito à Identidade: Viva seu nome!”, do G8-Generalizando, grupo de direitos sexuais e de gênero do Serviço de Assessoria Jurídica Universitária da Universidade Federal do Rio Grande do Sul (SAJU/UFRGS). Foram utilizados o método de procedimento de estudo de caso e as técnicas de pesquisa documental, em relação aos processos do grupo, e de pesquisa de campo, com a aplicação de entrevistas semiestruturadas aos agentes envolvidos nas ações. Com base na Teoria Crítica do Direito, observou-se a configuração de uma disputa dogmática sobre a forma regulatória do nome e do sexo civis e, por sua avaliação crítica, concluiu-se pela possibilidade de elaboração de outro modelo de regulação desses institutos jurídicos, uma regulação social e autônoma, capaz de oferecer maior legitimidade à operação do direito e maior autonomia para travestis e transexuais sobre suas identidades. / This thesis analyzes name and sex demands of rectification in the civil registry of travestis and transgenders and its expression on legal grammar, by means of a quantitative and qualitative empirical research of legal cases raised by Direito à identidade: Viva seu nome!, a project from G8-Generalizando – sexual and gender rights group of the Federal University of Rio Grande do Sul (UFRGS) clinic legal program. It uses case study procedure method and techniques of documentary research, in relation to the group processes, and field research, with the application of semi-structured interviews with agents involved in the lawsuits. Based on the Critical Legal Theory, it is observed the configuration of a dogmatic dispute on the regulatory form of civil name and sex. By its critical evaluation, it was concluded that is possible to design another regulatory framwork of these legal institutes, a social and autonomous regulation capable of offering greater legitimacy to the operation of law and also greater autonomy for travestis and transgenders on their own identities.

Cette thèse porte sur la pensée juridique des comparatistes euro-américains. Elle analyse les travaux d’un nombre important de comparatistes, qui ont eu une place significative au sein de la discipline en Europe et aux Etats-Unis entre les années 1860 et le début des années 2000. En examinant les représentations du monde non-occidental, elle met en avant les tensions entre l’inclusion et l’exclusion des spécificités non-occidentales, tout en insistant sur la nécessité de développer une pratique critique de résistance. En s’inspirant des théories postcoloniales, ce travail aborde les questions suivantes: comment le savoir sur les sociétés non-occidentales est-il construit dans la pensée juridique des comparatistes euro-américains ? Quelles sont les préconceptions qui facilitent la production de ce savoir ? Quel est le fondement théorique qui anime ces constructions et quelles sont leurs implications politiques ? Dans quelle mesure la pensée juridique comparative alimente-t-elle les attitudes de domination ou bien les remet-elle en question ? De quelle manière les réponses à ces questions sont-elles reproduites ou modifiées d’une époque à l’autre, d’un auteur à l’autre ? / This dissertation focuses on Euro-American comparative legal thought. It analyses the works of an important number of comparatists operating in Europe and in the United States, roughly from the 1860s to the early 2000s. Examining their representations of non-Western societies, it puts emphasis on the tensions between inclusion and exclusion of particularism and it argues in favor of a critical praxis of particularism. Inspired from postcolonial theories, it addresses the following questions: how are non-Western societies constructed in Euro-American comparative legal thought? What are the preconceptions that make the production of such knowledge possible? What is the theoretical framework that animates these constructions and what are their political implications? What elements internal to comparative legal knowledge fuel attitudes of domination or/and challenge them? How do they change and how are they reproduced from one epoch to another, from one author to another?

A body of critical legal scholarship argues that, by the time they have completed their studies, students who enter legal education holding social ideals and intending to use their legal education to achieve social change, have become cynical about the ability of the law to do so and no longer possess such ideals. This is explained by critical scholars to be the result of a process of ideological indoctrination, aimed at ensuring that graduates uphold the narrow and conservative interests of the legal profession and capitalist society, being exercised by law schools acting as adjuncts of the legal profession, and exercised upon the passive body of the law student. By using Foucault’s work on knowledge, power, and the subject to interrogate the assumptions upon which this narrative is based, this thesis intends to suggest a way of thinking differently to the approach taken by many critical legal scholars. It then uses an analytics of government (based on Foucault’s notion of ‘governmentality’) to consider the construction of the legal identity differently. It examines the ways in which the governance of the legal identity is rationalised, programmed, and implemented, in three Queensland law schools. It also looks at the way that five prescriptive texts to ‘surviving’ law school suggest students establish and practise a relation to themselves in order to construct their own legal identities. Overall, this analysis shows that governance is not simply conducted in the profession’s interests, but occurs due to a complex arrangement of different practices, which can lead to the construction of skilled legal professional identities as well as ethical lawyer-citizens that hold an interest in justice. The implications of such an analytics provide the basis for original ways of understanding legal education, and legal education scholarship.

[pt] Esta tese tem como objetivo recuperar o processo de formação do pensamento moderno a partir de um ponto de vista mais abrangente sobre esse fenômeno histórico. Lançando mão de análises provenientes da filosofia política que recuperam sentidos legítimos para a emergência conceitual da modernidade, e da produção historiográfica recente sobre o iluminismo radical, propõe-se uma investigação de tal fenômeno de modo mais complexo a fim de identificar as principais disputas teóricas em jogo, bem como os divergentes programas sociais e políticos afirmados no período, notadamente aqueles que guardam relação com as noções sobre igualdade, liberdade e direitos. Com isso, pretende-se oferecer um exame aprofundado dessa época, sob sua dimensão conflitiva e em sua temporalidade múltipla, com a finalidade de explorar e afirmar teoricamente conceitos e práticas radicais legadas pelas modernidade para atualizar o sentido dos direitos hoje. / [en] The aim of this dissertation is to reconsider certain aspects of the development of modern thought by bringing a more wide-ranging perspective to that historical phenomenon. Drawing on a set of analyses from political philosophy that recognize the legitimacy of the conceptual emergence of modernity, as well as from recent historiographic work on the radical enlightenment, it seeks to examine the development of modern thought in a more complex fashion in order to identify the principal theoretical disputes and divergent social and political programs claimed during the period in question, most notably those related to notions of equality, liberty and rights. The objective of the dissertation is thus to offer a deeper consideration of the period, of its conflictive dimension and its multiple temporalities, with the ultimate purpose of theoretically exploring and asserting a set of radical definitions and practices inherited from modernity that remain relevant for conceiving of rights.

In August 2000, Justice O�Loughlin of the Federal Court of Australia handed down the decision in Cubillo v Commonwealth in which Lorna Cubillo and Peter Gunner took action against the Commonwealth Government, arguing that it was vicariously liable for their removal from their families and communities as children and subsequent detentions in the Northern Territory during the 1940s and 1950s. The case is the landmark decision in relation to legal action taken by members of the Stolen Generations. Using the decision in Cubillo as a key site of contestation, my thesis provides a critique of legal positivism as the dominant jurisprudential discourse operating within the Anglo-Australian legal system. I argue that the function of legal positivism as the principal paradigm and source of authority for the decision serves to ensure that the debate concerning reconciliation in Australia operates rhetorically to maintain whiteness at the centre of political and discursive power. Specifically concerned with the performative function of legal discourse, the thesis is an interrogation of the interface of law and language, of rhetoric, and the semiotics of legal discourse. The dominant theory of evidence law is a rationalist and empiricist epistemology in which oral testimony and documentary evidence are regarded as mediating the relationship between proof and truth. I argue that by attributing primacy to principles of rationality, objectivity and narrative coherence, and by privileging that which is visually represented, the decision serves an ideological purpose which diminishes the significance of race in the construction of knowledge. Legal positivism identifies the knowing subject and the object of knowledge as discrete entities. However, I argue that in Cubillo, Justice O�Loughlin inscribes himself into the text of the judgment and in doing so, reveals the way in which textual and corporeal specificities undermine the pretence of objective judgment and therefore the source of judicial authority.

In August 2000, Justice O�Loughlin of the Federal Court of Australia handed down the decision in Cubillo v Commonwealth in which Lorna Cubillo and Peter Gunner took action against the Commonwealth Government, arguing that it was vicariously liable for their removal from their families and communities as children and subsequent detentions in the Northern Territory during the 1940s and 1950s. The case is the landmark decision in relation to legal action taken by members of the Stolen Generations. Using the decision in Cubillo as a key site of contestation, my thesis provides a critique of legal positivism as the dominant jurisprudential discourse operating within the Anglo-Australian legal system. I argue that the function of legal positivism as the principal paradigm and source of authority for the decision serves to ensure that the debate concerning reconciliation in Australia operates rhetorically to maintain whiteness at the centre of political and discursive power. Specifically concerned with the performative function of legal discourse, the thesis is an interrogation of the interface of law and language, of rhetoric, and the semiotics of legal discourse. The dominant theory of evidence law is a rationalist and empiricist epistemology in which oral testimony and documentary evidence are regarded as mediating the relationship between proof and truth. I argue that by attributing primacy to principles of rationality, objectivity and narrative coherence, and by privileging that which is visually represented, the decision serves an ideological purpose which diminishes the significance of race in the construction of knowledge. Legal positivism identifies the knowing subject and the object of knowledge as discrete entities. However, I argue that in Cubillo, Justice O�Loughlin inscribes himself into the text of the judgment and in doing so, reveals the way in which textual and corporeal specificities undermine the pretence of objective judgment and therefore the source of judicial authority.

With discussion of Indigenous laws on the rise in Canada, this thesis explores the question of law’s power: jurisdiction. In this project, I ask whether Indigenous jurisdiction is active in conflicts between Indigenous and state actors over the environment, in the context of the Heiltsuk Nation on the central coast of British Columbia. This project looks to critical legal theory for an understanding of jurisdiction. It identifies three aspects of jurisdiction that are discussed in critical legal theory and related fields: that it is technical, it is authoritative, and it is spatial. Adopting these qualities as provisional indicators of jurisdiction, it applies thefzm to three case studies of Heiltsuk (or “Haíɫzaqv”) conflicts with the state, which engage colonial law in different ways. The three case studies concern (1) herring harvest and management, which was litigated in R v Gladstone; (2) land use and forestry, which is the subject of the Great Bear Rainforest agreements; and (3) trophy hunting for bears, which is the subject of a grassroots campaign based on Indigenous law. Adopting a qualitative approach adapted from institutional ethnography, this project applies a critical jurisdictional lens to each case study, using documentary review and interviews to explore the technical, authoritative, and spatial aspects of each conflict. Ultimately, I find that expressions of Heiltsuk jurisdiction – as understood from a colonial, critical perspective – are already at play in each conflict, although this is not immediately visible from the point of view of colonial law. In the conclusion, I explore the different manifestations and strategies of Heiltsuk jurisdictional expressions, and the ways that colonial jurisdiction interacts with them. / Graduate / 2021-12-19