Cette thèse a fait l'objet d'une publication: Le nouveau sujet du droit criminel : effets secondaires de la psychiatrie sur la responsabilité pénale / Christian Saint-Germain. — Montréal : Liber, [2014]. — 358 pages ; 23 cm. ISBN 9782895784654. / Cette étude analyse les effets conjugués de la montée du néo-libéralisme et de la consommation de psychotropes sur l’anthropologie pénale. Cette conjoncture modifie les rapports du sujet de droit à lui-même, à autrui et au social. Elle remet en cause la logique de l’imputabilité et la psychologie morale au fondement de la compréhension du sujet pénal. Dans le cadre du procès, les concepts d’intention, de volonté et de libre arbitre ne sont pas neutres. Ils n’ont pas de portée autre que celle permettant la rhétorique incriminatoire. L’intégration de la psychiatrie pour étoffer scientifiquement la scolastique pénale constitue une erreur : l’acceptation devant les tribunaux des prétentions « oraculaires » de cette discipline incertaine de la médecine relève d’une délégation massive du sens commun. En revenant sur le moment décisif de l’intrusion de la psychiatrie dans le discours juridique, cette étude identifie les stratégies par lesquelles se nouent, au fil de l’histoire, des « affinités électives » entre ces deux univers normatifs qui n’ont finalement en partage que l’absence d’une théorie du sujet responsable. Par-delà cette mésalliance, cette étude saisit, à l’occasion de la défense d’automatisme, un des rares ancrages historiques où le droit criminel réfléchit la condition neurologique de l’esprit. Cette étude épouse l’ambiguïté féconde de l’automatisme : à la fois compris comme défense, mais révélant aussi le noyau physique des processus psychiques, renversant ainsi les présupposés moraux qui fondent le discours sur la conscience en droit criminel. Cette étude rappelle le caractère fondamental du concept de désinhibition pour comprendre le néo-sujet. Elle décrit le déploiement d’une pharmaco-politique encore dissimulée sous le concept de santé mentale. Elle se conclut par l’analyse de deux procès criminels pour meurtre devant la Cour d’appel du Québec dans lesquels l’admissibilité de la défense d’automatisme a justement été posée lorsqu’il s’est agi de pondérer le caractère causal des antidépresseurs sur le comportement et l’impact de la dépression. Dans les deux cas, le recours à l’expertise psychiatrique n’a su éclairer le droit. / his study analyzes the combined effects of the rise of neo-liberalism and the use of psychotropic drugs on criminal anthropology. This conjecture alters the relationship of the subject of law to himself, to others and to society as well. It questions the logic of accountability and moral psychology at the foundation of the understanding of the criminal subject. During a trial, the concepts of free will and intention are not neutral. They have no other relevance than supporting a rhetoric allowing incrimination. The integration of psychiatry to expand scientifically criminal scholasticism is a mistake. Acceptance by the courts of the "oracles" of psychiatry is a massive delegation of common sense fraught with uncertainty. With regards to the decisive moment of the intrusion of psychiatry in legal discourse, this study identifies the strategies developped over time involving "elective affinities" between two normative realms wich have in common the absence of a theory of the responsible subject. Beyond this misalliance, this study sheds light on the defense of automatism as one of the few opportunities where criminal law ponders on the neurological conditions of the mind. This study points to the ambiguity of automatism : both as a defense and as the physical core of psychological processes, thus putting into question the assumptions at the basis of moral discourse on consciousness in criminal law. This study emphasizes the fundamental concept of disinhibition in order to understand the neo-subject. It describes the deployment of a pharmaceutical policy hidden in the concept of mental health. It concludes with an analysis of two murder trials before the Quebec Court of Appeal in wich the admissibility of the defense of automatism was questioned – particularily whith regards to the effects of antidepressants on conduct and the impact of depression on behaviour. In both cases, the use of psychiatric expertise was unable to enlighten the court.

This thesis examines the balance between copyright owners and users by studying the nature of the rights and exceptions related to transmission of copyrighted works over the internet, focusing on three different jurisdictions: Australia, Japan and the United States.The choice of Japan and the United States is based on consideration of the following elements: 1. Both countries possess advanced information technology; 2. Both countries too the lead in legislating for copyright protection in the digital environment; 3. Both countries have different legal systems. In the matter of statutory reaction of transmission of works over the internet, there is no uniform solution around the world as the divergent laws in the three chosen countries demonstrate.

This thesis examines the Russian Constitution 1993 and the legislation flowing from it against the background of the former (Soviet) constitutions and international human rights instruments at the beginning of Russia’s path towards democratization.Research for the thesis was conducted over a period of four years (1998 - 2002) during particular political and economic instability in the country following the financial crisis of 17 August 1998.A review was conducted of Russian laws that aim to protect, what are arguably the most fundamental rights of any democratic constitutional system - civil rights. Unlike political rights (which relate to the system of government), civil rights are the rights to liberty and equality granted to citizens of a country.The civil rights enumerated in this thesis are known as ‘natural’ rights, and include the right to life; right to personal inviolability, right to privacy; right to dignity and good reputation; the freedom of information, movement, religion, language and nationality. These rights, are also referred to as ‘personal civil rights’, which is the term used in this thesis.The thesis presents a critical analysis of personal civil rights proclaimed in the Russian Constitution, demonstrating that although their articulation accords with international standards, there are obvious problems associated with economic and political factors that limit their enjoyment by Russian people.Most of the research for this thesis was conducted in Russia, providing a specific insight into the political, social and economic peculiarities (such as enduring totalitarian idiosyncrasies, and a prevailing context of corruption) the full extent of which is difficult to perceive from outside the country. Since, these peculiarities have a direct influence on the administration of justice in Russia, the thesis refers to local literature sources that contain an intimate knowledge of the effect of these factors on Russia’s current legal system.Chapter 1 of the thesis discusses the history and modern understanding of personal rights, as well as relevant parts of the current Russian Constitution, including how these differ from the previous constitutions. Subsequent chapters (2-9) discuss selected personal civil rights, which are particularly important in the context of Russian social, political, economic and legislative development; namely the rights to life and personal inviolability, privacy, dignity; and the freedom of information, movement, language nationality and religion,. These rights are at the core of any democratic constitutional system as they are essential in securing fundamental human freedoms.The Conclusion then summarizes the extent to which the personal civil rights proclaimed by the Russian Constitution are enjoyed by Russian people in light of Russia’s present political and economic reality. For most of the rights discussed, specific problems are identified and suggestions made as to what measures may be taken in order to overcome them.

Be it the Algerian National Liberation Front, the African National Congress in South Africa or the continued struggle of the Palestinian people, the principle of self-determination is largely central to all projects of national liberation. This paper addresses what is arguably a deficient conception of self-determination by highlighting two factors that contributed to this deficiency. The first is the re-enforcement of dependency in self-determination projects by international institutions, primarily through the Mandate System. The second is a merit-based system of conditionality for the granting of independence, accompanied by a tendency to deformalize the law, relegating self-determination to an empty principle, the substance of which is decided by the negotiations’ context. The case of Palestine is used to demonstrate how those factors are adopted as central means in resolving the Palestinian self-determination problem, which in-turn leads to a deficient conception that does not account for the core content of the right.

In the wake of atrocities arising from internal armed conflicts in the 1990s, the International Commission on Intervention and State Sovereignty introduced the Responsibility to Protect doctrine (“R2P”) as a solution to reconcile the notion of state sovereignty with the need to protect citizens. The lack of available protection for internal armed conflicts and the subsequent evolution of the humanitarian intervention debate facilitated the unanimous acceptance of R2P’s fundamental principles by all UN member states. This paper examines the development of the R2P doctrine and its current status as customary law. By identifying its inadequacies, the paper raises questions of the doctrine’s viability in fulfilling the emerging norm of the collective responsibility to protect. In order to remedy these shortfalls and ensure the doctrine’s effectiveness, the paper argues the need to incorporate post-conflict investigatory mechanisms into the R2P.

In addition to demonstrating the judiciary’s role in constitutional adjudication and an application of the federal trade and commerce power, judicial determination of Parliament’s constitutional jurisdiction to enact securities legislation is noteworthy also due to the vast policy debates that are involved. Though such determinations routinely invite a process removed from the contemplation of desirable policy, the ‘General Motors test’ used to define and apply the relevant constitutional power here seems to implicitly allow it. The choice between ‘categorization’ and ‘balancing’ in constitutional analysis is therefore significant, in terms of its juxtaposed tolerance for policy considerations. With these analytical options in mind, this thesis considers Parliament’s proposal, so to identify a reasonable process for determining its constitutionality. It argues that balancing relevant policy concerns is necessary and justifiable in the application of the legal norms in question. Crucial, however, is lending the process structure, so that its shortcomings are mitigated.

The New Zealand Food Bill is being passed amidst stern criticism of its content and the influence on it by multi-national corporations and the Codex Alimentarius Commission, whose food-safety standards motivated the bill. These concerns illustrate the large democratic and legitimisation deficits in global governance. One response to these criticisms and concerns is global administrative law, which focuses on promoting administrative law tools to enhance accountability. However, an examination of the Food Bill reinforces two main critiques of global administrative law: that it excludes addressing substance of international law and brackets democracy. I argue the limited GAL approach cannot be justified and the significant gaps in its approach require that it engage with democracy. I analyse the possibilities of global administrative law to engage with (to acknowledge and adopt) three theories of global democracy - deliberative, cosmopolitan, and radical pluralism. I argue deliberative democracy offers the most accessible option.

Be it the Algerian National Liberation Front, the African National Congress in South Africa or the continued struggle of the Palestinian people, the principle of self-determination is largely central to all projects of national liberation. This paper addresses what is arguably a deficient conception of self-determination by highlighting two factors that contributed to this deficiency. The first is the re-enforcement of dependency in self-determination projects by international institutions, primarily through the Mandate System. The second is a merit-based system of conditionality for the granting of independence, accompanied by a tendency to deformalize the law, relegating self-determination to an empty principle, the substance of which is decided by the negotiations’ context. The case of Palestine is used to demonstrate how those factors are adopted as central means in resolving the Palestinian self-determination problem, which in-turn leads to a deficient conception that does not account for the core content of the right.

In the wake of atrocities arising from internal armed conflicts in the 1990s, the International Commission on Intervention and State Sovereignty introduced the Responsibility to Protect doctrine (“R2P”) as a solution to reconcile the notion of state sovereignty with the need to protect citizens. The lack of available protection for internal armed conflicts and the subsequent evolution of the humanitarian intervention debate facilitated the unanimous acceptance of R2P’s fundamental principles by all UN member states. This paper examines the development of the R2P doctrine and its current status as customary law. By identifying its inadequacies, the paper raises questions of the doctrine’s viability in fulfilling the emerging norm of the collective responsibility to protect. In order to remedy these shortfalls and ensure the doctrine’s effectiveness, the paper argues the need to incorporate post-conflict investigatory mechanisms into the R2P.

In addition to demonstrating the judiciary’s role in constitutional adjudication and an application of the federal trade and commerce power, judicial determination of Parliament’s constitutional jurisdiction to enact securities legislation is noteworthy also due to the vast policy debates that are involved. Though such determinations routinely invite a process removed from the contemplation of desirable policy, the ‘General Motors test’ used to define and apply the relevant constitutional power here seems to implicitly allow it. The choice between ‘categorization’ and ‘balancing’ in constitutional analysis is therefore significant, in terms of its juxtaposed tolerance for policy considerations. With these analytical options in mind, this thesis considers Parliament’s proposal, so to identify a reasonable process for determining its constitutionality. It argues that balancing relevant policy concerns is necessary and justifiable in the application of the legal norms in question. Crucial, however, is lending the process structure, so that its shortcomings are mitigated.