This work asserts that bureaucratic organization is not only an inevitable part of the modern administrative state, but that a high quality bureaucracy within a strongly empowered executive branch is an ideal mechanism for running government in the modern era. Beginning with a philosophical inquiry into the purpose of American government as we understand it today, this paper responds to criticisms of the role of expanded government and develops a framework for evaluating the quality of differing government structures. Following an evaluation of the current debate surrounding bureaucracies (from both proponents and critics), this thesis outlines the lessons and principles for structuring and managing an efficient bureaucracy. Finally, this paper concludes with two case studies – Puerto Rican bureaucratic failures and Japanese/Chinese national development – to consider the effects of compliance and non-compliance to the lessons outlined in this work. The inquiry finds that principles such as specialization, political autonomy, effective information systems, higher accountability standards, and managerial emphasis on policy implementation are all critical to superior bureaucratic governance.

Historically, labour dispute resolution in South Africa has been synonymous with being expensive, unnecessarily lengthy and ineffective. The Labour Relations Act (LRA) 66 of 1995 set out to change this through the creation of the Commission for Conciliation, Mediation and Arbitration (CCMA). The design of the CCMA is centred on a dispute resolution institution that adopts a quick, cheap and non-legalistic approach to dispute resolution. Through the introduction of compulsory arbitration for specified dismissal and unfair labour practice disputes, the LRA granted the CCMA the mandate of upholding the objectives of industrial peace and reducing exorbitant legal costs. The outcome of arbitration proceedings conducted under the auspices of the CCMA are final and binding. Accordingly, this sui generis type of proceedings aimed at being cheap and informal has several implications. The adherence to traditional legal principles, in particular the rules relating to the presentation and admissibility of evidence cannot be adhered to rigorously in a forum where parties are unrepresented and that has informality as a defining feature. This paper set out to examine the proposition that based on various statutory powers; arbitrations are to be conducted informally and free from legalism- which necessarily entails a relaxation if not elimination of the traditional exclusionary rules pertaining to the presentation and admission of evidence. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2013.

The under-representation of women in the senior appellate judiciary in common law jurisdictions remains an enduring problem. Much has been written about the lack of women’s participation in the judiciary and what strategies, if any, should be undertaken in order to resolve this persistent problem. However, this thesis takes a step back to ask a broader question: what impact does gender diversity have upon judicial decision making in appellate courts? It seeks to answer this question by engaging feminist standpoint theory to assess the experiences of men and women judges from three common law jurisdictions: England, South Africa and Australia. Through a series of interviews conducted with members of the senior judiciary in these jurisdictions in 2012 and 2013, this thesis explores the extent that interviewees consider that gendered experiences impact upon their own judging, and judging within the dynamics of collegiate appellate courts. This thesis concludes that while it is not possible to pinpoint one particular ‘contribution’ or ‘impact’ that gendered experiences have upon judging, it is nonetheless generally considered by those interviewed to be an important part of the judicial decision making process in several subtle, yet important, ways. Because of the considerable role that diverse gendered experiences play in judicial decision making, appointments processes should be sensitised to the need for diversity of experience and alive to the danger of ostensibly neutral appointment criteria devaluing diverse experiences, particularly the experiences of women in the law.

This thesis is primarily concerned with the distribution of quotas in higher education and public employment within identified beneficiary groups. In a system of quotas based on preferential treatment of groups, the question about which members of the group must benefit over others is a crucial one. One of the main themes in the thesis is to critically analyse the judicial understanding about the nature of these groups. The homogeneity (in backwardness) that is attached to beneficiary groups in differing degrees is challenged in the thesis using the examples of Scheduled Castes and Muslims within the Other Backward Classes category. The differences within beneficiary groups have great significance for the fairness of India’s reservation policies. By ignoring internal differences, the most marginalised groups are left behind in terms of accessing the benefits of reservations. I have argued that any attempt to address the issue of sub-classification must begin by recognising multiple axis of marginalisation within the framework of intersectionality. This lack of sufficient engagement with the issue of sub-classification highlights the failure of the Supreme Court of India to develop a normative framework within which reservations might be viewed. This lack of normative clarity informs spheres of reservations like higher education and public employment along with according homogenous treatment to beneficiary groups internally. The Supreme Court has viewed reservations in higher education and public employment as essentially performing the same function. I have argued that reservations in these spheres perform different functions and the resulting obligations on the state in terms of constitutional justifications must also differ. While the demands for sub-classification present an opportunity to make distribution of reservations fairer, it also exposes the limitation of reservations as a tool of social transformation.

This thesis assesses the UK Terrorism Act 2000’s stop and search and pre-charge detention powers against liberty and security rights. It proposes that criminalizing ‘terrorism’, and legitimacy of counter-terrorism laws, depends on moral and legal norms defining legitimate sovereign power. External norms of territorial sovereignty and non-intervention define and legitimize external defensive actions by the state to protect nation state security. Individual liberty and security rights, specifically pursuant to article 9, ICCPR and article 5 ECHR, have a special moral and legal status externally, but are not universally determinative of sovereign legitimacy. The thesis argues that these external norms accommodate contrasting paradigms of internal legitimacy, the ‘security state’ and the ‘liberal state’. Conceptually, sovereign legitimacy in the former is grounded on heteronymous collective or ideological values, grounding fundamental obligations legitimizing ‘balancing’ of individual liberty and security against security of those ultimate norms. The ‘balancing metaphor’ and exceptionalist theories are conceptually located within the security state paradigm. Conversely, political and individual autonomy (liberty and security of the person) circumscribe legitimacy of liberal state action, grounding fundamental obligations to prevent and punish harms, and to refrain from violating individual autonomy unless justified by those obligations. Liberal rule of law standards, including due process rights, are legitimized by the instrumental role of law as the primary source of justification in the liberal state. Evaluating the policy justifications, enactment, and scope of the TA provisions against those norms, the thesis concludes they contradict liberal norms, violate international norms and individual legal rights to liberty and security, and undermine the rule of law and due process rights. The pre-emptive counter-terrorism policy, balancing national security against individual liberty, and degradation of due process rights, belies a security state approach.

This thesis investigates competition law, State aid law and free-movement law in their interaction with Article 11 TFEU’s obligation to integrate environmental protection requirements into all activities and policies of the Union. The Article is formulated in broad and sweeping terms which makes integrating environmental protection requirements complex and context-dependent. The challenge of integrating environmental considerations is further increased as such integration in competition, State aid and free- movement law is different from other areas of EU action. The three areas are the core provisions protecting the internal market by prohibiting certain actions of the Member States and undertakings. Unlike in other areas, the EU is therefore not in the position to develop or design the actions but has to scrutinise the measure according to pre-established parameters. To address this challenge, a novel functional approach to environmental integration is developed. The approach should facilitate a better understanding of environmental integration and in particular its application to competition law, State aid and free-movement law. An important element of this thesis equally the comparison between the three areas of law. It sheds light on conceptual issues that are not only relevant to the integration of environmental protection. The comparison advances the understanding in relation to questions such as how restrictions are defined and how the respective balancing tests are applied. The contribution of this research is therefore twofold. One the one hand, it compares how the different tests in competition, State aid and free-movement law operate, thereby offering opportunities for cross-fertilisation. On the other hand, this comparison and the improvements suggested as a result help to conceptualise environmental integration thereby paving the way for a more transparent and consistent integration of environmental protection in competition, State aid and free-movement law.

This thesis challenges some of the current limits to the grounds for judicial review of legislation accepted by most Canadian jurists. More specifically, it makes a common law-based argument in favour of the priority over legislation of principles which are implied from the Imperial Constitution Acts 1867-1982 and which originally derive from the English constitution – namely implied constitutional principles. The argument faces two main interrelated legal objections: Parliamentary sovereignty and the Framers’ intentions. The first objection is rebutted by arguing that Parliamentary sovereignty possesses an ability to change in a way that can incorporate substantive legal limitations. The most prevalent common law-based theories of change to Parliamentary sovereignty suggest that the courts can authoritatively determine if implied constitutional principles can check legislation. The second objection is rebutted by reference to the notion of progressive interpretation as conceived under Hartian and Dworkinian theories of law and adjudication. Under these theories, progressive interpretation is an aspect of the courts’ best overall interpretation of the constitution, which includes implied constitutional principles. Such progressive interpretation can result in these principles constraining legislative authority. Justification of the progressive interpretation of implied constitutional principles can be based on the rule of law from which derive a number of these principles. One plausible conception of the Canadian rule of law is that it rejects the view that implied constitutional principles can prevail when in conflict with legislation. However, the better conception is that, as an attempt to adapt implied constitutional principles to relevant changes in society and to protect their underlying values, the judiciary should interpret these principles as capable of checking legislation to the extent that they form part of the core content of the rule of law. Such a conception and an operation of implied constitutional principles can properly be explained by Hartian or Dworkinian common law-based progressive interpretation of these principles and by their relationship with legislative authority.

This thesis explores the constitutionality of compulsory electoral quotas for women imposed by law. The central question this thesis attempts to answer is what makes these quotas constitutional or unconstitutional in a given jurisdiction. A double methodology was employed to answer this question: theoretical and comparative. From a theoretical perspective, it is proposed that the constitutionality of electoral quotas for women depends on the approach that domestic legal orders adopt to four issues: political representation, equality, affirmative action and political rights. An additional crosscutting factor that influences the constitutionality of these quotas is gender, mainly through its effects on the understanding of political representation and equality. From the comparative law perspective, three jurisdictions were analysed: France, Spain and Mexico. After exploring these systems' approaches to political representation, equality, affirmative action and political rights, the process of adoption of electoral quotas for women is discussed, particularly the constitutional litigation about quota laws. Finally, the relationship between the theory and the practice of assessing the constitutionality of electoral quotas for women is analysed, concluding that although courts use a theoretical framework formed by political representation, equality, affirmative action and political rights, they adopt a somewhat simplistic approach to these issues, using only one of these theoretical factors as the primary determinant, often side-stepping the most controversial issues connected with these factors, and almost completly ignoring the particularities of the target group (women). Additionally, in each jurisdiction the decisions of the courts are also influenced by domestic political and legal factors.

Le Global Administrative Law (GAL) -- ou "droit administratif global" en français -- est apparu en 2005, à la suite des réflexions conjuguées de chercheurs d'universités américaines (principalement de la New York University School of Law) et italiennes. Le GAL se donne pour but d'analyser un ensemble de mécanismes, règles et procédés comparables aux droits administratifs nationaux utilisés pour promouvoir la transparence, une participation accrue, et la mise en place de mécanismes de responsabilisation (Accountability), au sein d'une structure hybride (Global Administrative Space), composée aussi bien d'organisations internationales, que d'acteurs non-étatiques. La présente étude se donne pour objectif d'analyser les interactions entre ce GAL et le droit international public d'un point de vue institutionnel. / Global Administrative Law (GAL) - or "droit administratif global" in French -appeared in 2005, as the fruit of the combined work of researchers from American (mainly New York University School of Law) and Italian universities. GAL's purpose is to analyze a set of mechanisms, rules and procedures comparable tonational administrative law used to promote transparency, increased participation,and the establishment of accountability mechanisms, within a hybrid structure(called Global Administrative Space), composed of both international organizations and non-state actors. This study's objective is to analyze theinteractions between GAL and public international law from an institutional pointof view.

Le droit administratif ne semble pas pouvoir être pensé sans les administrés. « Administré » figure en effet parmi les termes les plus employés tant dans les discours politiques ou administratifs que dans la doctrine juridique. Or, il n’en existe aucune définition. L’on ignore en outre s’il constitue une notion juridique, c’est-à-dire une qualification obéissant à des critères juridiques déterminés et emportant des effets de droit. C’est à ces incertitudes que la thèse entend répondre. L’analyse du droit positif montre que, contre toute attente, l’« administré » n’a jamais eu et n’a toujours pas d’existence en droit : il ne correspond ni à une catégorie déterminée, ni à des droits ou des obligations qui lui seraient propres. L’époque actuelle, où le droit administratif prend de plus en plus en considération les intérêts des individus et leur octroie davantage de droits, aurait pu constituer l’occasion idoine pour la transformation de l’administré en véritable notion juridique. La technique montre qu’il en va autrement. Cette dernière s’appuie en effet sur d’autres catégories pour se subjectiviser. Surtout, le droit positif tend aujourd’hui à s’organiser autour de la notion juridique de « personne », qui transcende toutes les autres catégories. La possibilité pour l’administré d’être réhabilité d’une quelconque manière dans le futur constitue, en raison des influences nombreuses que le droit administratif connaît, une perspective dont la réalisation s’avère peu probable. Absent du droit positif, l’administré est au contraire omniprésent dans les discours sur le droit administratif. Pour les producteurs du droit positif issus de la joute démocratique (pouvoir législatif et pouvoir exécutif), il constitue un vocable parmi d’autres dont la valeur en termes de communication est scrupuleusement sous-pesée. Mais, pour les spécialistes de l’étude du droit administratif, et notamment la doctrine universitaire, il remplit une fonction proprement fondatrice. Bien qu’il existe différentes conceptions de l’administré et que ces conceptions soient profondément antagonistes, l’idée même d’administré constitue un pôle structurant de la pensée majoritaire sur le droit administratif : l’« administré » correspond à l’individu qui entretient des relations avec l’« administration », et l’encadrement de ces relations constitue l’objet d’un « droit administratif » disposant de sa propre identité. Ainsi, plus qu’au monde du droit positif, l’administré se révèle appartenir aux légendes du droit administratif, tels d’autres mythes qui structurent son récit. C’est le constat qui découle naturellement de son inévitable déconstruction et de son improbable reconstruction. / « “Administré” » is a word that is frequently used in administrative law research. At first  glance, in the French language, it refers to any person who is in relation with an administration. The dissertation undertakes an inquiry into inquires into its legal meaning definition: in law, to which conditions one can be qualified as an « administré » ? what requirements must one meet to qualify as an “administré”? What rights and obligations stem from this qualification ? Inspection of substanpositive law as well as the legal doctrine shows that it cannot be qualified as a genuine legal notion. Indeed, on the one hand, its key lines are not firmly determined. On the other hand, no juridical legal effect stems from it. To On the contrary, the word is linked to a tradition in French administrative law research, which has never  been made explicit.   As part of legal lingojargon, it contributes to the identification of a professional community as well as it has a legitimation functionpurpose of legitimation for it. Besides, it conveys a French administrative tradition, which lies on a political history. According to this tradition,  in France, « “administration »” and « “administrés »” are two opposite sides that do no’t  communicate with each other : the “« administration”, », as an extension of the State, cares for  the public interest while “administrés” play an ancillary role in that and are only concerned by their ownprivate interests.  For these reasons, the word “administré” is legally insignificant meaningless but symbolically of first utmost importance.  Furthermore, tThe evolutions of administrative law during the last five decades furthermore point towards a decline of the « “administréadministré” » on both plans. Legally, the legal order undergoes an  orientation towards the notion of “person”, notably because of the European Union law,  but not only. Politically, the  distance between civil society and administration in determination of collective subjects tends to reduceshrink, especially at the local level. Under those circumstancesIn these conditions, the French legal order can less and less be read as a bipolar system opposing an « “administration” » to “« administrésadministrés” ».  EventuallyFinally, the « “administréadministré” » can be qualified as a legend not only because it means nothing in law, but also because, from a political point of view, it is doomedestined to be part of the past.