This thesis examines the intellectual context of the first international congress of comparative law held in Paris, at the occasion of the 1900 World Fair. In particular, it articulates some of the unstated assumptions that made it possible for the conversation of this congress to unfold as it did. Using methods of conceptual history and discursive analysis, the author shows how this constitutive conversation for the discipline of comparative law drew from many discourses including conversations about the prestige of French legal science, claims to disciplinarity and the corresponding search for a scientific method, the desire to master the processes of legal unification arising from international trade, a concern with ensuring the place of France in the hierarchy of nations in a period of national malaise, and a mission befalling France to civilize the rest of the world. In showing how these different conversations shaped the discourse of the first congress of comparative law, the thesis outlines the ways in which they also participated in (re)shaping deeply entrenched conceptions of legal knowledge and legal scholarship. / Graduate

This thesis examines the principle of mutual trust in EU criminal law. Mutual trust has become a household term in the EU criminal justice vocabulary and is widely regarded to be a prerequisite for a successful application of the principle of mutual recognition. But despite its widespread use, the parameters of the concept are not clear. Since mutual trust has become one of the core objectives of the EU's criminal justice policy, and legislation is adopted to build trust, a more substantial understanding is required. This thesis has taken a three-fold approach to substantiate and conceptualise the principle of mutual trust. Firstly, a multi-disciplinary assessment of social science literature to gain a better understanding of what trust is and how it functions. Secondly, a black letter approach combined with a discourse analysis, in order to reveal the practical difficulties that have arisen in relation to (insufficient) trust. This has revealed a number of flaws in the legal framework, as well as in policy documents dealing with trust, mainly due to the strict nature of the trust presumption. Thirdly, a comparative study with the United States of America, focused on interstate cooperation within a federal structure, offers fresh insights. Several lessons and limitations have been drawn from this study that have allowed scrutinising the EU’s trust building policy and logic.The thesis argues that mutual trust, a core principle of EU criminal law, is multi-faceted: a collective notion bringing together various aspects and principles relevant to rendering mutual recognition in criminal law a success. Its constitutive elements can broadly be categorised into social, legal and political elements. The first relates to the inherent subjective character of trust, the latter to its specific application in the legal EU criminal justice context. By bringing these elements together, a principle with a meaning specific to EU criminal law appears, a term of art. Most importantly, the substance of the principle builds on the idea of a similar European legal culture: more specifically of a European criminal law. It furthermore relates to the motivation for Member States to cooperate, i.e. fighting increasing cross border crime and building an Area of Freedom, Security and Justice. But whilst building on a shared legal culture, mutual trust also relates to the ideal to maintain national diversity in criminal law. On the basis of this dual notion, a comprehensive approach is proposed to tackle trust related difficulties. These relate mainly to harmonisation, most prominently of procedural safeguards; non-legal forms of trust building, aiming to enhance the provision of accurate information; and finally allowing the trust presumption to be rebutted, to create a more substantive principle of trust mindful of realities on the ground. Together, these should enable the principle of trust to operate in accordance with its two main functions, namely to facilitate the application of mutual recognition in the criminal justice sphere, while paying due regard to fundamental rights and liberties. / Doctorat en Sciences juridiques / info:eu-repo/semantics/nonPublished

LL.M. / Age discrimination first arose in the post-industrial revolution period. Prior to that most people earned a living through a connection to the land. Agriculture was a family affair with all members contributing to the task, from the youngest to the oldest, according to their abilities. As the ability for labour waned, older people tended to be cared for by their families. Those who did not work on the land were mostly self-employed artisans and crafts people, such as cobblers, carpenters and blacksmiths, and they worked to whatever schedule they wished. Also, tools used at that time were different to those used today and expertise was achieved through age and experience, so that a tradesman such as a goldsmith was a more skilled artisan if he had 30 years experience than an associate with considerably less experience. Age discrimination in employment just did not occur because there was little employment by large impersonal corporations.

Loss of earning capacity is a concept that is relevant to actions in which a wrongdoer is held liable for the detrimental effect of his actions on a claimant’s capacity to generate an income.Take the example of a claimant who had worked as a shift leader in a mine but after a damage-causing event is only capable of working above ground as a clerk. By comparing his salary pre-morbid with his salary post-morbid, it is possible to calculate the difference. This difference, if the former is the greater, constitutes the damage suffered by the claimant and, as such, the amount constitutes what he can claim as compensation.In an instance where a person is not in a position to furnish evidence about his earnings pre- and post-morbid, nevertheless, the court may award compensation for the claimant’s loss of earnings.Essentially, the compensation is payment for loss of earning capacity and not for loss of earnings.In making such an award, the court recognises that the claimant experiences a partial or total impairment of his capacity to generate an income.Koch states that in such problematic cases the courts often shy away from quantifying a claimant’s estimated annual income.Instead of employing the sum-formula approach,the courts opt for a general assessment using the “some-how-or-other” approach.What seems at first like a straightforward pre- and post-morbid calculation therefore is fraught with intricate theoretical questions. Although this problem is more evident in cases of unemployed claimants and children, it may also occur in other cases where loss of earning capacity is one of the heads of damages. / Prof. J.W.G. Van der Walt

De la certitude d'une peine à son exécution complète on mesure combien la voie est pleine d'imprévus. Le temps, les magistrats, le pouvoir politique ont leurs actions propres qui vont annihiler, écourter, voire interrompre le processus d'application de la peine privative de liberté. L'effectivité de cette sanction pénale n'a cessé de souffrir de mécanismes légaux et d'événements de faits. Ces derniers, tout en permettant à leur bénéficiaire d'être libre, constituaient au même moment un obstacle ou un empêche réel à l'application effective de la peine prévue par les textes ; ou même celle prononcée par les juges. La place de la prison dans le système pénal français, marocain et sénégalais est cruciale. La prison est la peine de référence, sans l'être, tout en l'étant dans ces pays en question comme dans beaucoup d'autres pays. C'est tout le paradoxe de la politique pénale de ces autorités françaises, sénégalaises ; et moyennement marocaines. A ce titre, il semble donc nécessaire de s'interroger sur la nature et la place de la prison dans l'échelle des peines. La surpopulation carcérale, l'inefficacité des peines d'emprisonnement obligent à affronter la question de sa prédominance. Car la recherche de la certitude et de l'effectivité de la sanction pénale s'impose donc fortement. / Certainty of a sorrow to its execution supplements one measures how much the way is full with unforeseen. Time, the magistrates, the political power has their own actions which will destroy, to curtail, to even stop the process of application of the sentence of emprisonment. The effectiveness of this penal sanction did not cease suffering from legal mechanisms and events of facts. The latter, while making it possible to their recipient to be free, constituted at the same time a real obstacle or one prevented with the effective application of the sorrow envisaged by the texts; or even that pronounced by the judges. The place of the prison in the French, Moroccan and Senegalese penal system is crucial. The prison is the sorrow of reference, without the being, while being it in these countries in question as in much of other countries. It is all the paradox of the criminal policy of these French, Senegalese authorities; and fairly Moroccan. For this reason, it thus seems necessary to wonder about the nature and the place of the prison in the scale of the sorrows. Prison overpopulation, the inefficiency of the sorrows of imprisonment oblige to face the question of its prevalence. Because the research of the certainty and the effectiveness of the

Résumé non transmis / Summary not transmitted

Based on observational fieldwork and interviews carried out in Boston in ten Islamic community centers and mosques, supplemented by archival research in Suffolk County court records and surveys of relevant literature, this ethnography investigates how various communities and sects of Sunni Muslims in the Boston area utilize and conceptualize Islamic law. The presence and operation of Islamic law in the US (as well as in Europe) has increasingly become a center of interest and conflict. Some commentators have portrayed the operation of Sharia in non-majority Islamic countries as a victory for cultural pluralism and for an open, even expanding, global community. Others see Sharia as a threat to basic and ancient lifeways that have traditionally been characterized by the predominance of “Judeo-Christian” religion. This ethnography seeks to move beyond these poles to examine what role Islamic law actually plays in the lives and religion of a cross-section of American Muslims. Through a combination of interviews, the examination of legal records and local government activities, such as courts and public hearings I use the microcosm of the Islamic community in Boston to understand how American disestablishmentarianism, or the American relation between the church and the state, creates an environment that allows Muslims to seek and gain public recognition and accommodation for their faith. Moreover, I examine how these laws allow Boston’s Muslims, and in turn the Muslims of the United States at large, to build lives that are distinctly Islamic while simultaneously incorporating themselves within the larger American cultural milieu, which has historically been characterized by primarily Christian and less prominently Jewish religious cultural practice. The thesis also examines the role Islamic law plays in building both accommodations and distinctions between the Islamic community and its American neighbors. It analyzes which aspects of the Sharia various communities of Muslims consider most important and how they reconcile differences and conflicts between aspects of American culture and law that present obstacles to realizing the ideal Islamic life according to Sharia. Far from a draconian code that demands complete obedience, the data shows that Sharia is actually a flexible tool that makes accommodation possible. At the same time, the discourse and praxis of Sharia also divides American Muslims along lines that often have nothing to do with the law per se but rather reflect the basic tensions and divisions of American society at large. In particular, it considers the differences between African-American Muslim communities and Muslims originated from the Middle East and elsewhere.

The thesis is a comparative legal analysis of environmental principles in environmental law. Environmental principles are novel concepts in environmental law and they have a high profile in environmental law scholarship. This high profile is promoted by two factors – the high hopes that environmental law scholars have for environmental principles, and the increasing prevalence of environmental principles in legal systems, particularly in case law. This thesis analyses the latter, mapping doctrinal developments involving environmental principles in two jurisdictions and court systems – the courts of the European Union and the New South Wales Land and Environment Court. This doctrinal mapping has both narrow and broad aims. Narrowly, it identifies the legal roles in fact taken on by environmental principles within legal systems. Broadly, and building on this assessment, it responds to scholarly hopes that environmental principles (can) perform a range of significant roles in environmental law, including solving both environmental problems and legal problems in environmental law scholarship. These hopes are based on assumptions about environmental principles that have methodological weaknesses, including that environmental principles are universal and that they fit pre-existing models of ‘legal principles’ drawn from other areas of legal scholarship. The thesis exposes these methodological problems and concludes that environmental principles are not panaceas for pressing and perceived problems in environmental law. It does this by showing that the legal roles of environmental principles, which are significant in environmental law and its current evolution, can only be understood by closely analysing the legal cultures in which they feature. This is a conclusion for environmental law scholarship generally – while environmental issues and problems may be urgent and often global, legal analysis of the law that applies to those problems requires close engagement with legal systems and cultures, as they are and as they develop.

Methodological Problems of Comparative Law Summary From the end of the Second World War the comparative law is constantly growing. Growth of the comparative law was enabled, but also forced, by escalating globalization. Development of an information and communications technology in the past decades growth of the comparative law only accelerate. On this aggressive growth the comparative law wasn't prepared, which led to perversion of its content, subversion of its method and establishment of Feyerabend's methodological anarchism, which to this day under the slogan "anything goes" reigns over the comparative law. This thesis is an attempt to create order in the comparative law. We don't do that for the comparative law, or because of the current state of the discipline, but because of our own interest in application of the comparative method in the legal science. In the first section of this thesis we propose a working definition of comparative law. In the second section of this thesis we focus on the structure of comparative method: on the structural elements which compose the comparative method. In the third section of this thesis we focus on the composition of comparative method: on the compositional elements by which are the structural elements of the comparative method integrated into the complete whole....

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.