This thesis illustrates and analyses the ambiguity of the Bengali middle-class perception regarding the colonial legal and penal institutions, specifically the criminal courts and the jails, in the second half of the nineteenth century. The institutional functioning of the criminal courts and the jails form a marginal part of the thesis. The main focus is the bhadralok perception of these institutions as the repository of "law and order" as established by the colonial rule of law. This thesis contends that though the perceived need for preserving law and order through the rule of law came from the colonial government in the first half of the nineteenth century, it had the approval of the bhadralok. It is further argued that the categories of the criminals in the Bengal Presidency (or province), generated by the colonial government at the site of the criminal courts and the jails, were congruent with the divide separating the higher castes from the lower castes. These categories helped the bhadralok to take on a non-criminal identity, based on their perception of the colonial discourse on the criminal classes. Further, from the mid nineteenth century to the late nineteenth century, the increasing familiarity with the courts and the jails enabled the bhadralok, on the basis of their own changing experience, to construct a non-criminal identity for themselves. The central theme of the thesis is therefore the evolution of a bhadralok noncriminal identity revolving around their experience of the courts and the jails throughout the mid to late nineteenth century. On the basis of this non-criminal identity, the bhadralok in the late nineteenth century stood in opposition to the colonial government's mechanisms of control, namely the criminal courts and the jails, by questioning its right to impose such control on a non-criminal section of society, and thereby immediately imbuing the colonial government with illegality and oppression. But this was possible only after the identity of criminality had been grafted onto the lower sections of the society, the chhotolok. as it enabled the bhadralok to construct the mental image of the criminal courts and the jails as generally applicable only to the chhotolok. This, in turn, rendered the site of the criminal courts and the jails as spaces reserved for the lower sections of society. The first decade of the twentieth century is examined briefly to bring out the contrast of this period as against the bhadralok discourse evolving through the mid to late nineteenth century, which had set out the space of the criminal courts and the jails as desecrated space, unfit for the bhadralok to occupy. Against this background, the national movement endowed the legal and penal procedure with illegality and misrule of law, when they operated on the bhadralok as political prisoners. This was in diametrical contrast to the perception of the legitimacy of the legal and penal institutions when they operated on the chhotolok with the end of preserving law and order through these two institutions.

abstract: Over the last few decades, specialized courts have received an increasing amount of research attention. The existing literature mostly supports drug courts and demonstrates their effectiveness in reducing recidivism and substance abuse, more generally (Belenko, 1998; Bouffard & Richardson, 2007; Gottfredson, Najaka, & Kearley, 2003). Whether the drug court model “works” across offender subgroups remains an open empirical question. The current study uses data originally collected by Rossman and colleagues (2003-2009) for the Multi-Site Adult Drug Court Evaluation (MADCE) to examine the effect of drug court participation on recidivism among unique offender subgroups. First, a context-specific risk score is used to examine recidivism outcomes. Second, offender subgroups are statistically created using latent class analysis (LCA). Recidivism outcomes are then assessed by subgroup, with these results compared to the initial measure of risk. Both analyses are performed using the full sample of drug court participants and the comparison groups. Finally, the third model uses a split sample analysis by court participation to explore the full effects of drug court. The findings of the present study contribute to the theoretical literature and help inform future policy regarding risk assessment and the treatment of offenders in drug courts. / Dissertation/Thesis / Masters Thesis Criminology and Criminal Justice 2018

M.A. / This study focuses on the concept of an open society, a concept that was given currency by the philosopher Karl Popper in his 1945 book, The Open Society and its Enemies. Popper provides five imperatives for an open society: state power must be limited and strictly controlled; the aim of public policy must be the reduction of misery; massive reconstruction must be foresworn in favour of incremental changes, guided by critical feedback from the citizenry; institutions to enable free criticism are essential to an open society; and individualism and diversity must be cherished as the source of a richer and more valuable critique. This study examines the South African Constitution to evaluate the extent to which it, as an institution, contributes to the attainment of a Popperian open society, and concludes that it provides the enabling conditions to attain four out of five of Popper’s imperatives. Where it does not succeed is in providing for incremental social change: on the contrary, it enshrines a vision of a radically reconstructed society. Ironically, that vision seems to have been renounced by the state, which has instead adopted an austere economic policy designed to win global approval. This policy has elicited widespread criticism, as have other government policies. Government response to criticism has been far from the positive acceptance envisaged by Popper, ranging from dismissal to outrage to blatant attempts to silence criticism through regulation or legislation. In the case of criticism from the courts (in the form of judgments against government agencies) response has frequently been non-compliance with court orders, even with Constitutional Court orders. The Constitutional Court represents one of the institutional checks and balances on the state demanded by Popper, having considerable powers of judicial review to guard against the abuse of state power. An evaluation of the Court’s contribution towards the attainment of an open society suggests that initially the Court was somewhat reticent about exerting its powers, to the extent of being taxed by some with undue deference towards government. In recent years, however, the Court has shown signs of increased assertiveness, finding for government on fewer occasions and attaching structural interdicts to its orders. It nonetheless requires something more, if the Constitutional Court is to make the contribution it should towards attaining an open society, and this study concurs with a suggestion that the Court undertake public interest litigation, as other apex courts have done. The open society envisaged by the Constitution (and by Popper) requires that the Constitutional Court be vigilant for abuses of state power, provide an ongoing critique of public policy through its judgments, and even accept its share of responsibility for realising the reconstructive vision portrayed in the Constitution, through actively identifying, investigating and addressing injustices in our society.

Magister Legum - LLM / South Africa

Magister Legum - LLM

This treatise addresses the possible creation of an African criminal court for individual criminal responsibility for crime of genocide, crimes against humanity, and war crimes. It does so by critically analysing the Statutes of Special Court of Sierra Leone, International Criminal Tribunal for Rwanda, and Rome Statute of the International Criminal Court in relation to the provisions addressing the principle of individual criminal responsibility, jurisdiction, amnesty and immunity. Another aim is to indicate the strength and weaknesses of the cited statutes in relation to the above provisions. Finally a further aim is to provide an analysis of the statutes, and any other international law applicable and determine whether Africa needs a separate criminal court. The principle conclusion is that statutes are facing challenges in relations to the provisions above. It is established that Africa does not have a regional criminal court and the African Union has attempted to extend jurisdiction of the African Court of Justice and Human Rights to criminal jurisdiction but the process has amounted to heavy criticism and unforeseen legal implications. It is eventually concluded that Africa may consider the creation of a separate criminal court for the future and such a court is currently not needed. Support should be given to the ICC.

"As already mentioned, gauranteeing the right to a fair trial aims at protecting individuals from unlawful and arbitrary curtailment or deprivation of other basic rights and freedoms. The fundamental importance of the right to a fair trial is illustrated not only by international instruments and the extensive body of interpretation it has generated, but most recently, by a proposal to include it in the non-derogable rights stipulated in article 4(2) of the ICCPR. Standards for a fair trial may stem from binding obligations that are included in human rights treaties to which a state in examination is a party, but they may also be found in documents and practices which, though not binding, can be taken to express the direction in which the law is evolving. One of the problems is that law and human rights have been viewed largely as Western concepts, and are therefore defined and valued by Western criteria. This leads to a number of difficulties. First, there are many non-Western societies in which law and human rights thus defined, is impractical and mechanisms of protecting human rights in non-Western justice systems are not recognised as comparable counterparts to those in Western societies. Secondly, African states have failed to abide by their international fair trial obligations because, probably, these standards are impractical given the realities like poverty, illiteracy and strong cultural beliefs that characterise most African communities. As a result, the law applied by the Western style courts is felt to be so out of touch with the needs of most African communities, and coercion to resort to them amounts to denial of justice. This explains why communities, especially in the rural Africa, resort to indigenous African justice systems irrespective of state recognition or otherwise. Upon realisation that the Western style of justice did not respond to the prevailing post-genocide situation for example, the government of Rwanda re-established traditional courts to help deal with the crime of genocide and foster reconciliation. A Gacaca court is constituted of a panel of lay judges who coordinate a process in which genocide survivors and suspected perpetrators and the latter between themselves confront each other. They, and the community, participate by telling the truth of what happened; who did what during the genocide, and then the judges, based on the evidence given to them, decide on the case. These judges are elected by their respective communities for their integrity, not their learning. However, human rights organisations argue that Gacaca proceedings violate the accused persons's fair trial rights. They question among other things capacity of lay judges who make decisions in these courts, to conduct a fair trial. They also contend that Gacaca does not guarantee the right to be presumed innocent because it requires confessoins and that defendants are denied legal representation. In South Africa, traditional courts (konwn as chiefs' courts) exist. They have played a crucial role in dispensing justice in the indigenous communities and are prototypes of the kind of dispute resolution mechanisms desirable in a modern society. They apply 'people's law', which developed as a result of lack of legitimacy of the Western system of justice among the indigenous South Africans. However, critics see them as conservative and unable to render justice in the modern social, economic and political climate in South Africa today. As a result, Western style court proceedings that are conducted in foreign languages to indigenous communities, and thus have to rely on inaccurate and unreliable interpreters in addition to costs for legal counsels and subjection to very technical and formal procedures, are the only alternative in criminal matters. Briefly, the major problem is to ascertain whether indigenous African criminal justice systems do, or otherwise conform to fair trial standards. If they do not, according to who are they not fair? In other words, is there a universal measure of fairness or does appreciation depend on people's enviornment and their socio-economic backgrounds, in which case, the beneficiaries of indigenous African criminal justice systems should be the ones to appreciate its fairness?" -- Introduction. / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2004. / Prepared under the supervision of Prof. Nii Ashie Kotey at the Faculty of Law, University of Ghana / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

In this dissertation I study ways in which regulatory institutions affect firms in India. The first chapter (coauthored with Michael Gechter) investigates the effects of an important but little-researched set of Indian labor regulations which only apply to establishments that hire 10 or more employees. Using data from India's 2005 Economic Census, we observe that the distribution of establishments by size closely follows a power law, but with a significant drop in the distribution for establishments with 10 or more workers. By fitting this distribution to a model of firm size choice in the presence of size-based regulations, we use this break in the observed distribution to estimate the implied costs of the regulation. In the second chapter I examine whether the speed of courts contributes to economic growth. I do this by making the assumption - following Nunn (2007) - that fast courts should be more beneficial to firms in contract-intensive industries, where contract intensity is measured by the proportion of inputs in an industry that cannot be bought on an organized exchange. Using data on Indian firms covering the period 1999-2008 I find that firms profits and value-added grew faster in contract-intensive industries that were located in states with faster courts. The third chapter (also coauthored with Michael Gechter) examines the effects of removal of regulations between 2001-06 that had previously reserved certain products for exclusive production by firms with capital below a certain threshold. Our main finding is that de-reservation led to an increase in firm investment and output by certain groups of firms.

Thesis advisor: Shep Melnick / Every decade, following the U.S. Census, lawmakers redraw state and federal legislative districts. This process of redistricting is a necessary aspect of representative democracy for capturing population changes in a dynamic society. While this responsibility of redrawing legislative districts has historically been left to state legislatures to complete - and more recently to commissions and panels - the reality is that every redistricting cycle, some of these maps are actually drawn by the U.S. federal courts. These maps determine the district boundaries for millions of Americans - who votes where, for whom and with whom. Since the Supreme Court ruled that legislative reapportionment was a justiciable issue for federal judiciary in 1962’s landmark decision, Baker v Carr, the lower federal courts have regularly taken the extraordinary step of drawing legislative districts themselves when the initial redistricting institution fails to implement a lawful plan. This places the famously nonpartisan institutions at the center of the most political activity. There is no clear constitutional or statutory guidance for how federal courts should make these remedial maps, and there are dozens of competing criteria for where to draw each line: compactness, partisan advantage, racial representation, competitiveness, protection of political subdivisions, etc. This raises fundamental questions about the role of the federal courts in American government, the nature of representative democracy, judicial independence and the separation of powers, the criteria for judging fairness, institutional capacity and federalism. Despite these tensions, there has been no comprehensive research on the impact that federal courts have on redistricting. This dissertation aims to address these tensions and fill this scholarly gap, answering the question of What has been the impact of federal court involvement in legislative redistricting between 1962’s Baker v Carr and 2019’s Rucho v Common Cause. In this dissertation, I use five approaches to undertake a comprehensive examination of the role of the federal courts in redistricting during this 57-year period. In Chapter 2, I adapt Supreme Court decision making theories for the lower federal courts to develop a theory of institutional constraints. I argue these constraints determine the courts’ choices on when, how and why to make a redistricting map and which criteria to use. In Chapter 3, I use an American Political Development approach to examine the changes in judicially manageable standards created by the Supreme Court over time for understanding the legally constraining precedents for the lower courts. In Chapter 4, I conduct an original descriptive content analysis of more than 1,200 lower federal court decisions between 1960 and 2019 related to redistricting to understand the preconditions for federal court action, the trends in lower federal court caseload and outcomes, and the obedience of the lower courts to Supreme Court precedents. In Chapter 5, I present the analytical heart of this dissertation, testing my theory and defining what makes a federal court-made map distinct from those made by other institutions. To accomplish this goal, I use an original dataset of five decades of redistricting plans at the state and federal levels together with 13 varied quantitative methods developed by myself and other political scientists for measuring gerrymanders. Analyses of these data allow me to quantify the criteria used by the federal courts in distinction to other institutions, leading to predictive results about the federal courts as map makers. I find that federal courts create redistricting plans with lower population variance, more compact districts, and a higher proportion of majority-minority districts for descriptive racial representation than legislatures or commissions. Federal courts also create some partisan bias in their plans but at a lower level than is seen in legislatures. In Chapter 6, I take a qualitative, case study approach and compare these empirical results to the actual court opinions in four representative instances where the courts drew the maps. I examine how well judges understood the nonpolitical criteria they were actually using in practice and apply my theory of institutional constraints on lower federal courts. In sum, this dissertation offers: • new datasets and methods for studying redistricting institutions; • descriptive accounts of the trends, processes and development of federal courts redistricting; • an institutional theory and approach for studying the lower federal courts; • A detailed examination of the development of Supreme Court precedents on redistricting that constrain lower court decision making; • and quantitative and qualitative analyses of which criteria the federal judiciary favors when they draw plans and why. Most importantly, this dissertation finds that the criteria courts favor in practice differ from those used by state legislatures and commissions. Federal courts apply criteria shaped by judicial constraints and that reflect a distinct understanding of legislative representation. The dissertation’s conclusion examines the implications of these findings for American democracy, the lower federal courts, voters and constituents. / Thesis (PhD) — Boston College, 2022. / Submitted to: Boston College. Graduate School of Arts and Sciences. / Discipline: Political Science.

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