published_or_final_version / Law / Doctoral / Doctor of Philosophy

In this thesis I argue that contemporary legal philosophy provides an inadequate analysis of central indeterminacies in law. I focus on "judicial discretion" as central to current analysis. Positivists, such as H.L.A. Hart, argue that it is the contingencies of human society that give rise to uncertainty in the application of law. Therefore, they believe that judges must be given discretionary powers. Ronald Dworkin, an American philosopher, believes that judges should not be given such powers. For him, it is the positivists' conception of law that is amiss. He believes that once the institutions of law are correctly appraised, the need for judicial discretion will be seen as a conceptual fault arising from a positivist analysis. In order to provide a critical framework in which to assess this debate, I outline the Causal Theory of Law developed by Professors S.C. Coval and J.C. Smith. If the attention given the concept of judicial discretion represents a concern with subjective elements in law, then the attention given the concept of a rule represents a concern with objective elements in law. In a tentative way, one might interpret the question at issue as being: "Is law ultimately an affair of reason or will?" Other questions follow: "Is this a false dichotomy?" "Must law be a combination of both authority and power, rational argument and official fiat?" I address these questions indirectly through an examination of Ronald Dworkin's legal philosophy. I find that Dworkin fails to understand the nature and complexity of the problems that he confronts. He believes that legal systems can be designed so that authority and power, legitimacy and efficacy never compromise each other. He does this, however, by giving precedence authority. The causal Theory interprets such resolutions as "disjunctive". Dworkin's resolution betrays his inability to appreciate the complexity of the problem. He also obscures the nature of the problem by his "rights thesis", which interprets the issue involved as primarily a question of normative political theory. However, his conception of normativeness is ambiguous and requires analysis. I argue, against Dworkin, first, that indeterminacy in law is a problem for institutional design, and second, that to argue that this design problem is normative is to take a view that is overly narrow and ultimately misleading. I conclude that those involved in the philosophical debate surrounding indeterminacy in law erroneously think that the solution will take a disjunctive form: One side or the other, of the antinomy between reason and fiat in law must be rejected. In line with the Causal Theory, I argue that once this problem is seen as one of institutional design, the problem takes on an entirely new shape. It becomes one of management and experiment. The function of the law is to help manage the political affairs of society, and also to provide opportunities for individual and group initiatives. Man is limited in his experience and knowledge. In the design of legal institutions man's abilities are not infinite; he can hardly be expected to foresee all eventualities. But such indeterminacy remains a matter of degree, relative to man's knowledge and his ability to use it. The legal enterprise, as does the scientific, can proceed without a completely worked out set of agreements, or system of beliefs. What is essential is an understanding among the participants as to how such sets will be developed. The core remains empirical. / Arts, Faculty of / Philosophy, Department of / Graduate

Thesis (Ph.D.) - University of Queensland, 2006. / Includes bibliography.

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Thesis (Ph. D.)--Ohio State University, 2006. / Title from first page of PDF file. Includes bibliographical references (p. 243-249).

This thesis focuses on a relatively new manner of looking into the discretionary decisions implemented bypowerful social actors - judges, prosecutors, and police officers- resulting in detremential effects for African Americans in the criminal justice system. While it is common to look into inequality in the system, there has not been much research done on the frame of thinking of these actors when making these decisions. This study will develop the concept of the "white framing model" while simultaneously demanding change.The white framing model will be developed by linking four theoretical concepts the white racial frame, systemic racism, interest convergence, and Eurocentric law. This thesis found the thinking of these actors from this frame has resulted in surmountable amounts of discrimination and a disproportionate amount of African Americans in prison. Seventy percent of African Americans have reported an experience of a discriminatory nature compared to 36% reported by their white counterparts in their lifetimes. These discriminatory acts are often experienced through interaction with law enforcement agencies that are in place to provide social order. Further results show the overall consequences for black men were being imprisoned 11.8 times more than whites. This study provides evidence that uncovers the covert racist nature of the criminal justice system that can be ignored by the untrained eye. Future work will involve change in policies, people holding these positions, and implementation of these solutions. These policy implementations include demanding a critical mass of African Americans to occupy powerful social positions, and the implementation of programs to reflect assistance for people of color. These solutions will not only provide a representative sample in criminal justice positions, but also make a difference in a system that is often unjust to people of color.

This dissertation consists of three papers relating to the field of Law and Economics. The first two papers examine the impact of increased judicial discretion on both racial disparities and inter-judge disparities in the federal criminal justice system. The third paper analyzes the effects of OSHA programs on workplace safety, wages, and employment. The common thread throughout this work is a focus on how legal actors and institutions affect substantive outcomes of individuals. / Economics

This study represents a qualitative and quantitative analysis of the Supreme Court of Canada's treatment of the exclusionary rule set out in s.24(2) of the Canadian Charter of Rights and Freedoms. The objective of this thesis is to contribute to the theoretical debate between legal positivism and legal realism by examining judicial discretion and the application of s.24(2) by the justices of the Supreme Court. The goal of this work is to demonstrate the weakness of the positivist school in its basic premise that judicial decisions are based solely on the application of the rule of law. It is contended that Supreme Court decisions are derived not only from the words of the law, but also from extra-legal factors, since judges possess certain predispositions by virtue of their own personal experiences. This thesis will illustrate that the exercise of judicial discretion by the Court in its interpretation of s.24(2) has had a profound impact on the nature of Canadian criminal justice policy, moving Canada even closer to the due process model of criminal justice and further from the crime control model than was intended by the framers of the Charter. Both the qualitative and quantitative analysis of s.24(2) Supreme Court decisions show that the language of this provision is often circumvented by the justices who are not constrained by either the intention of the framers or even their own precedent. Consequently, the vague wording of this provision coupled with the discretion conferred on these justices allows the Court to read the exclusionary provision in a manner that best accommodates the exclusionary philosophies of the majority of Supreme Court justices.

Thesis (S.J.D.)--University of Toronto, 2004. / Adviser: David Dyzenhaus. Includes bibliographical rererences.

Thesis (doctoral)--Universität, Bonn, 2005/2006. / Includes bibliographical references (p. [424]-444) and register.