The aim of the thesis is to critically evaluate the influence of the Human Rights Act (1998)[HRA] on prison service policies and prison officer understandings of prisoner human rights, in the period from October 2000 to October 2005. Discourse analysis is used to structure the thesis, with the implementation of the HRA located within what Foucault (1972) has called a "discursive formation": that is, the complex interrelationship between penology, law, penal policy, and occupational culture. Utilising a neoabolitionist normative framework, the legitimacy of the current meanings of prisoner human rights are scrutinised, and an alternative promoted. It is argued that in the five year period under review, the HRA has been restrictively interpreted in domestic courts and effectively marginalised in penological discourses and prison service policies. Focus then turns to an empirical study of prison officer occupational culture, conducted in one prison in the North West of England in 2002. The central finding is that in the original starting position of officer-prisoner relationships, prisoners are constructed as ghost like figures whose needs and sufferings are invisible to officers. Justified through psychic distancing, prisoners are othered and constructed as beyond the realm of humanity. The failure of the HRA to institutionalise a human rights culture or expand upon previous meanings of prisoner rights, is located within the inherent double dehumanisation of prison work, populist penological discourses, the limitations of legal interpretation, carceral clawback, and a lack of political will. The thesis concludes with the promotion of an alternative positive rights agenda for citizens, and a call for alternative means of dealing with wrongdoers that recognises their shared humanity.

This thesis is an ethnographic study of the Ashéninka, an indigenous Amazonian group of eastern central Peru. While situating the Ashéninka ethnographically within Amazonian anthropology the project specifically seeks to understand the nature of Ashéninka society, notions of sociality and forms of self-identification. It also examines how these forms of thought and practice shape the Ashéninka’s continuing interactions with Peruvian national society. My research first seeks to understand the underlying mechanisms that help Ashéninka householders to maintain their independent lifestyles. In common with other Amazonian groups, the Ashéninka are most concerned with how to achieve a peaceful existence and ‘live well’. Unlike other groups, however, they believe that this is best achieved by living apart from each other, in autonomous households. Attempting to illustrate what this means in practical terms, my thesis notes the importance of social gatherings centred on the consumption of masato (manioc beer) in maintaining flexible links between disparate individuals and households. I argue that these gatherings, which are open to everyone (including strangers), provide the Ashéninka with a bounded and defined area in which general sociality can occur without infringing on individuals’ autonomy. Analysis, based on ethnographic descriptions from fieldwork, is related to wider theoretical debates centring on Amazonian notions of the person, society and relations of affinity and consanguinity. My thesis also seeks to understand how these ideas affect the way the Ashéninka interact with the rest of Peruvian national culture. It examines the Ashéninka’s reactions to the government’s promotion of formal education, land rights and officially recognised ‘Comunidades Nativas’ (‘Native Communities’). It also examines the reactions of Ashéninka to the timber industry and their contemporary and historical relationship with Christianity. Rather than examining the Ashéninka’s current situation in terms of ideas about ‘cultural change’ my thesis seeks to understand the intrinsic diversity and flexibility of Ashéninka sociality, and to apply this understanding to the manner in which members of this group are interacting with the non-Ashéninka world.

Legal theory has failed to fully explore the rhetorical in the judicial decision and, in doing so, has misunderstood the key role played by reasons that seek to legitimate and justify while expressing emotion and commitment. This thesis sets out to understand why legal theory has failed to do so and what role rhetoric plays in the judicial decision. Three legal theorists, Chaim Perelman, Bernard Jackson and Neil MacCormick are used to show that it is seeking to be philosophically acceptable that has led legal theorists to avoid the emotional and character-based aspects of the judicial decision. Two historical studies, of the Talmud and Aristotle's Ars Rhetorica, demonstrate that rhetoric can be seen as closely related to the limits of authority in the system and the character and identity of the decision-maker. These insights are then applied to the common law, exemplified by six cases from the law of negligence. This highlights the importance of the commitment of judges to their own sense of role and the way limitations on reasoning help to create this sense. The thesis concludes by considering the relationship between philosophy and judgement and argues that they can be seen as different forms of understanding and that there are strong ethical reasons for rejecting attempts to see either as a paradigm for all understanding.

This thesis has proposed a fourth model of contact between patient and doctor, that of innovation. The law fails to recognise this and therefore uses principles established in the context of a normal therapeutic doctor patient relationship to determine negligence in cases of innovation. Innovation in turn can take two forms, experimental or personal. The law treats experimentation as if it were normal therapy and is thus too benevolent towards experimenters. The courts currently accept the use of experimental treatment merely no the grounds that a responsible body of medical opinion supports its use. However, it has been argued that the law should change to require the experimenters to justify their actions. On the other hand, with respect to personal innovation and learning new techniques, the law of negligence is too harsh, taking no account of the need for doctors to learn and develop their skills, which is in the interests of future patients. Some suggestions have been proposed to overcome this. In summary, the benefit of recognising that innovation is a separate model of contact between doctor and patient is that it will be fairer to both parties. Two important issues have been raised. Firstly, the context in which the innovative treatment of either variety is administered needs to be taken into consideration by the courts. Standard laws of negligence, based on principles established when considering the normal doctor-patient relationship, do not take this into account. Secondly, the question of what information is disclosed to the patient regarding this innovation also needs to be considered. The doctor should inform the patient, either that the treatment proposed was experimental, or that he or she was inexperienced in the particular technique proposed. Primarily this should lead to better protection from risk for patients and allow them the choice of whether to proceed. However, it is also fairer to the doctor and provides better protection, as the patient cannot then claim that he or she was not fully informed and the realities of medical practice are respected.

In this thesis I analyse the concept of consent to medical treatment. I explore its ethical basis in autonomy and examine how other principles and ethical approaches might interact with the rules derived from autonomy. I then situate the relevant ethical obligations within the context f the healthcare professional-patient relationship which subsequently allows me to develop a textured model of consent. The model is predicated on the theory that consent is a secondary right, derivative on the underlying right which it controls. By giving or withholding consent, the autonomous person determines who may justifiably infringe the primary right. Importantly, however, the context of the professional-patent relationship highlights the relevance of consent, not just as permission, but also as agreement. I subsequently utilise the model of consent to analyse the current law, which is found to be deficient. I explore the conceptual difficulties of the split regulation between the torts of battery and negligence. I examine the current standard of disclosure and conclude that while it seems to be moving towards more autonomy respecting prudent patient standard, the courts may still be affording expert witnesses too much say in determining which risks should be disclosed. Most importantly I expose the thin and unsatisfactory conception of autonomy that appears to ground the current legal approach. Some of the common law’s deficiencies lie in tort law’s focus on the outcome rather than the process of the interaction between healthcare professional and the patient. There are three responses to these deficiencies. The common law could be allowed to continue its piecemeal development. The deficiencies of the common law could be patched up by developing professional regulation, or new legislation could be drafted to deal specifically with consent to medical treatment. If there is a genuine commitment to patient autonomy and patient centred care then I submit that legislation is justified.

No description available.

The international transfer of technology plays a critical role to developing countries. It enhances the economic development and welfare, in addition to reducing the gaps between developing and developed countries. The promotion of the international transfer of technology increases the capabilities of developing countries and assists them to gain more independency. Therefore, the central question that this thesis tries to answer is related to whether the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) fosters international transfer of technology to developing countries or not. Developing countries as per the TRIPS Agreement are requested to comply with minimum standards of intellectual property (IP) protection, since they are linked to international trade under the World Trade Organisation (WTO) regime. So, in order to have balanced rights and obligations, we have to evaluate whether the TRIPS Agreement is benefiting all parties and whether the transfer of technology is well-managed under the TRIPS Agreement. The terms and conditions of the TRIPS Agreement will be analysed using the doctrinal legal method. We find that the TRIPS provisions are still far from fostering the international transfer of technology to developing countries although the preamble and its principles and objectives under Articles 7 and 8 emphasize its importance. In addition to analysing the provisions related to transfer of technology under the United Nation Framework Convention on Climate Change (UNFCCC) through both the doctrinal legal method and empirical study on the transfer of environmental sound technologies under the Clean Development Mechanism (CDM) that was established in Kyoto Protocol adopted in 1997. We find that CDM works mainly for reducing the greenhouse gases (GHG) while the international transfer of technology is not an obligatory element of it. We reached a number of recommendation to improve the current situation and enhance more development in the field of international transfer of technology. At the beginning we need to define the international transfer of technology in the TRIPS Agreement. Lack of definition results in challenges and obstacles in the way we are evaluating its promotion. In addition, TRIPS Agreement is required to create a new mechanism, similar to the CDM, but particularly for the promotion of international transfer of technology.

This thesis argues that the international legal framework applicable to human trafficking is inadequate to address contemporary challenges. It also explains why and how human trafficking is a controversial phenomenon due to its complex nature, which is shaped by real-world incidences. Overall, this thesis stresses that human trafficking is real, and that survivors are human beings, who do matter. Drawing on international law, in order to capture the inadequacy of international legal framework, this thesis discusses the definition of human trafficking in comparison to the terms modern-day slavery and migrant smuggling, and considers obligations to protect, including identification and non- criminalisation of human trafficking victims. In the context of definitional analysis, this thesis not only looks at the international legal regulations pertaining to related phenomena, but also critically reviews international law to help address how human trafficking is defined and understood by the international community, including the media, scholars and international courts, alongside real-world incidents. The definition of human trafficking and obligations to protect are evidently interrelated; without defining human trafficking, identification of trafficking victims, as required by the obligations of protection, is not possible. In this respect, there are two main aspects in which international law does not adequately respond to human trafficking crimes: defining human trafficking and identifying its ‘victims’/survivors, as is explained in this thesis.

This thesis addresses the question of the implementation of the freedom of establishment (Article 49 Treaty on the Functioning of the European Union) in two EU member states with particular emphasis on impediments to the freedom. It is argued that despite a very long-standing and clear legal prohibition on restrictions to the freedom of establishment, there remain many practical obstacles which inhibit the right. This thesis’ hypothesis is that double taxation and double non-deductibility of losses constitute hurdles to a complete freedom of establishment. As far as the methodology is concerned the approach chosen to test the hypothesis is as follows: first to set out a theoretical framework based on the non-Discrimination principle, the basic principles of the freedom of establishment right and the exemptions to that right. Then, right of freedom of establishment is tested as against the practice in three ways, each considered in a chapter: the requirement of the nationality prerequisite; the double taxation of companies operating in more than one EU member state; and the practice of double non-deductibility of losses. The research is inspired by the case study of an author’s businesses, SMEs who trade cross-border in the United Kingdom (UK) and subsequently in Poland. From a study of the implementation practices of both the UK and Poland this thesis suggests that the following form serious restrictions: double taxation and non-deductibility of losses. Moreover, case law and existing literature identify taxation as a core impediment to the exercise of the freedom of establishment as taxation matters deter companies from relocating their whole business. This thesis examines how to balance the freedom of establishment and the tax powers of the EU member states. Taxation also plays a fundamental role in the development of the EU’s internal market. The thesis seeks a pragmatic solution which might be implemented effectively without resorting to substantial international harmonization.

This dissertation studies the theoretical turn in contemporary British public law scholarship with a view to understanding what is it that public lawyers do when they theorise their subject. The diversification and expansion of theoretical writings that has animated the theoretical turn was inspired by the belief that the atheoretical character of public law scholarship made it unsuited to address the contemporary problems of the field. From the critique of the ‘dismal’ performance of public lawyers came a call to scholars to embark on a search for the foundations of their subject. Most of those who answered this call understood the task to be undertaken as an inquiry into the principles or values that ground and give normative force to public law. In this sense, most approaches within contemporary British public law theory constitute a species of constructivism whose variations differ according to the theoretical resources that are employed (critical social theory, moral philosophy or political theory) and what is taken to be the normative centre of the field (the administrative process, judicial review or political accountability). Although constructivism has been dominant, it would be wrong to assume that all conceptions could be subsumed under that category. There are, I argue, two principal alternative approaches. One, called deconstructivism, contends that theory has a tendency to become estranged from practice because it fails to acknowledge constitutional change and overestimates the role of principles, creating the conditions for the unreflective reproduction of a number of ‘myths’ which have to be dispelled by uncovering the empirical foundations of the subject. The other, labelled reconstructivism, argues instead that the theorist cannot make sense of the field and its present predicaments without understanding the particular historical evolution of the subject which has been informed by competing traditions of thought. Against a widespread assumption, my contention is that these theoretical approaches are not only competitive but also complementary. Without denying that these conceptions are semantically and methodologically incommensurable, I show that this pluralised theoretical landscape represents a decisive enlargement of the understanding of the subject.