Examining the case law of the ECJ reveals that the multilingual nature of the EU presents numerous problems, such as the relative rather than absolute equality of languages, and translation errors that lead to non-uniform law due to the impossibility of perfect translation. This directly limits the application of the legal certainty aspect of the Rule of Law, thus putting into question the EU’s democratic viability. Democracy is dependent on communication opportunity, something which the Union is lacking due to its multilingual nature. To solve these legitimacy problems created by the EU’s multilingual nature, it is necessary to understand the force of language as a concept in its own right. Western linguistic theory tells us that each language encodes a particular experience of the world and that its use might predispose its speakers to see the world according to the experience encoded in it. Not only this, but that language holds such power due to the significant role of a common language collective identity formation. In order to solve, or at least mitigate the democratic legitimacy issues which arise due to the EU’s multilingual nature, we must forge a European identity which is not dependant on the feature of a common language. Accepted beliefs and archetypes of identity are deconstructed and then reconstructed in a way which uses alternate features which allow for democratic participation without the precondition of a common language. Rather than trying to solve the language problem with a language solution (as has been done before), this thus provides new and original theoretical solutions to a practical language problem by suggesting that it can be overcome if we redefine our accepted notions of identity in the post-national sense and look at the problem through a wider lens.

The ‘principle of distinction’ is core to international humanitarian law, regulating who can and cannot be targeted in armed conflict. It states that combatants and those civilians ‘directly participating’ in hostilities may be targeted in attack, while non-combatants may not be. The law defines what it means to be a combatant and a civilian, and sets out what behaviour constitutes direct participation. The principle of distinction purports to be gender-neutral. However, closer examination reveals that international humanitarian law was based on a gendered view of conflict that envisaged men and women playing particular roles; men as fighters and women as victims of war. Problematically, this view often does not accord with the reality in ‘new wars’ today. Across the African continent women participate in armed groups. While sometimes women fight on the front lines, frequently, women contribute to armed movements in gender specific ways. Serving as fighters, cooks, porters and armed group ‘wives’, women often form the backbone of fighting groups, performing functions on which armed groups are highly reliant. The narrow framing of the principle of distinction means that many of the roles that women typically play in conflict are not recognised as ‘combatancy’ or ‘direct participation’ – even where women are actively engaged in armed movements. While this does provide more women with legal protection from attack, there are indirect negative consequences that flow from this. Using women’s participation in new wars in Africa as a study, this thesis critically examines the principle of distinction through a gendered lens, questioning the extent to which the principle serves to protect women in modern conflicts and how it fails them. By so doing, the thesis questions whether the principle of distinction is suitable to effectively regulate the conduct of hostilities in new wars.

This thesis examines the emergence of the concept of dangerous and severe personality disorder (DSPD) in England and Wales and its subsequent interactions with criminal justice and health policy, mental health law and the law of sentencing. It also presents a normative critique of the promise of rehabilitation as a limit on the preventive detention of offenders perceived to be dangerous and personality disordered. In the first part of the thesis it is argued that the DSPD initiative was a compromise between the objectives of the Home Office and Department of Health intended to provide a solution to the long-standing problems personality disordered offenders presented for the prison and secure hospital systems. The plans also sought to strike a “balance” between the recognised rights of the offender to liberty and the more contested and nebulous “right” of the public to protection against harm. In essence, the bargain struck meant that, in exchange for their detention to protect the public, dangerous offenders with severe personality disorders would be offered tailored treatments aimed at alleviating their personal distress and reducing the risks they posed to the public so that they could eventually be released. Problematically, however, the effectiveness of the treatments on offer in reducing risk has not yet been proven. In the second part of the thesis, it emerges that the domestic and European legal framework governing the DSPD group takes a similar approach to “balancing” competing rights. In the final analysis, however, the legal and policy framework prioritises the pursuit of public security over the rights of the offender and risk subjecting the latter to disproportionate punishment. In this context, it is argued that the promise of rehabilitation may be more accurately characterised as means of rendering the coercive practice of preventive detention more palatable for liberal governments than as a true safeguard against the violation of prisoners’ rights. Finally, some suggestions for a new normative framework that is more responsive to the risks of disproportionate punishment presented by the current system are put forward.

There are increasing numbers of defendants seeking to rely on the occurrence of sleepwalking or some other parasomnia in their defence to a criminal charge. Consequently this has become a matter for public concern, particularly in relation to sexual assaults committed after alcohol consumption. This study used ethnographic methods to understand how the expert witnesses assess the accused in these cases, and then present their evidence to the jury. It also looked at the two-way interactions between law and medical science, and the difficulties each field has with the other. Sleepwalking in particular is an under-researched condition, with the basic phenomenology not fully explored yet. The experts must often rely on professional experience and give opinions, rather than relying on solid scientific evidence. Juries rarely return the special verdict, and victims are left dissatisfied by the incredible nature of the defence. The law pertaining to automatism and insanity is complicated and out of step with medical science. The Law Commission has recently examined this tricky area of law and recommended reform. The study concludes that the standard of expert evidence is generally good, although further work is needed to examine the specifics of how opinion and test results are presented to the jury. A number of recommendations are made about the standard of admissibility, legal reform and future directions of research.

Over the past decades, trust in medicine has steadily declined. The purpose of this thesis is to present a definition of 'trust', which helps us (a) understand what trust means in medicine, (b) analyse whether and if so why we have reason to be concerned, and (c) explain why it has declined. In the absence of a coherent and comprehensive definition of 'trust', I propose a 'pattern-based definition' derived from a conceptual analysis of trust. On this account trust is a justified expectation of the truster regarding the trustworthiness (i.e. competence and commitment) of the trustee. It presupposes conditions of uncertainty and the conscious acceptance of the trust-inherent risk by the truster and leads to a feeling of betrayal in case of a breach of trust. This definition enables us to differentiate trust from related concepts (such as confidence and reliance), helps us understand the role of trust in the patient-physician-relationship, and explains the decline of trust as well as the instrumental and moral significance of trust. The decline of trust can be explained by physicians' loss of various types of authority (making trust appear unjustified) as well as changes of risk perception and risk acceptance (making trust appear irresponsible). Trust can be shown to be instrumentally useful (it offers advantages not compensated for by alternative strategies) and morally significant (illustrated by the feeling of betrayal caused by a breach of trust and underpinned by the concept of an 'obligation-ascription'). I conclude that this pattern-based account of trust (even though it may not be the only possible definition) is internally coherent and robust. Moreover, it has both discriminatory and explanatory power (i.e., it differentiates trust from related concepts and it helps to explain the decline of trust and the instrumental and moral value of trust).

Agency contracts differ from other contracts since they involve a triangular relationship among three parties: a principal, an agent and a contractor. This relationship is further divided into an internal relationship between the principal and the agent and two external relationships, one between the principal and the contractor, and the other between the agent and the contractor. Differences between various laws exist both in the substantive rules and the choice of law rules applicable to these relationships. This thesis addresses these choice of law problems, with reference to English law, the Rome I Regulation, the Hague Convention 1978, and the UAE Civil Code. With respect to agency contracts in internal law, there are important differences in the substantive rules adopted by different legal systems, particularly between those of civilian law and common law. These differences, in turn, have concequences in private international law. Moreover differences between various laws exist also in the choice of law rules applicable to these relationships. Thus this thesis addresses these choice of law problems in respect of the three agency relationships, with reference to English law, the Rome I Regulation, the Hague Convention 1978, and the UAE Civil Code. Since the UAE legislation does not contain any provision specifically addressing the question of which law governs the agency relationships, and the Rome I Regulation has excluded from its scope the question of whether an agent is able to bind a principal, this thesis endeavours to identify the best solution to the various choice of law problems which may arise in connection with the three agency relationships. In the final chapter the solutions identified are embodied in a draft bill, designed to amend the UAE Civil Code, as well as a draft proposal to add provisions to the Rome I Regulation.

The right to health is often seen as being in enduring ‘crisis.’ On the one hand, social rights supporters see the pervasiveness of unsatisfied health needs as evidence of widespread violations of the right. On the other hand, social rights sceptics see the resource-conditional nature of the right as reason for its unenforceability. As a result, there is no tangible sense of where along the line between promising everything and delivering nothing the obligation to fulfil the right to health sits. This thesis suggests, however, that the right to health can be rescued. But the rescuer will require multi-disciplinary tools. The contribution made by this thesis is the development of a methodological framework for measuring right to health compliance. The contribution is two-fold. Firstly, through a public health-devised measurement of avoidable mortality, the thesis provides a methodology for describing what type of health the right to health guarantees. And secondly, through an econometric estimation of efficiency, it provides a methodology for determining what level of this type of health the right guarantees for individuals under resource scarcity as well as for offering a signal with respect to the degree to which this standard is in fact being met. It is argued that compliance with the obligation to fulfil the right to health is a function of the duty-bearer’s ability and willingness to provide for health. The results suggest that not all unmet health needs signal a violation of the right to health. Some duty-bearers are doing as well as they can with the maximum resources available, notwithstanding the relatively low levels of health sometimes being achieved. At the same time, the results also reveal many instances where the actual level of health achieved falls well short of the level expected. But, on the basis of the willingness indicators used in this thesis, whether these shortfalls systematically characterise unwillingness is unclear. Instead, this question requires a more nuanced, qualitative, investigation. In the case of Brazil, the hypothesis of unwillingness appears to hold. The methodology can be used efficiently for signalling compliance.

This doctoral research critically analyses third party protection in the carriage of goods by sea. The author is motivated to evaluate the rationale behind the protection of third parties in the carriage of goods by sea in the light of a new theoretical framework. The research takes into account the fact that the carriage of goods by sea is presently part of the supply chain and third parties, together with the parties of the contract, form what the author calls a multilateral common enterprise. The existing literature in the area focuses on the legal framework of the topic but fails to consider the fact that third parties can and should be seen under a different light. This work is driven by the idea that such a topic must be tackled with a deeper understanding of the rationale and by adding modern theory to a long-established practice. Changing the perspective will provide the necessary scope to make the law more appropriate for present times. Thus far, third parties have been considered merely a risk for the parties to the contract of the carriage of goods by sea; this research contends that they are a factual part of it and should henceforth be treated as such. They should receive protection for what they represent in the shipping industry, not just for what the main parties to the contract choose to extend to them. The thesis analyses the legal framework of third party protection through the lens of the supply chain. No longer is the carriage of goods by sea an isolated part of the trade; it is fully integrated within it. To date, the law – contractually, internationally and domestically – has acknowledged this issue, but it has not addressed it in an appropriate manner regarding third party protection. The aim of this thesis is to do just that and, in doing so, to make a significant contribution in the field.

The fundamental aim of this doctoral thesis is to appraise the protection model critically against unfair contract terms in Kuwait and propose solutions for its reform. The thesis examines the Kuwaiti Civil Code (KCC) provisions that regulate unfair terms in the context of the standard form of contracts (i.e., adhesion) and relevant case law. It primarily seeks to address two main issues: (i) why the Kuwaiti control model for the protection against unfair terms has failed and (ii) how it can be reformed. It argues that the existing control model has failed considerably in providing adhering parties with an adequate level of protection for two reasons. First, the regulation of unfair terms in the context of adhesion contracts is fraught with ambiguities and legal lacunae that render it flawed and ineffective. Second, the courts’ restrictive interpretation of what constitutes an adhesion has limited the protection to only a few types of contracts. The thesis explores how the protection model can be overhauled and, where relevant, uses European Union Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts as a normative framework to offer proposals for law reform. To achieve this end, the thesis is divided into an introduction, five chapters, and a conclusion. It starts with a brief introduction, focusing mainly on the statement of the problem, motivation for the research, research objectives and methodology. Chapter one seeks to explore whether, in the light of the statutory deficiency, the general principles of contract law can be employed to counter unfair terms. The aim is to confirm the main hypothesis of the thesis and explain why legislative intervention is needed. Chapter two deals with the scope of protection and discusses the notion of adhesion contracts, their regulation in the KCC and how they have been interpreted by the courts. Chapter three explores the connotations of the concept of unfair terms and seeks to determine whether the ambiguous concept of contractual unfairness can be explained with reference to the theory of abuse of rights. Chapter four assesses the court’s role in disputes involving unfair terms. Chapter five highlights the need to introduce a parallel enforcement mechanism and suggests the establishment of a public body entrusted with the task of eliminating unfair terms from the market. The final segment of the study presents concluding remarks and suggests recommendations for law reform.

This thesis examines the ban on bar dancing in Mumbai and Maharashtra as an outcome of politics of gender and caste in a globalising India. By redeploying the historical erotic dancing in a globalising India, the dance bars emerged as the new market providing Bollywood-type entertainment with dance, music, and hospitality to the new consumer class. The Dance Bar market offered employment opportunities to poor women to earn a livelihood and proved to be an exceptional market where female labour was paid very well. By deploying their caste capital, i.e., the hereditary skills of dancing, drama and use of sexuality, the traditional dancing women occupied and ruled the dance bar market. To this extent, the bargirls may be viewed as a ‘performing caste’ continuing their hereditary caste occupations in a globalising capitalist market. However, while their relationship to the customer was defined through the market and they earned money, status and power through their occupation, the bargirls challenged, transformed and redefined the caste hierarchy by the use of ‘caste capital’. The demand for the ban on dancing in the bars came up through cultural discourses of protection of youth, family, Indian culture and the dignity of women, in which bargirls were projected as bad women earning too much money by cheating their customers and encouraging illegal activities in the dance bars. The ban diminished the freedom, earning potential and unique identity of the bar dancers, pushing them back into their original caste/class positionality. The legal ban can be studied as the effect of politics of caste and gender in Maharashtra intervening into the global market.