"Montesquieu, in L'Esprit des Lois, 1748, divided the functions of state into: the legislative power, the executive power, and the power of judging. Indeed, three constitutional organs have invariably dominated state power. These are: the executive, the leigslative and the judiciary. According to Montesquieu, the state is said to be at 'equilibrium' when the three organs are independent of each other, with each carrying out its functions without interference. Ideally, the legislative organ ought to make laws, the executive to implement them, and the judiciary to adjudicate over disputes arising out of the day-to-day operations of the state. This attempt at dispersing state power is not arbitrary. It has got ends. One cardinal end in this regrad is the protection of fundamental human rights. It has been argued that where the three organs of state are allowed operatational autonomy, individuals stand to enjoy relatively profound liberty. Where state functions are entrusted with one person or organ, the tyranny of that person or organ is certain to overwhelm the realisation of fundamental freedoms and liberties. ... Both Montesquieu and Lock had tremendous faith in the tripartite government structure in so far as the protection of liberties was concerned. Informed by this philosophy, most democratic constitutions have weaved state power in almost similar terms envisioned by Montesquieu. Thus far, the 1787 Constitution of the United States of America (USA) could be ranked as one with the clearest distinction of state functions. Contemporary practice, however, appears to be in favour of complementing these traditional state organs, a sign, perhaps, that the conventional three organs of state per se have increasingly proved inadequate; at least in the sphere of human rights protection. There is a move, or rather, wave towards the establishment of independent national human rights institutions (NHRIs) to reinforce the bulwark of human rights protection mechanisms at state level, and the wave, arguably, is most pronounced in Africa. ... The current investigation will be completed in four distinct chapters. The current chapter serves well to introduce the study. The second chapter constitutes a comprehensive study of the conceptual foundations of national human rights institutions (NHRIs). The essence, structure and nature of NHRIs is also explored. The third chapter proposes to analyse the doctrine of separation of powers from a philosophical and later, from a practical point of view as it manifests itself in the Commonwealth tradition. The tripartite government configuration is discussed with the ramification of NHRIs in mind. It is instructive that without assessing the parent concept (the rule of law) a discussion on separation of powers remains orphaned. The fourth chapter shall first allude to the new challenges to human rights enforcement. It shall then discuss how these challenges and the development of NHRIs cry for a new thinking on the original tripartite system. The final section is an attempt at supplying a panacea to the challenges accentuated by the preceding part." -- Introduction. / Prepared under the supervision of Prof. Nii Ashie Kotey at the Faculty of Law, University of Ghana, Legon / LLM (Human Rights and Democratisation in Africa) -- University of Pretoria, 2006. / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM

An ethical understanding of responsibility should entail a richly qualitative comprehension of the links between embodied, unique individuals and their lived realities of behaviour. Criminal responsibility theory broadly adheres to ‘rational choice’ models of the moral self which subsume individuals’ emotionally embodied dimensions under the general direction of their rational will and abstracts their behaviour from corporeal reality. Linking individuals with their behaviour based only on such understandings of ‘rational choice’ and abstract descriptions of behaviour overlooks the phenomenological dimensions of that behaviour and thus its moral significance as a lived experience. To overcome this ethical shortcoming, engagement with the aesthetic as an alternative discourse can help articulate the ‘excessive’ nature of lived reality and its relationship with ‘orthodox’ knowledge; fittingly, the comics form involves interaction of rational, non-rational, linguistic, and non-linguistic dimensions, modelling the limits of conceptual thought in relation to complex reality. Rational choice is predicated upon a split between a contextually embedded self and an abstractly autonomous self. Analysis of the graphic novel Watchmen contends that prioritisation of rational autonomy over sensual experience is symptomatic of a ‘rational surface’ that turns away from the indeterminate ‘chaos’ of complex reality (the unstructured universe), instead maintaining the power of rational and linguistic concepts to order the world. This ‘rational surface’ is maintained by masking that which threatens its stability: the chaos of the infinite difference of living individuals. These epistemological foundations are reconfigured, via Watchmen, enabling engagement beyond the ‘rational surface’ by accepting the generative potential of this living chaos and calling for models of criminal identity that are ‘restless’, acknowledging the unique, shifting nature of individuals, and not tending towards ‘complete’ or stable concepts of the self-as-responsible. As part of the aesthetic methodology of this reconfiguration, a radical extension of legal theory’s analytical canon is developed.

This thesis inquires into the meaning of the right to security of person. This right is found in many international, regional and domestic human rights instruments. However, academic discourse reveals disagreement about the meaning of the right. The thesis first considers case law from the European Convention on Human Rights, the South African Bill of Rights and the Canadian Charter. The analysis shows that courts too disagree about the meaning of the right to security of person. The thesis then takes a theoretical approach to understanding the meaning of the right. It is argued that the concept of ‘security’ establishes that the right imposes both positive and negative duties but that ‘security’ does not determine which interests are protected by the right. For this, we need consider the meaning of the ‘person’. The notion of personhood as understood in the ‘capabilities approach’ of Amartya Sen and Martha Nussbaum is then introduced. It is suggested that this theory could be used to identify the interests protected by the right. Next, the theoretical developments are applied to the legal context in order to illustrate the variety of interests the right to security of person would protect and the type of duties it would impose. As a result, it is argued that the idea of ‘security of person’ is too broad to form the subject matter of an individual legal right. This raises a question over the relationship between security of person and human rights law. It is proposed that instead of recognising an individual legal right to security of person, human rights law as a whole could be seen as a mechanism to secure the person, the capabilities approach determining what it takes to fulfil a right and thereby secure the person.

Litigation in person is a widespread phenomenon in common law jurisdictions. A right to litigate in person is treated as a fundamental right, regardless of whether the litigant has the financial means to hire a lawyer or the capacity to conduct litigation effectively. Due to the high numbers of litigants in person and the various burdens placed on judicial resources by their lack of legal knowledge, they pose a serious challenge to the effective and efficient administration of justice. This thesis assesses the theoretical value of a right to self-representation, and challenges the position that courts should not impose legal representation on a litigant nor require him to obtain such representation as a condition for litigation. It argues that a litigant who lacks the professional knowledge and skills to present his case effectively cannot legitimately insist upon representing himself if in doing so he is likely to inflict disproportionate costs on his opponent and on the administration of justice. This thesis advances the case for mandatory representation in civil proceedings on three main fronts: a comparison with the criminal context, an assessment of the value of self-representation in terms of outcome, and an examination of its possible intrinsic justifications.

This thesis aims to provide a framework for analyzing the moral responsibilities of global agents in what I call the Global Health Crisis (GHC), with special attention devoted to the moral responsibilities of pharmaceutical companies. The main contribution of this thesis is to provide a general account of the moral responsibilities of different global players, mapping the different kinds of duties they have, their content and force, and their relation to the responsibilities of other relevant actors in the GHC. I also apply this account to current debates surrounding the need for reforms to the international legal rules addressing the GHC, notably the TRIPs regime. In doing so, this thesis will discuss the allocation of responsibilities for the GHC among different global players, such as state and non-state actors, the latter including pharmaceutical companies. In order to investigate the allocation of duties, I will first analyze the object of such allocation which constitutes the object of the current GHC (Part A); then the agents responsible for addressing this crisis (Part B); and finally, existing institutional alternatives to reform the international legal rules addressing the GHC, such as the TRIPs regime (Part C).

Made available in DSpace on 2016-04-26T20:21:38Z (GMT). No. of bitstreams: 1 Luciana Hsiao Tebaldi de Queiroz Barbosa.pdf: 968055 bytes, checksum: d2e2e0b42fc0b5138415c4f8eb77ff77 (MD5) Previous issue date: 2013-05-16 / Conselho Nacional de Desenvolvimento Científico e Tecnológico / This dissertation investigates the notion of justice embedded in the Arab-Islamic philosophy from the standpoint of the representational imagery provided in the One Thousand and One Nights (often known in English as the Arabian Nights). In so doing, this paper provides a comparative analysis of the ontological gnoseology of law and justice in the philosophical thinking of Western civilization and the Arab-Islamic culture to establish the dynamic character and autopoietic quality of the objects. The bibliographical research and the comparative method are of great importance on the research methodologies presented in this dissertation. The importance is justified by the fact that the Western civilization has a poor understanding of the islamic law and the concept of justice in Islam, and therefore this dissertation intends to contribute to a better understanding of such concepts. However, the study has an innovative trend, having as the core a prominent literary of Arab-Muslim culture which is the fantastic book One Thousand and One Nights. The value of justice is relative, since the presented hypothesis is answered by the autopoietic character of the Law and by consequence, of the justice. As a result, we can gather a better understanding of the context of the Arab-Muslim world, for greater tolerance among the people and exercising the gift of charity, the supreme manifestation of love, being able to contemplate a more peaceful and harmonious coexistence of human beings on earth / A presente dissertação tem por objetivos a intelecção da justiça no pensamento filosófico oriental árabe-muçulmano, sob o espectro do Livro das Mil e Uma Noites e a análise comparativa entre a ontognoseologia do direito e da justiça no pensamento jusfilosófico ocidental e na tradição oriental árabe-islâmica, buscando o caráter dinâmico e a poética dos objetos. A pesquisa bibliográfica e o método comparativo perfazem eminentes nas metodologias de pesquisa que instruem o presente trabalho. A importância justifica-se no fato de que o mundo ocidental pouco compreende o direito islâmico e o conceito de justiça no Islã, e por conseguinte, o presente trabalho pretende contribuir para uma melhor compreensão de tais conceitos. Contudo, o estudo possui um viés inovador, que é ter como cerne o expoente literário da cultura árabe-muçulmana que é o fantástico livro das Mil e Uma Noites. O valor da justiça é relativo, pois a hipótese aventada responde-se pelo caráter autopoiético do direito e por consequencia, da justiça. Como resultado, pode-se inferir uma melhor compreensão do contexto do mundo árabe-muçulmano, para uma maior tolerância entre os homens e o exercício do dom da caridade, a suprema manifestação do amor, tendo-se possibilidade de vislumbrar uma convivência harmônica e mais pacífica dos homens sob a face da terra

La notion d’obligation naturelle passe assez inaperçue en doctrine. Cette discrétion est due à un courant doctrinal issu au XXe siècle du positivisme juridique, qui a estimé qu’il n’y a pas de système rationnel de l’obligation naturelle en droit français. Un tel système existe pourtant. L’heure est donc à la restauration de la notion d’obligation naturelle, et avec elle, de celle de droit naturel. La tradition juridique française est par essence jusnaturaliste, de type humaniste, et l’obligation de droit naturel apparait être le fruit de cette longue tradition. La technique juridique qui lui est afférente est un point de conjonction entre le droit positif et le droit naturel à travers la matière fondamentale qu’est le droit des obligations. En découvrant un véritable système du droit naturel, le système de l’obligation naturelle tel qu’il se présente en droit français apparait tout naturellement. Il permet alors de comprendre et donc de résoudre bien des difficultés pratiques qui émergent dans la jurisprudence très abondante en la matière. / The notion of natural obligation is often overlooked in France. This is the result of a doctrinal trend from the last century, which, nourished by legal positivism, has concluded that there is no rational system of natural obligations in French Law. Such a system does exist nonetheless.The time has come to restore the notion of natural obligations and with it the notion of natural law. The French legal tradition is by essence jusnaturalist, of humanist type, and the system of natural obligations appears to be the fruit of this long tradition. The rules pertaining to this notion are a confluence of positive law and natural law through the fundamental field which is the law of obligations. Through the discovery of a true system of natural law, the system of natural obligations as it manifests itself in French law appears quite naturally. It enables us then to understand and resolve many practical difficulties arising in court cases.

In this research the difficult for the decision problem – a human right to death – is considered. The appeal to philosophical and existential aspects allowed to present a right phenomenon to death in a historical context of its origin and development, and also to define a place and a role of death in culture of mankind and in philosophy. The special attention is paid to research of a problem of death both in existential philosophy, and in the context of modern legal reality, in particular its role in category of somatic human rights. Research of a phenomenon of euthanasia, as main example of realization of the right to death, in its ethical and sociocultural aspects is conducted. Studying of a phenomenon of the right to death as subjective human right is inseparably linked with its free will, but also it demands the definition in the context of the relations of the person with the state as the citizen has to have a right to dispose of both own life, and death. / В данном исследовании рассматривается сложная для решения проблема – право человека на смерть. Обращение к философским и экзистенциальным аспектам позволило представить феномен права на смерть в историческом контексте его зарождения и развития, а также определить место и роль смерти в культуре человечества и в философии. Особое внимание уделяется исследованию проблемы смерти как в экзистенциальной философии, так и в контексте современной правовой реальности, в частности его роли в категории соматических прав человека. Проведено исследование феномена эвтаназии, как главного примера реализации права на смерть, в его этическом и социокультурном аспектах. Изучение феномена права на смерть как субъективного права человека неразрывно связано с его свободой воли, но также оно требует своего определения в контексте отношений человека с государством, так как у гражданина должно быть право распоряжаться как собственной жизнью, так и смертью.

<p>Canadian courts have struggled to develop a consistent and coherent approach for reviewing administrative decision-making. In particular, they have been unable to create a workable framework that will guide when the courts will show deference to administrative tribunal interpretations of law and when they will interfere with them, leading to a system of administrative law that is unpredictable and disorderly. This thesis develops a novel approach to administrative review centered on a conception of judicial due-deference that is correlated with a Razian account of legitimate authority. My argument is that administrative review is best understood as an exercise of inter-institutional decision-making in which diverse institutions within the meta-institution of government must work together to arrive at decisions that best secure government objectives. When reviewing courts recognize that administrative actors are better situated in particular circumstances to make decisions than the courts, they ought to show deference. On the other hand, when courts are better situated to handle these matters, deference is not to be shown. I begin in Part I by analyzing the history of Canadian administrative law jurisprudence through to the Supreme Court’s 2008 decision in <em>Dunsmuir</em>, highlighting the competing principles of the rule of law and democracy that animate the ‘Diceyan Dialectic’. In Part II, I articulate a complex theory of inter-institutional reasoning that demonstrates the important role of deference and authority in good government decision-making. In Part III, I apply this model to the circumstances of Canadian administrative review. I show how there are certain institutional strengths, as well as key limitations, with respect to how our superior courts can play a role in upholding the Rule of Law and democracy. Ultimately, I argue that the superior courts must pay attention to the unique institutional placement of administrative actors relative to them in order to discern if these non-curial actors possess greater authority and hence ought to be shown deference.</p> / Doctor of Philosophy (PhD)

Since the late 1980s, efforts made by the international community to deal with the complex and global problem of money laundering have stimulated the creation and definition of the so-called 'international crime of money laundering', which is included in various United Nations and Council of Europe international treaties, as well as European Union Directives. The Central purpose of this thesis is to investigate if the main goal of effectiveness in the adaptation of the international crime of money laundering at the domestic level, might undermine other values that international law is seeking to protect, namely the guarantee of due process and the adequate protection of human rights principles. Then, if the adoption of any element of the crime shows to be inconsistent with civil rights and guarantees, to propose how deficiencies could be remedied.