The thesis engages with a dynamic discourse on the human rights approach to human trafficking. Building on the traditional doctrine of human rights, the thesis demonstrates that human trafficking is not a human rights violation, save for a state involvement in it, either directly or through a failure to observe its positive obligations imposed by the existent human rights. In situations that do engage human rights law, the thesis defends an argument that conceptually, human trafficking falls within a domain of the right to be free from slavery, servitude and forced labour. This argument is grounded in both a doctrinal and a conceptual analysis. In particular, the thesis conducts a unique conceptual and legal analysis of Article 4 of the European Convention of Human Rights offering an original interpretation of the concept of exploitation in the context of practices associated with trafficking and 'modern slavery'. This type of inquiry is missing in the existent scholarship. The thesis also conducts a detailed analysis of the jurisprudence of the European Court of Human Rights on positive obligations to protect vulnerable individuals arising out of 'absolute' rights. In addition to providing a complete analysis and classification of these positive obligations, the thesis draws attention to the important difference between the scope of the right and the scope of state responsibility in situations of private infringements of 'absolute' rights. Accordingly, the thesis demonstrates that whereas the prohibition contained in these rights is absolute for the state, positive obligations in situations of their infringements by private individuals are of a limited scope. The analysis of the jurisprudence of the Strasbourg Court is supplemented by a comprehensive discussion of the obligations established in the trafficking-specific instruments. The thesis explains how victim protection provisions contained in these instruments may inform human rights obligations, yet, it demonstrates that these do not represent such obligations on their own. This analysis provides a roadmap for practitioners and activists when arguing cases before the Strasbourg Court and domestically. In addition to this practical dimension, the thesis intends to provide an important contribution to the scholarship on human rights law, and on human trafficking specifically.

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Although both Canada and the United Kingdom had experienced terrorism prior to the attacks that occurred in the United States on September 11, 2001, Roach has argued that the events of that day ‘produced a horrible natural experiment that allows us to compare how international institutions and different countries responded’. Arguably, the most significant international response post-9/11 was the United Nations Security Council Resolution 1373, which set a 90-day deadline for states to implement measures in accordance with the Resolution. Despite the fact that both Canada and the United Kingdom already had in place extensive provisions to deal with terrorism, both countries responded swiftly and their legislative responses reflect the histories and legal, political and social cultures of each country. This thesis tests the hypothesis that national security remains a bastion of national sovereignty, despite the force of international legal instruments like UN Security Council Resolution 1373 and, as such, the evolution of counter-terrorism policies in different jurisdictions is best analyzed and understood as a product of local institutional structures and cultures. To test this hypothesis, this thesis engages in comparative analyses of legal and political structures and cultures within Canada and the United Kingdom. It analyses variations in the evolution of counter-terrorism policies in the two jurisdictions and explores the domestic reasons for them. In its analysis of security certificates and bail with recognizance/investigative hearings in Canada, and detention without trial, control orders and TPIMs in the UK, this thesis reveals how domestic structures and cultures, including the legal system, the relative stability of government, local human rights culture, and geopolitical relationships all influence how counter-terrorism measures evolve.

When the United States Supreme Court approved the reinstatement of the death penalty in the United States in 1976, it did so based on the promise of new safeguards against comparative excessiveness and relative disproportionality resulting from jury sentencing in capital cases. As Justice Stevens noted in 2008, one of these safeguards – meaningful appellate review of death sentences – is, in practice, non-existent. This thesis examines the use of this purported safeguard by the Ohio Supreme Court, in the form of comparative proportionality review, to determine the degree to which Ohio capital cases are ‘relatively proportionate’ in the time period after the state adopted life without parole as a sentencing option in 1996. Specifically, this thesis employs two approaches to identifying ‘similar’ cases – the overall aggravation approach (through logistic regression analysis) and the fact specific approach – and then compares each death sentence to its group of ‘similar’ cases to determine whether it is relatively proportionate, given the death sentencing ratio of its comparable group. After establishing that at least forty per cent of Ohio cases were relatively disproportionate, the thesis argues that Ohio’s current approach violates the requirements of the Eighth Amendment. In particular, the Court’s failure to examine cases sentenced to life as part of its proportionality review and its use of the precedent-seeking approach has the outcome of ignoring death sentences that are comparatively excessive. Finally, the thesis concludes by offering a normative model by which Ohio can improve its administration of comparative proportionality review. The thesis advocates the use of a ‘purposive’ approach, defining ‘similarity’ on the basis of the intended purpose of punishment, and suggesting that just deserts retribution provides the best approach for determining ‘similarity’.

The impressive growth of antidiscrimination law in liberal democracies in the past few decades belies the inadequacy of the normative bases on which it has been sought to be justified. Popular ideals such as rationality, equality and dignity have been unsuccessful in providing a coherent liberal framework for the fundamental aspects of the practice of antidiscrimination law. In this thesis, I have argued that a unified normative framework comprising autonomy and dignity-as-autonomy does a markedly better job of justifying the most fundamental aspects of these laws. The ideal of personal autonomy is understood here as a principle that seeks to guarantee an adequate range of valuable options to individuals. Dignity-as-autonomy is understood to be an expressive norm, which forbids certain persons from expressing contempt for the autonomy of another. These ideals have different forms: autonomy is a non-action-regarding principle, while dignity-as-autonomy is action-regarding. They are also distinct substantively: it is often possible to violate one of them without affecting the other. When these ideals make incompatible demands, I argue that those made by autonomy should prevail. Mandating positive action and reasonable accommodation on the one hand, and prohibiting indirect discrimination and harassment on the other, are essential features of a model of antidiscrimination law based on this framework. Further, under this framework, antidiscrimination law is not vulnerable to objections such as ‘levelling down’ and responds well to claims of discrimination on ‘intersectional grounds’. Furthermore, it is not essential to find an ‘appropriate comparator’ in order to prove discrimination. This model also explains when, and under what conditions, can some forms of discrimination be ‘justified’. Finally, on an autonomy-based model, antidiscrimination law is only one of several complementary tools that should be employed to protect and promote personal autonomy.

This thesis explores the roles played by implied constitutional principles in fundamental rights cases in the common law jurisdictions of Canada, Australia, the Commonwealth Caribbean, and the United Kingdom. The two principles selected for this research are the separation of powers and the rule of law, both of which are relied upon in courts in common law states. The thesis examines the types of cases in which such principles are used, the possible reasons for the appeal of these principles, and the functions that they play in fundamental rights adjudication. The thesis begins with a brief discussion of the applications of the rule of law and the separation of powers, outlining the content of these principles as applied by the courts. However, the bulk of the analysis throughout the thesis is concerned with a thematic study of the functions played by the principles. It is argued that the principles are used as interpretative aids, as independent grounds for invalidating legislation, and as gateways to comparative legal analysis. The thesis ends by showing the necessary preliminary work that must be undertaken in order to engage in a thorough normative analysis of the use of implied principles in rights adjudication. Throughout the thesis, several themes are identified as key to our understanding of the functions played by implied principles in the cases discussed. One such theme is legitimization, specifically the role the principles play in the attempt to legitimize arguments, state institutions (particularly the courts), and the state itself. The theme of institutional self-protection also arises; it is evident in the use of principles to protect the jurisdictional sphere of the courts. The analysis of the operation of implied constitutional principles also highlights the legacy of Empire and the deployment of traditional principles to signal the maintenance of democratic traditions and institutions.

The present DPhil research attempts to develop an appropriate method for the historiography of ideas by taking into consideration cultural, linguistic and socio-political limitations and obstacles to free thinking in a predominantly closed society like Qajar Iran. By applying such a method the study then investigates the history of the idea of freedom in Iran during one of the most important periods in the evolution of this concept. The research method is grounded in a hermeneutical interpretation of Collingwood's logic of question and answer. It also employs MacCallum's meta-theoretical frame of analysis which states that freedom is always of something (an agent or agents), from something (conditions), to do something (actions). Using this methodological framework, the research shows how most locutions about freedom uttered in the last century of the Qajar period were formed within the horizon of the question of decline and were somehow related to remedy such situations. It then explores how late Qajar interpretations of the three variables of freedom manifest themselves in the socio-political life of early 20th century Iran. During the first constitutional period (August 1906-June 1908), the major concern of the first majlis was to establish the rule of law. In legislating the constitution and its supplement, the majority of the majlis believed that the main obstacle to freedom was arbitrary rule. Therefore, they endeavoured to restrain the government’s illegal and arbitrary interferences in the people's freedom. However, they did not develop a rational criterion for identifying legitimate and justifiable legal interferences. During the second constitutional period (July 1909– February 1921), the main concern of the second majlis was to restrain chaos and to strengthen the central government in order to put an end to domestic insecurity and foreign threats. To rectify such a situation, the majlis empowered the government to interfere even in the freedoms guaranteed by the constitution. As a result, the situation began to turn from chaos towards arbitrary rule. The research also argues that in most of their interpretations of the aim of freedom, constitutionalists considered an action permissible only if it was compatible with public interest as well as the material and spiritual progress of individuals and society. Theoretically, the aim of freedom could not have been the doing of an action that harmed another person or violated his/her freedom. Furthermore, 'the right to be wrong,' even if it harmed no one, was never defended. Nonetheless, in practice, freedom turned into chaos and licence in both the first and in the second constitutional periods. Finally, this study investigates how the Iranian pioneers of the freedom-seeking movement responded to the question of the eligibility of the agent of freedom, and the question of the equality of agents in having freedom. Iranian society was taking its first steps in experiencing the rule of law and had a long way to go to rectify its discriminatory culture and to establish equal rights. In such conditions, accepting a set of equal fundamental rights for all Iranians should be considered a great achievement for the constitutional movement.

This thesis examines the rationale for religious liberty in England and Wales. Currently, United Kingdom religious liberty literature shows very little sustained interrogation of the topic. Authors are likely to assume religious liberty is, most notably, a species of personal autonomy. This fails to explain why we should care about religious liberty and deepens religion’s privatisation, its separation from politics or public life. Drawing from a theological sensibility known as Radical Orthodoxy (RO), this thesis criticises current assumptions and argues that religious liberty discourse should be re-envisioned. The Introduction and Chapter One explore the current problems facing religious liberty discourse and map rationales given by prominent authors. Chapter Two argues that the main problem is that current discourse is shaped by a secularisation narrative: the differentiation of religious and secular spheres. Chapter Three relates the RO argument that this differentiation is underpinned by three themes, all of which have theological components: the rise of secular order as the protection of individual rights; the invention of private religion in modernity; and the contemporary shift to 'authenticity' or diffuse individual experiences as the hallmark of religion. Chapter Four contends that these three themes are echoed in religious liberty discourse and jurisprudence, leaving us with the question of why religious liberty matters. Chapters Five and Six explore the RO-influenced alternative, in theory and with reference to common questions in religious liberty discourse: the relationship between an individual claimant and the group; the reality of plural religious traditions; and the tension between sexual orientation non-discrimination and religious liberty. On the RO-influenced account, religious liberty concerns, against sphere differentiation, a commitment to the flourishing of multiple groups contributing to desirable social ends, understood ultimately as participating in the life of 'charity', the love of God and of others. This encapsulates two themes, both rooted in the Christian tradition: judgement against politics (as reflected in the secular order), and transformation of society along social pluralist lines. These two themes, the thesis argues, better explain why religious liberty matters.

Univ., Diss.-2006--Köln, 2005.