In articulating the juridical relationship between the individual and the state, a theory of public law must confront a fundamental problem. The practice of public law involves appeals to ideas of both authority and justice, but these ideas appear to be antagonistic rather than complementary. On the one hand, persons must act in conformity with legal obligations enacted through the contingent exercise of public authority. On the other, persons must act in conformity with timeless ideals of public justice. The theoretical puzzle at the core of public law stems from the incompatibility of these convictions. Because enacted laws are often unjust and just laws are rarely enacted, persons often find themselves simultaneously pulled in one direction by the demands of public authority and pulled in another by the demands of public justice. To escape this tension, the leading theories invariably fragment their subject matter by reducing the whole of public law to one of its aspects, authority in abstraction from justice or justice in abstraction from authority. The purpose of this project is to articulate a unified theory of public law that integrates the distinctive claims of authority and justice into a common framework. My central claim is that once authority and justice are appropriately conceived and justified, they are neither antithetical virtues of opposing theoretical frameworks nor isolated notions. Instead, authority and justice are the mutually implicating principles of a legal system: the right of rulers to exercise public authority is always accompanied by a duty to govern justly; the right of the ruled to just governance presupposes the presence of publicly authoritative institutions. By setting out the character and interrelation of the fundamental components of a legal system, the unified theory illuminates the general practice of public law from the legal systems of the ancient world to the inner workings of modern constitutional states.

In articulating the juridical relationship between the individual and the state, a theory of public law must confront a fundamental problem. The practice of public law involves appeals to ideas of both authority and justice, but these ideas appear to be antagonistic rather than complementary. On the one hand, persons must act in conformity with legal obligations enacted through the contingent exercise of public authority. On the other, persons must act in conformity with timeless ideals of public justice. The theoretical puzzle at the core of public law stems from the incompatibility of these convictions. Because enacted laws are often unjust and just laws are rarely enacted, persons often find themselves simultaneously pulled in one direction by the demands of public authority and pulled in another by the demands of public justice. To escape this tension, the leading theories invariably fragment their subject matter by reducing the whole of public law to one of its aspects, authority in abstraction from justice or justice in abstraction from authority. The purpose of this project is to articulate a unified theory of public law that integrates the distinctive claims of authority and justice into a common framework. My central claim is that once authority and justice are appropriately conceived and justified, they are neither antithetical virtues of opposing theoretical frameworks nor isolated notions. Instead, authority and justice are the mutually implicating principles of a legal system: the right of rulers to exercise public authority is always accompanied by a duty to govern justly; the right of the ruled to just governance presupposes the presence of publicly authoritative institutions. By setting out the character and interrelation of the fundamental components of a legal system, the unified theory illuminates the general practice of public law from the legal systems of the ancient world to the inner workings of modern constitutional states.

The starting assumption of this thesis is that to fully understand legal practices – including legal reasoning – we need to get a grasp of the complex body of knowledge into which they are immersed. Legal studies have often assumed that legal knowledge can be reduced to the knowledge of legal rules. This research departs from this perspective and argues for an understanding of legal knowledge that includes the complex set of conceptual, procedural and affective considerations which shape legal practices in general, and legal reasoning in particular. Herein we argue that not only legal knowledge is wider than the knowledge of rules, but that there are also some aspects of legal practice that cannot be properly addressed by explicitly drafted legal rules. We purport to build such an account upon epistemologically-informed comparative legal perspectives and insights of the cognitive sciences, by way of discussing a particular factual problem. The case to be studied in this thesis is the apparent loss of certainty in Mexican legal practice, when legal professionals engage in precedent-based reasoning. The situation, which was first reported in 2006, has remained broadly unexplored, and by default has been reputed as a problem concerning the set of explicit rules that regulate the system of legal precedents in that national context. We argue that the situation cannot be fully comprehended and remedied if we exclusively focus on the dimension of legal rules, but that it would be better understood if we direct our attention to the deeper knowledge structures in which that practice is immersed. This thesis builds a case for a broadened approach to legal knowledge by unveiling the historically built knowledge structures in which the Mexican understanding of precedents is embedded. As we shall see, this particular framework has acted as a deterrent to precedent-based reasoning, as accounted by a set of theories of law and legal reasoning. By focusing on the several processes of legal change and the collateral epistemic revisions that Mexican legal professionals seem to be experiencing for the past decades, this thesis argues that changing deeply embedded knowledge structures is a difficult task that needs to be supported by revising the processes of knowledge construction, and most importantly legal education.

Care ethics is primarily about responding to needs. Yet, surprisingly, attempts to apply the ethics of care in the domain of law have paid almost no attention to the concept of legal needs. This study fills that gap by systematically defining legal needs. It does this by revising current understandings of legal need through a unified conceptual framework for the philosophy of needs and a comparative analysis of legal action, and its major alternatives in dispute resolution and prevention. The conception of legal need that results is both more sensitive to preventative functions of the law and opens the door to a much wider range of policy options beyond legal aid. Legal needs are found to be a special case of institutional needs, i.e. needs that cannot be satisfied without an institution. I argue that the existence of institutional needs means institutions, rather than any particular actor within them, can be caregivers, but not all conceptions of the ethics of care are compatible with this kind of need. Joan Tronto’s conception of care is found to be the most accommodating and is used as a framework for a series of policy recommendations to move us towards a caring legal system.

This study addresses the extent to which feminist jurisprudence literature has developed the potential to initiate a legal paradigm shift leading to legal and consequent social change that would alleviate gender inequality. Drawing upon Kuhn's (1970) and Stacey and Thorne's (1985) arguments, I theorized that for a paradigm shift centered upon women and women's experiences to occur, feminist jurisprudence, particularly second- and third-phase feminist jurisprudence, needs to be incorporated into, and accepted by the mainstream. Through quantitative analysis I evaluated, first, the publication and citation patterns and the diffusion of feminist jurisprudence litearature as evidenced in articles published between the years 1983 and 1994 in legal journals assigned impact factors by the Social Science Citation Index. Second, using content analysis, I classified feminist jurisprudence articles published in the subfields of family and penal law --theorized to differ in degree of androcentrism-- according to the three phases of feminist jurisprudence theory. My quantitative analysis showed that the number of feminist jurisprudence articles published in mainstream legal journals is increasing over time. Further, feminist jurisprudence articles published in legal journals with higher impact factors tend to receive larger numbers of citations than articles published in journals with lower impact factors. Finally, although the overall impact factor of journals publishing feminist jurisprudence articles is declining, feminist jurisprudence literature is present among a wide spectrum of legal specializations. My qualitative analysis showed that there was an equivalent number of family and penal law articles which exhibited second- and third-phase characteristics. However, family law articles tended to cover a wider range of topics than penal law articles. Furthermore, family law scholars were more likely than penal law scholars to address issues of differences among women and feminists, thus, exhibiting third-phase characteristics. In constrast, penal law scholars tended to focus upon differences between feminists and non-feminists and the practical difficulties resulting from the structure, organization and practitioners of the criminal justice. Overall, my analysis showed that feminist jurisprudence appears to have developed the potential to initiate a paradigm shift within the legal discipline. However, in addition to feminist theorizing, feminist activism is important for the realization of legal and social changes that will alleviate gender inequality. / Ph. D.

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Conflict is an integral and necessary aspect of human societies. The challenge is not to prevent conflict or even to resolve it, but rather, to effectively manage it so that it does not paralyse people. Historically, Gitksan society managed conflict through their legal traditions and governance practices, and I argue that it is the undermining of this conflict management system that has generated the pervasive conflicts among the Gitksan people today. While it is not possible to attribute the current internal conflict experienced by the Gitksan to the major legal action of Delgamuukw (inclusive of the several decades of preparation, levels of litigation and court decisions, and political aftermath), it was, and arguably still is, a very powerful force and influence in the lives of the Gitksan people. The extensive present-day internal conflicts in Gitksan communities must be reflexively appreciated within the complex of power relationships between the Gitksan people and Canada, and between Gitksan law and Canadian law. In Canada and beyond, Delgamuukw and the Gitksan were (and still are) part of a much larger continuum of political, social, and economic change as well as local economic shifts involving natural resources. The Gitksan people’s legal traditions enabled them to effectively manage themselves in a complex, decentralized, non-state society. Gitksan oral histories and other records such as the songs, crests, kinship roles, and traditions contain implicit and explicit law both as content and in their architecture as cognitive units that enable the sorting of information and dynamic intellectual processes of legal reasoning by analogy and metaphor. Gitksan legal traditions include intentional and deliberative collective processes to change law over time, transform implicit law into explicit law, and create legal precedent and a formal memory archive. These legal traditions are integral to the Gitksan people’s ongoing political perseverance and are the basis for the enduring connections to their territories. Moreover, the legal traditions are part of the dynamic political and social change processes that enable the Gitksan to be Gitksan in the past as well as in the present – complete with all the contested, pragmatic, entangled, contemporary forms of Gitksan politics. A deeper, critical, and more complex appreciation of Gitksan legal traditions is necessary if they are to be practically useful to the Gitksan people in today’s world for application to today’s issues. I have taken the position that Gitksan conflict management processes must be grounded within a substantive and critical articulation of Gitksan laws and legal practices, legal order, and legal theory. I propose a Gitksan legal theory that derives from a substantive treatment of the legal order, laws, and law cases. I draw resources from both western and indigenous legal theorists to explore, describe, and analyse Gitksan legal traditions. My proposed Gitksan legal theory comprises a broad overview, general principles, normative principles, and general working principles. While my work is based on a number of Gitksan law cases, my theoretical approach may be extrapolated to other non-state, decentralized peoples.

Chapter 11 of the Property Agents and Motor Dealers Act 2000 (Qld) and the Retail Shop Leases Act 1994 (Qld) both introduce procedural requirements to the process for creation of land contracts and were both introduced to address a perceived lack of conscience in each of the industries affected. These represent a recent broadening of the ambit of consumer protection legislation in Queensland which deviates from more traditional methods of statutory intervention into land contracts. This paper focuses on the extent to which the Acts effectively introducing a conscience element into certain land contracts, and the extent to which this alters classical contract law. The effectiveness of the approach is then tested against the critiques of two alternative theories of law - law and economics and feminist contract theory - to see whether the legislative approach answers the deficiencies in contract identified within the terms of each theory.

O presente trabalho é resultado de uma pesquisa que teve como objetivo a investigação sobre o possível desenvolvimento de uma nova teoria jurídica nos trabalhos vinculados a Law and Economics. A hipótese testada ainda inclui a concepção de que essa Teoria Econômica do Direito teria a eficiência como seu fundamento moral, atribuindo ao Direito a função de maximização da utilidade, riqueza ou bem-estar sociais. Para tanto, apresenta descrição sobre a maneira pela qual modelos e conceitos econômicos foram transformados em instrumentos metodológicos usados para descrever e fazer prescrições a respeito do conteúdo das regras jurídicas e de sua aplicação. Este estudo ainda explora os mecanismos sociais de produção e aplicação do Direito, a fim de verificar como suas características podem limitar essa função maximizadora atribuída pela Análise Econômica do Direito. Por fim, investiga-se quais recursos teóricos e retóricos tomaram utilizável pelo Direito o conceito puramente econômico da eficiência e o transformaram em um valor moral a guiar decisões jurídicas ou políticas. O consenso é, então, perquirido como o fundamento último sobre o qual se assentam a eficiência e a maximização como valores morais. / This paper is a product of a research which aimed to study the potential development of a new legal theory within the paper works written by those authors usually associated with the Law and Economies School. The hypothesis tested established the existence of an Economic Legal Theory that would be morally based on efficiency concepts and that assigned to the legal rules a function related to the maximization of social utility, wealth and welfare. In order to accomplish this task, this paper presents a description of how economic models and concepts were turned into methodological instruments to describe and make prescriptions about the legal rules dispositions and their application. Further, the research explores the social structures assigned to enact legal rules and those responsible for their enforcement, in order to verify how their qualifications are able to promote within the social rules efforts the function prescribed by the Economic Analysis of Law. At last, this paper explores the theoretical and rhetoric instruments that made possible the use of the purely economic concept of efficiency into a moral value claimed as an ideal guide of political and legal decisions. The consent is, then, tested as the final basis on which efficiency and maximization as moral principles lay on.

In this dissertation I argue for the need to develop a Metis Critical Legal Theory, or “MetCrit”, a theory that is particular to the cultures, issues and concerns of Metis people. Suggestions towards the development of MetCrit are proposed in light of the difficulties of Metis rights claimants in British Columbia following creation of the “historic community connection” test in R v Powley, the leading case on the constitutional protection of Metis rights in Canada. Misconceptions about BC Metis history and about Metis communities generally have resulted in legal decisions that hold there are no historic Metis communities in BC, and thus no communities capable of meeting the Powley test. The BC situation reveals that Powley, as it is currently interpreted, cannot adequately deal with the realities of Metis history or with Metis conceptions of community, and that the community connection test itself is flawed. MetCrit is proposed as a possible lens through which to examine BC Metis rights cases in light of the historiography of the Metis of BC, and through which to critique the Powley court’s attempt to concretize Metis community identities. I suggest that MetCrit could provide spectrums of space for avoiding some of the dualities that are reflected in Canadian legal and historical accounts of Metis people and communities. / Graduate / 2020-04-19