Law and technology regularly conflict. The reasons for this are several and complex. Some conflicts are trivial and straightforwardly resolvable. Others, such as the creation of artificial minds, are not. History indicates that when law and technology conflict; both systems can adapt—often over periods of time—to new social circumstances and continue performing their societal functions. Simply: law and technology co-evolve. However, if the legal system is to retain its autonomous role in society, what are its adaptive limits in the context of profound, and perhaps unprecedented, technological changes? My thesis addresses the question of whether, and if so, to what extent, the legal system can respond to ‘conflicts’ with increasingly complex and legally problematic technological change. It draws on theories of legal and social evolution—particularly the Social Systems Theory (SST) of Niklas Luhmann—to explore the notion of a ‘lag’ in the legal system’s ability to respond to technological changes and ‘shocks’. It evaluates the claim that the legal system’s ‘lagged’ response to technological change is a deficit of its functioning. ‘Lag’ may be both good and bad. It allows the law to be self-referential while also limiting its effectiveness in controlling other sub-systems. Thus there is an implicit intersystemic trade-off. The hypothesis here: ‘lag’ is an endogenous legal advantage that helps to ensure the legal system’s autonomy, as well as the continuity of legal processes that help ameliorate potentially harmful or undesirable outcomes of science and technology on society and the individual. The legal system can adjust to technological change. However, it can only adjust its internal operations, which takes time and is constrained by the need to maintain legal autonomy—or in SST terms—sits autopoiesis. The signs of this adjustment are the conceptual evolution of legal concepts and processes related to new technological changes and risks, among other things. A close reading of Anglo-American legal history and jurisprudence supports this. While legal systems are comparatively inflexible in response to new technologies—due to doctrinal ossification and reliance upon precedent and analogy in legal reasoning—an alternative outcome is possible: the disintegration of the boundary between law and technology and the consequential loss of legal autonomy. The disintegration of this boundary would consequentially reduce society’s capacity to mediate and regulate technological change, thus diminishing the autopoiesis of the legal system. A change of this kind would be signalled by what some identify as the emergence of a technological ordering—or a ‘rule of technology’—displacing and potentially subsuming the rule of law. My thesis evaluates evidence for these two scenarios—the self-renewing capacity of the legal system, on the one hand, or its disintegration in response to technological change, on the other. These opposing scenarios are evaluated using a social ontological study of technology generally, and a case study using Artificial Intelligence (AI) specifically, to identify and predict the co- evolutionary dynamics of the law/technology relationship and assess the extent to which the legal system can shape, and be shaped by, technological change. In assessing this situation, this thesis explores the nature of AI, its benefits and drawbacks, and argues that its proliferation may require a corresponding shift in the fundamental mechanics of law. As AI standardises across industries and social sub-systems, centralised authorities such as government agencies, corporations, and indeed legal systems, may lose the ability to coordinate and regulate the activities of disparate persons through ex post regulatory means. Consequentially, there is a pressing need to understand not just how AI interfaces with existing legal frameworks, but how legal systems must pre-adapt to oncoming, and predominately unexplored, legal challenges. This thesis argues that AI is an autopoietic technology, and that there is thus a corresponding need to understand its intersystemic effects if there is to be an effective societal governance regime for it. This thesis demonstrates that SST provides us with the shared theoretical grammar to start and sustain this dialogue.

How does one lead a life of law, love and freedom? This inquiry has very deep roots in the Judeo-Christian tradition. Indeed, the divergent answers to this inquiry mark the transition from Judeo to Christian. This dissertation returns to those roots to trace the routes that these ideas have taken as they move from the sacred to the secular. The argument of this dissertation is threefold. First, it argues that the concepts of law, love and freedom are each internally polarized. Each concept contains, within itself, conflicting values. Paul's equivocation in his letters is a striking manifestation of this internal polarization. Second, it argues that, while values are many, my life is one. Hence, one needs to combine the plurality of values within a singular life. Values find their coherence within a form of life. There are, at least, two ways of leading a life of law, love and freedom: monastic versus antinomian. Third, it argues that the Reformation transformed these religious ideals into political ideologies. The monastic ideal is politically manifested as constitutionalism, and the antinomian ideal is politically manifested as anarchism. There are, at least, two ways of creating a polity of law, love and freedom: constitutional versus anarchic. To mount the threefold argument, the dissertation deploys a whole range of disciplinary tools. The dissertation draws on analytic jurisprudence in its analysis of law; ethics and aesthetics in its analysis of love; political philosophy in its analysis of freedom; biblical scholarship in its interpretation of Paul; the history of ideas in its study of the formation and transformation of these ideas; and moral philosophy in concluding how one could lead a life of law, love and freedom.

Geo-immersive technologies digitally map public space for the purposes of creating online maps that can be explored by anyone with an Internet connection. This thesis considers the implications of their growth and argues that if deployed on a wide enough scale they would pose a threat to the autonomy of Canadians. I therefore consider legal means of regulating their growth and operation, whilst still seeking to preserve them as an innovative tool. I first consider the possibility of bringing invasion of privacy actions against geo-immersive providers, but my analysis suggests that the jurisprudence relies on a reasonable expectation of privacy approach that makes it virtually impossible for claims to privacy in public to succeed. I conclude that this can be traced to an underlying philosophy that ties privacy rights to an idea of autonomy based on shielding the individual from the collective. I argue instead considering autonomy as relational can inform a dialectical approach to privacy that seeks to protect the ability of the individual to control their exposure in a way that can better account for privacy claims made in public. I suggest that while it is still challenging to craft a private law remedy based on such ideas, Canada’s data protection legislation may be a more suitable vehicle. I criticize the Canadian Privacy Commissioner’s current approach to geo-immersive technologies as inadequate, however, and instead propose an enhanced application of the substantive requirements under Schedule 1 of PIPEDA that is consistent with a relational approach to privacy. I suggest this would serve to adequately curtail the growth of geo-immersive technologies while preserving them as an innovative tool. I conclude that despite criticisms that privacy is an inadequate remedy for the harms of surveillance, in certain commercial contexts the fair information principles can, if implemented robustly, serve to regulate the collection of personal information at source in a fashion that greatly restricts the potential for those harms.

Geo-immersive technologies digitally map public space for the purposes of creating online maps that can be explored by anyone with an Internet connection. This thesis considers the implications of their growth and argues that if deployed on a wide enough scale they would pose a threat to the autonomy of Canadians. I therefore consider legal means of regulating their growth and operation, whilst still seeking to preserve them as an innovative tool. I first consider the possibility of bringing invasion of privacy actions against geo-immersive providers, but my analysis suggests that the jurisprudence relies on a reasonable expectation of privacy approach that makes it virtually impossible for claims to privacy in public to succeed. I conclude that this can be traced to an underlying philosophy that ties privacy rights to an idea of autonomy based on shielding the individual from the collective. I argue instead considering autonomy as relational can inform a dialectical approach to privacy that seeks to protect the ability of the individual to control their exposure in a way that can better account for privacy claims made in public. I suggest that while it is still challenging to craft a private law remedy based on such ideas, Canada’s data protection legislation may be a more suitable vehicle. I criticize the Canadian Privacy Commissioner’s current approach to geo-immersive technologies as inadequate, however, and instead propose an enhanced application of the substantive requirements under Schedule 1 of PIPEDA that is consistent with a relational approach to privacy. I suggest this would serve to adequately curtail the growth of geo-immersive technologies while preserving them as an innovative tool. I conclude that despite criticisms that privacy is an inadequate remedy for the harms of surveillance, in certain commercial contexts the fair information principles can, if implemented robustly, serve to regulate the collection of personal information at source in a fashion that greatly restricts the potential for those harms.

Rooted in legal theory and environmental studies, this thesis aims to (re)define the ‘population problem’ and related regulatory resolutions in constructive and clear terms, within a broad concept of 'law’. Green legal theory, wicked problem theory, and legal pluralism viewed from a wide-angle, first-person perspective, are applied together. To control birth rates and consumption demands in Canada/America, state-made laws are not central. We are ruled by rules: Certain law-like non-state rules aim to prod procreation and consumption ever-upward. Materially speaking, Can-American population numbers and consumption/waste form one inseparable factor relevant to global ecological degradation, and ‘legally’ speaking, specific religious doctrine amounts to 'population-UP control' and specific economic dogma 'consumption-UP control'. Together, these material and ‘legal’ factors form a wicked problem called ‘population demands.’ This problem formulation points away from state-made resolutions. Instead, the author recommends deconstructing degrading rules from the bottom-up and, in relation to consumption-UP control, reforming social norms. / Graduate / 0398 / 0768 / 0938

Many scholars have attempted to reframe our understanding of international law in order to re-establish the credibility of international norms in an age of widespread doubt about the power of law. This study seeks to contribute to this project by examining how the relationship between a specific understanding of modernity and the assumption that the modern state is the only proper location of politics enables a discipline built on idealized categories framing active agency in relation to modern politics. The consequence is not only a tightly circumscribed discipline that constantly reproduces particular understandings of the future potential of international law but also limits what we understand meaningful practices of international law to be. The specific example investigated is that of the Sami, the indigenous and transnationally nomadic people of Fennoscandia. Looking not only at how the Sami have made use of supranational avenues to challenge the sovereignty of the Swedish state (especially in the European Court of Human Rights) in the name of individual human rights, this case suggests that human rights are best understood as a political practice among other political practices rather than as a system of idealized, legal abstractions. The analysis works through a reading of international law as one of many modern political tools that may be used in order to engage political problems of modernity, just as, in other circumstances, we may think about political tools in terms of the possibilities of political contestation about the common interests of a society. One of the common assumptions shared by all the texts and writers under examination involves an understanding of modernity as a structured and ordered teleological process towards the realization of man’s enlightened freedom. Considering the limited possibilities exposed by such texts suggest that if we want to re-imagine what we take international law to be then we must begin with engaging alternative understandings of modernity; more precisely, we must acknowledge the heterogeneity of contemporary experiences. My exploration of the joint implications of the work of Marshall Berman and Dipesh Chakrabarty concludes with a call to avoid reductionist accounts of international law and to think about the modern world as a dynamic, ever-changing and always malleable place, a place in which human experiences continuously alter the political orders within which we operate. / Graduate / 0616 / mkoblanck@gmail.com

Common lawyers are notoriously suspicious of legal theory. This is exemplified by the dearth of theoretical content in Australian corporate law debate. If the first sin of legal theory is “to presume that it can offer a blueprint for actual decision-making and be a substitute for judicial and lawyerly wisdom”, then surely it is an equal transgression to profess that judicial and lawyerly wisdom can for long elude criticism without a sound theoretical basis. Reasoning by analogy is commonplace. This is as true in legal reasoning as in any other discipline. Indeed, it has been suggested that in the Australian legal context analogical reasoning is the very same “judicial and lawyerly wisdom” referred to above. In order to determine whether there is a true analogy, a number of legal scholars have suggested that a variety of potential known source analogues should be carefully analysed for their potential relevance to a less familiar target analogue lest an inapt analogy should lead one into error. The modern trading company is widely regarded as an apt source analogue for resolving jurisprudential issues involving incorporated associations and societies. However the basis upon which this assertion is made has never been adequately elucidated. This thesis tests the hypothesis that the modern trading company is the most apt source analogue for developing a jurisprudence of incorporated associations and societies. This is achieved using a theoretical approach drawn from corporate realist theory that is informed by an epidemiological investigation of incorporated sporting associations and societies in Australia and New Zealand.

In the 21st century Muslims can be found as minorities in what can be described as secular, democratic western countries. The research presented in this study will trace the process by which this community arrived in Western Europe and in particular Britain. Furthermore, it will explain how the community developed its faith identity within this context by detailing three particular stances they have adopted, namely; assimilation, isolation, integration. The thesis argues that rather than the assumption which exists that applying Traditional Islam causes Muslims to isolate from the indigenous population and form a 'state within a state' it actually gives the religious confidence and identity to integrate within the wider society. The study also focuses on Islamic Law as interpreted by the 'anaf' Law school and highlights in detail the multi-pronged and robust nature of its legal theory and subsequent application. There is an opportunity whilst determining the context to challenge the so-called 'classical' Islam's view of the world, especially the view that all non-Muslim lands are d'r al-'arb. The research details a novel understanding of the classical view and discusses how the state's attitude towards Islam and Muslims determines its territorial ruling. In conclusion, the study has shown that the traditional interpretive model inherently possesses the flexibility, relevance and applicability to take into consideration minority-status of Muslims in Britain adhering to the 'anaf' Law School. This is manifest by the ability this model has to deal with contemporary issues in wide ranging subjects like Medicine, Politics and Finance As a result it facilitates their integration within this secular society whilst remaining true to their faith.

This paper explores some of the main contributions developed bylegal theory in favour of social rights enforcement. The first part is devotedto the concept of subjective right and particularly to the conceptions due toRobert Alexy and Luigi Ferrajoli. The second part includes the analysis ofthe relationship between social rights and the principle of equality. Specialattention will be given to Luis Prieto’s theory. Finally, both post-positivisticand neo-constitutionalistic theories of Law will be evaluated in terms of theirdegree of recognition and defence of social rights. / En este trabajo se exponen algunas de las principales contribuciones de la teoría del Derecho a la exigibilidad de los derechos sociales. La primera parte está dedicada al concepto de derecho subjetivo y especialmente a las propuestas de Robert Alexy y Luigi Ferrajoli. En la segunda parte, se analiza la relación de los derechos sociales con el principio de igualdad y, más concretamente, la propuesta de Luis Prieto. Finalmente, se exploran las posibilidades que tanto la teoría pospositivista del Derecho como la neoconstitucionalista ofrecen para un mayor grado de reconocimiento y eficacia de los derechos sociales.

This thesis examines the practice of accommodating irregular migrant children in Canadian public schools, specifically, public schools in Toronto, Ontario. Estimates indicate that there are close to 500,000 irregular migrants in Canada; half are thought to be living in the City of Toronto. Since the early 1990s there have been several novel policy developments in Ontario that have facilitated access to public schooling for irregular migrant children. This project seeks to identify the normative ideas that have been appealed to by public authorities in the policy development process. First, a critical review is undertaken of theoretical justifications developed in moral and political theory for extending schooling rights to irregular migrant children in liberal states. Then, arguments put forward by public authorities in Canada for extending or limiting schooling rights are analysed and compared with the dominant normative frameworks in the theoretical literature. This research finds that public authorities at the sub-state level made use of normative arguments that fall outside common theoretical approaches in moral and political theory. Normative arguments at the sub-state level are found to cohere with a fiduciary conception of public authority. It is argued that fiduciary theory provides a systematic and innovative theoretical framework for understanding the normative ideas appealed to by public authorities in practice. Moreover, fiduciary theory makes available the normative resources necessary to provide a strong way of conceptualising the duty of public authorities to educate irregular migrant children. This research contributes both to theoretical scholarship aimed at understanding and conceptualizing obligations to irregular migrant children, and also to the field of Canadian Studies, by contextualizing the policy response to irregular migrant children in Canada over time, demonstrating how specific policy responses reflect shifting normative understandings about belonging, government obligation, national culture(s) of citizenship, and the scope of provision of social welfare services to irregular migrant children.