This thesis is concerned with jurisdictionally evasive European corporations in the Atlantic region. In the wake of renewed interest in trading companies in the historical literature on empires and colonies, this study explores the claims of corporations to foreign lands, the dispossession of pre-existing populations, and the emergence of legal conflicts out of these events and other related extra-European processes. To that end, this thesis engages with medieval legal and economic history, to explain the origin of the modern corporate form, the changing patterns of landholding and commerce across Europe, and the response of canonistic and civilian legal traditions to these developments. After emphasising the importance of the coastal region stretching from Lisboa to St. Petersburg, where trading companies thrived, each of the individual corporations involved in the colonisation of America is introduced. An intellectual history is then presented, covering relevant legal thought; here, the focus moves from patents and jurisdiction to the Roman law of property and in particular the idea of prescription, to contracts, and finally to war. These, I argue, are the ideological contexts most relevant in a legal history of corporations and early modern imperialism. The narrative which then follows is based upon primary research conducted in archives from across the globe. Here, special attention is given to English, French, Dutch, and Swedish corporate activity in the early modern ‘Atlantic World’ (1603-1673). Regionally, the main focus is drawn towards Ireland, North America, and South Africa, where corporations established their claims against other Europeans and against indigenous communities through a combination of separate means. Private law was more practical on the ground, while public law justifications tended to be more spurious and ambivalent, even if there was never a clean formula adoptable when it came to the acquisition of territory by European corporations away from Europe, and might was invariably right. This argument is presented before returning, finally, to the European context. The legal history of colonialism in the seventeenth-century Atlantic has never been presented so stringently from the corporate perspective for the purpose of contrast to the European diplomatic context; the result of such an approach is a new way to consider the origins of private international law in world history.

The contemporary conflation of pedophiles and child sex offenders is a prevalent aspect of reporting in news and social media, as well as in government-sponsored efforts to prevent child sexual victimization. Throughout twentieth century Canada, however, legal experts, psychologists and psychiatrists, and social activists were recognizing the harmfulness of grouping individuals who may have a propensity to commit crime with those who have committed the most heinous of criminal acts. As early as 1938, Canadian legal experts suggested that criminal insanity was a myth, advocating for a divergence between legal punishment and psychiatric healthcare, but after World War 2 had enacted serious efforts targeting criminal sexual psychopathy. Successive Royal Commissions investigating sexual victimization and child abuse revealed that Canadian courts, jails, prisons, and remand services were unable to solely deal with the realities of child sexual victimization. Psychologists and psychiatrists of the American Psychological Association increasingly researched sex and sexuality, classifying pedophilia as a paraphilia using child sexual victimization as a diagnostic indicator and criterion. Gay liberation activists discussed inequalities posed between hetero- and homosexual ages of consent and, more rarely, thought about the total abolition of age of consent. Each of these discourses firmly advocated for a separation between thought and action, recognizing the pedophiles who had not and would not harm children. The historical roots of the conflation of pedophiles and child sex offenders makes an important contribution to understanding contemporary discourses on criminality, victimology, sexology, and sociology, and to the development of efforts which can more successfully reduce child sexual victimization.

Britain’s Royal Navy of the nineteenth century was the unquestioned master of the world’s oceans, having won such standing after over a century of near-uninterrupted warfare. However, while the strategies, tactics and technology of the navy evolved dramatically during this period, the laws that governed its many thousands of sailors and officers remained virtually unchanged from the original 1661 Articles of War. Despite minor amendments throughout the eighteenth century and a major reworking in 1749, both capital and corporal punishments were frequently employed as punishment for minor offences in a system that made England’s “Bloody Code” look positively humane. The 1860 Naval Discipline Act provided the first substantive overhaul of the original Articles of War, but historians have generally lamented this act as providing little comprehensive change to the governance of the navy. Using statistical data collected from thousands of courts martial records, this thesis takes a broad look at trends in naval courts martial, studying how these courts interacted with the legislative changes of the 1860s. Viewing how charges and sentences changed on the global scale, it becomes clear that the “arbitrary and cruel punishments” of the previous century had at last given way to a centralized, formal expression of discipline. / Graduate / 2021-07-21

This dissertation is shaped by a concern with how the doctrine of Aboriginal and treaty rights in Canada can develop to meaningfully recognize Indigenous self-determination. A number of inherited concepts (e.g. law, sovereignty, state, jurisdiction, and territory) have constrained legal and political imaginations and supported a legal apparatus that confines Indigenous peoples to a subordinate place in the constitutional order. Drawing on scholarship on common law Aboriginal rights, legal pluralism, legal geography, legal history, and political theory, this work develops a novel legal and theoretical critique by historicizing the concepts courts have relied on in mediating Crown-Indigenous relations and demonstrating that the retrospective application of these concepts, which supports the subordination of Indigenous peoples in the present day, is empirically suspect. Using Canada’s Maritime provinces as an example, this is accomplished by describing in detail the legal pluralism that characterized the 17th and 18th centuries in the region, particularly how social and legal spaces were constituted by a plurality of legal and normative orders. By analyzing the territorial reach and subject matters of eight distinct legal systems that were operative in the region during this period, this work demonstrates that absolute jurisdiction through fixed territorial boundaries has never been an accurate way to describe Crown, or later state, authority in the region. Rather, the region’s legal spaces were constituted by a plurality of overlapping, entangled, and hybrid legalities that structured territorial jurisdiction in discrete and unique ways. This challenges Aboriginal rights doctrine that too often relies on unstated presuppositions about the effect of Crown assertions of sovereignty in retroactively applying conceptions of territorial jurisdiction that are tailored to meet the requirements of the contemporary nation-state and have the effect of minimizing Indigenous claims and supporting the unilateral authority of the state. The final chapter applies this legal-historical analysis to the present-day through an analysis of recent treaty fishing rights disputes in Mi’kma’ki/Nova Scotia. / Graduate

<p>This dissertation offers a critical analysis of the dominant philosophical theory of law today: Hartian positivism. The arguments proffered are not meant to strike at the underlying methodology of that account. Rather, they are intended to demonstrate that it performs sub-optimally with regard to its own jurisprudential aspirations. More specifically, this thesis contends that the Hartian position is unable to model the law in a way that captures the de facto terms of institutional governance, while also being able to give due theoretical credence to the normative structures and mechanisms that are widely deployed to regulate it. With this conclusion in hand, a new theory of law is suggested – one that seeks to stay true to the methods and aspirations of its predecessor, but which has been constructed so as to surpass its descriptive-explanatory capabilities. In this way, the following dissertation means to push analytic jurisprudence beyond the Hartian pale, and into new areas of theoretical discourse.</p> / Doctor of Philosophy (PhD)

[pt] A tese tem como hipótese a importância do realismo jurídico norteamericano para o desenvolvimento do ensino jurídico e das escolas de direito norte-americanas. Para isto três autores serão abordados: Wesley N. Hohfeld, Walter W. Cook e Karl N. Llewellyn. O primeiro capítulo trará uma introdução sobre as questões metodológicas do trabalho. O segundo capítulo fará uma digressão histórica no direito norte-americano para podermos compreender o contexto de surgimento do realismo jurídico. O terceiro capítulo abordará Wesley N. Hohfeld, sua importância para o surgimento do movimento realista e também sua contribuição para a evolução do ensino jurídico norte-americano. O quarto capítulo tratará de Walter W. Cook, sua teoria e sua experiência fracassada no Instituto para o Estudo de Direito de Johns Hopkins. O quinto capítulo tratará especificamente do surgimento do realismo jurídico através dos escritos de Karl N. Llewellyn e também de sua teoria das funções do direito. A crítica de Llewellyn ao ensino jurídico da época será ponto central do capítulo. O sexto capítulo demonstrará o porquê de o movimento realista ter sucumbido tão rápido, bem como abordará o seu legado. Finalmente a conclusão demonstrará as limitações do trabalho e suas principais contribuições. / [en] The thesis has as its main hypothesis the importance of American legal realism to the development of American Law Schools and legal education. In order to accomplish that, three authors will be faced: Wesley N. Hohfeld, Walter W. Cook e Karl N. Llewellyn. The first chapter will bring an introduction about the methodological issues of the present work. The second chapter will make a historical digression on the American law so that the reader can understand in which context American legal realism appeared. The third chapter will be about Wesley N. Hohfeld and his importance to the appearance of American legal realism and also his contribution to legal education. The fourth chapter will treat Walter W. Cook’s theory and his failure in the John’s Hopkins Institute. The fifth chapter will treat specifically about the appearance of the legal realism movement through Karl N. Llewellyn articles and his law-jobs theory. Also, his criticism about legal education at the time will be the core of this chapter. The sixth chapter will demonstrate why American legal realism was not successful in its attempt and why it didn’t last long. It also will demonstrate the important legacy left by the movement. Finally, the conclusion will demonstrate the thesis’s limitations and its main contributions.

This thesis presents an account of the development of Scots criminal law which concentrates on the influence of the Scottish moral tradition, as epitomised by Calvinist theological doctrine and Scottish Enlightenment moral philosophy. It argues that there are several crucial but seldom-acknowledged points of similarity between the Calvinist aim of creating a holy community and key tenets of eighteenth century Scottish moral thought, which rest upon community-oriented conceptions of the nature of morality and society. Both these shared conceptions and the particular ways they are expressed in Calvinist creed and Enlightenment philosophy are shown to have had a bearing on the way that Scots criminal law changed over time. The areas in which this influence is demonstrated are: the scope and principles of the law, i.e. the type of conduct that was punishable and the arguments that were put forward to justify its prohibition; the attribution of criminal responsibility (and non-responsibility); and the importance of mental state. It is argued that in each of these discrete areas changing perspectives on the nature of morality and human agency had a palpable impact on both legal doctrine and practice. When these different areas of the law are viewed as a whole and in historical perspective, the formative force of the Scottish moral tradition becomes clear and its influence can be seen to have extended into the contemporary law. The thesis therefore provides an original interpretation of the history of Scots criminal law by considering its sources and institutions from hitherto unexplored theological and moral perspectives, whilst simultaneously enhancing scholarly appreciation of certain aspects of the contemporary law that appear unusually moralistic. It also makes a broader contribution to socio-historic scholarship and strengthens its position as a recognised and worthwhile discipline by illustrating, using a concrete legal system, how legal history can enhance debates within criminal law theory and vice versa.

A formação territorial do Brasil foi marcada por duas grandes características: a grande extensão das propriedades e a indefinição quanto aos seus limites. Se em um primeiro momento a sua aquisição se dava por concessões feitas pela Coroa Portuguesa, ou pela simples ocupação, com o passar do tempo também surgiram vendas entre os próprios particulares. Com estas características, uma questão inevitável surge já no final do século XIX na doutrina e jurisprudência brasileiras: havendo divergência entre a área tratada e a efetivamente apurada, a quem cabe a responsabilidade? O primeiro problema é o do direito aplicável: Ordenações ou Direito Subsidiário? E, neste último caso, qual seria o direito? Os Códigos Civis de 1916 e de 2002 trouxeram em seu bojo artigos tratando especificamente da questão. Contudo, permaneceram dúvidas, em especial quanto à natureza da proteção concedida às partes chave de todo o sistema. O presente trabalho pretende demonstrar, com base em subsídios históricos, que a solução tradicionalmente adotada a cisão das vendas entre ad corpus e ad mensuram é inadequada, propondo um outro modo, resgatado do passado, de se compreender o tema. / The territorial evolution of Brazil is regarded by two important characteristics: the great extension of the land properties, and the unclear definition of its limits. At first, the acquisition of land occurred by concession of the Portuguese monarchy or simply by the territorial occupation. Later on, there would be a land trade between commoners. By the end of the nineteenth century, the characteristics of the land occupation bring about an unavoidable question to the legal thinkers and court decisions: who should be responsible in case of divergence between the contracted dimensions and the found dimensions ? The first problem regards the applicable law. Portuguese \"Ordenações do Reino\" or the \"Direito Subsidiário\"? And, on the latter case, what would be the solution? The Brazilian civil codes of 1916 and 2002 brought within articles regarding the question. Nevertheless, there is still uncertainty, especially concerning the nature of the legal protection given to the parts - the key of the whole system. The aim of the present work is to demonstrate that, based on the historical facts, the solution traditionally adopted - the division of the purchasing agreements, between ad corpus and ad mensuram selling - is inappropriate. In addition, the work proposes a distinctive way of understanding the topic, based on the past.

The purpose of this thesis is to identify the influence of the doctrines of the Medieval European Ius Commune on the Scots law of moveable succession in the crucial period of its development: from the Reformation to approximately 1700. To this purpose, this research is dealing with the Scottish writings, case law and archival materials, comparing them with the relevant Civilian and Canonistic texts and treatises of Medieval and Early Modern Continental authors. This research specially concentrates on particular fields within the Scots law of succession. In some fields, such as the constitution and form of testamentary deeds and the destinations (tailzies), the Ius Commune influence was quite weak, but even there it is discernible in specific issues. The same can be said of the Scottish attitude to the agreements on future succession (pacta successoria); in this respect, as my thesis shows, Scots law used to have more in common with the Civil law than it has now. On the other hand, the influence of the Continental doctrines was much more noticeable in the fields of the evidential force of last wills and the donations mortis causa. However, beginning from the 1660s, Scottish practice in these fields diverged from the Continental models. This was due to various practical reasons. The regulation of the office of executor in Scotland in the 1500-1700, in many respects, seems to be heavily inspired by the Ius Commune regulation and by English practice of that time. In some respects, Scots practice on the office of executor followed the Ius Commune rules more closely than English practice. In summary, the influence of the Ius Commune on the Scots law of succession in this period was real, due both to the retaining of tradition of ecclesiastical jurisdiction and to the knowledge of doctrine by the judges and litigants. However, this influence was often fragmentary and not properly expressed in the litigation and writings.

In 1870, physicians in United States were not licensed by the state or federal governments, but by 1900 almost every state and territory passed some form of medical licensing. Regular physicians originally promoted licensing laws as way to marginalize competing Homeopathic and Eclectic physicians, but eventually, elite Regular physicians worked with organized, educated Homeopathic and Eclectic physicians to lobby for medical licensing laws. Physicians knew that medical licensing was not particularly appealing to state legislatures. Therefore, physicians successfully packaged licensing laws with broader public health reforms to convince state legislatures that they were necessary. By tying medical licensing laws with public health measures, physicians also provided a strong legal basis for courts to find these laws constitutional. While courts were somewhat skeptical of licensing, judges ultimately found that licensing laws were a constitutional use of state police powers. The quasi-governmental organizations created by licensing laws used their legal authority to expand the scope of the practice of medicine and slowly sought to force all medical specialists to obtain medical licenses. By expanding the scope of the practice of medicine, physicians successfully seized control of most aspects of healthcare. These organizations also sought to eliminate any unlicensed medical competition by requiring all medical specialists to attend medical schools approved by state licensing boards. Ultimately, licensing laws and a growing understanding of medical science gradually merged the three largest competing medical sects and unified the practice of medicine under physicians. This dissertation includes previously published material. / 2016-06-17