JUDGE-MADE LAW COMPARISON BETWEEN THE COURT OF JUSTICE OF THE EUROPEAN UNION AND THE SUPREME COURT OF THE UNITED STATES Keywords: judge-made law; the European Union; the Court of Justice of the European Union; the Supreme Court of the United States; judicialization of governance; Kelsenian court; European constitutional space; European constitution; normativity; constitutional pluralism; sovereignty; federalism; post-communist states; new Member States of the European Union. Standard page (that is 1800 characters per page) and word count (including footnotes; without the contents, bibliography and annexes): 327 standard pages; 82 795 words. The Ph.D. thesis offers a complex reconceptualization of the constitutional system in the European Union. The constitutional systems of the Member States have been substantially transformed during the 20th century. Meanwhile a new constitutional system functioning in the Member States alongside their own systems has emerged - the constitutional system of the European Union. These two fundamental changes are difficult to grasp through an existing theoretical framework. That is because the framework is based on a set of outdated concepts: (i) Rousseau's concept of volonté générale that forms the basis of the parliamentary supremacy in a constitutional system; (ii)...

Le statut contentieux du droit administratif souple est très hétérogène. Les actes non décisoires sont soumis par le juge à des régimes juridiques assez variés : tandis que les circulaires administratives demeurent généralement indifférentes du point de vue contentieux (inopposables, ininvocables, insusceptibles de recours direct), les directives administratives et les mesures préparatoires peuvent être utilement invoquées en justice, et sont contrôlées par le juge de manière incidente, par la voie de l’exception d’illégalité. S’y ajoutent les actes tels que les « recommandations de bonnes pratiques médicales », ou les « cahiers des clauses administratives générales applicables aux marchés publics » (CCAG), qui peuvent faire l’objet d’un recours direct. La complexité de ce paysage contentieux ne semble pourtant pas irréductible. Certaines des distinctions pratiquées par la jurisprudence actuelle paraissent injustifiées, ce qui permet d’envisager l’harmonisation - ou la simplification - du régime juridique appliqué aux catégories existantes d’actes non décisoires. Tel est l’objectif principal de la présente thèse. / The litigation status of soft administrative law is very heterogeneous. The non-decisive acts are submitted by the judge to quite varied legal regimes: while the administrative circulars remain generally indifferent from the point of view of litigation (unenforceable, inviolable, insusceptible of direct appeal), the administrative directives and the preparatory measures can be usefully brought before the courts, and are under the control of the judge incidentally, by way of the plea of illegality. In addition, there are acts such as "recommendations for good medical practice", or "general contract terms and conditions applicable to public procurement" (CCAG), which may be the subject of a direct appeal.The complexity of this contentious landscape does not seem irreducible. Some of the distinctions made in the current case law seem unjustified, which allows for the harmonization - or simplification - of the legal regime applied to existing categories of non-decisive acts. This is the main objective of this thesis.

La « norme facultative » n’est pas reconnue en droit. Pourtant, elle renvoie à un phénomène singulierauquel les juristes se trouvent de plus en plus confrontés. Celui-ci est porteur de normes non obligatoires, enmarge des instruments juridiques traditionnels. Ces normes ont en commun une mise en œuvre tributaired’un consentement préalable de leurs destinataires, ce qui signifie qu’elles sont laissées à leur libredisposition et qu’ils peuvent les utiliser entièrement ou seulement en partie, selon leur convenance.Facultatives, elles supposent la reconnaissance d’une normativité distincte de l’obligatoriété et del’impérativité. Elles tirent leur caractère normatif du fait qu’elles constituent à la fois des actes de langageayant force illocutoire et des modèles pour agir.En raison de leur originalité, leur intégration en droit est susceptible d’entraîner des bouleversementsdans la théorie des normes. En effet, la reconnaissance de la norme facultative conduit à s’interroger sur laplace du facultatif au sein des catégories de contenus normatifs. À côté des contenus normatifs classiquesconçus à partir de l’obligation, à savoir le prescriptif, le prohibitif et le permissif, le « facultatif » désigne unautre contenu normatif correspondant aux normes de faculté tournées vers le « normativement souhaitable ».Ces normes sont porteuses d’une faculté de choisir, autrement dit, une opportunité normative ouverte audestinataire et demandant à être saisie. Une fois qu’elles ont fait l’objet d’une adhésion, elles s’introduisentdans un « lien normatif». / The « voluntary norm » is not recognized in law. Yet, it refers to a peculiar phenomenon that juristshave increasingly to deal with. It is associated with noncompulsory norms, outside the traditional legal tools.These norms share a tributary implementation of a prior agreement from their recipients, which means theycan freely dispose of them and use them fully or partly, at their convenience.Being voluntary, the norms involve the recognition of a normativity distinct from the bindingnessand imperativity. They draw their standards-relative feature from the fact that they establish bothillocutionary speech acts and patterns to operate.As a result of their originality, their incorporation into law is likely to cause some changes in thetheory of norms. Indeed, the recognition of the voluntary norm leads to question the position of the voluntaryfeature within the categories of standards-relative contents. Besides the classical standards-relative contentsbuilt upon what is compulsory, that is the prescriptiveness, prohibitiveness and permissiveness, the“voluntaryness” refers to another standards-relative content which corresponds to the voluntary normsfocused on what is normatively desirable. These standards include the capacity of choice, in other words, astandards-relative opportunity opened to the recipient and asking to be seized. And once they obtain anadhesion, they get into a “standards-relative bond”.

Within the field of cinema studies, the question of visual representation is a fundamental pillar. An immense volume of theoretical work has been written on the subject, with various academic approaches such as feministic, postcolonial and gay/lesbian. Yet there is a large social group that seems to have been overlooked within the representational discourse: the elderly. This group of people appears to be a blind spot on the multicultural retina, too often neglected within the area of cultural studies. But as the baby boomer generation, who has always redefined the different stages of life (youth, adulthood, middle age), is entering old age, things are slowly changing. Utilizing a post-structural framework, this essay investigates the visual representation of elderly within the cinematic landscape of the western world. Since the subject is somewhat uncharted territory, a broad interdisciplinary approach is necessary where modern social gerontology meets the field of cinema studies. In a cultural context, social grouping based on age implies a distinct position versus the normative, compare to other types of minorities. Changes of sex, skin colour or sexual preference are uncommon, whereas changing age is the fate of every human being. The elderly as the “the Other” is thus every man’s future destiny. This rather unique position carries an immanent paradox since the only way to avoid the periphery in question is death. As a philosophical counterpoint to this rather dystopian outlook, Gilles Deleuze’s theory of becoming is brought into the discussion. The theoretical part of the essay ends with the ontology of age, a historical review of the field of gerontology and the concept of ageism. After a descriptive section, where contemporary examples of film and other media with old age as a main theme are identified, the analytical part of the essay ensues. With the French sociologist Pierre Bourdieu as a theoretical frame of reference, a close reading of the films Avalon (Axel Petersén, 2011), About Schmidt (Alexander Payne, 2002) and RED (Robert Schwentke, 2010) are performed, emphasising aging identity and imposed age-normative behaviour. The semiotics of the aged body is discussed through Jacques Lacans mirror stage and Julia Kristevas abject theory, exemplified by the works of Donigan Cumming. The final part of the essay concerns the great eternal questions within film philosophy: life, death, time and memory, which for the elderly are not merely philosophical concerns but rather notable existential realities. Using Deleuze as a philosophical toolbox, these grand topics are illuminated with examples from The Curious Case of Benjamin Button (David Fincher, 2008), Amour (Michael Haneke, 2012) and Ingmar Bergmans classical works, such as Smultronstället (1957), Saraband (2003) and Gycklarnas afton (1953).

This thesis considers Kant's departure from moral naturalism. In doing so, it explores the relationship between ethics, naturalism, normativity and freedom. Throughout this exploration, I build the case that Kant's ethics of autonomy allows us to make better sense of ethics than Hume's moral naturalism. Hume believes that morality is ultimately grounded in human nature. Kant finds this understanding of ethics limiting. He insists that we are free - we can critically reflect upon our nature and (to an extent) alter it accordingly. This freedom, I contend, renders the moral naturalist's appeal to nature lacking. Of course, a Kantian conception of freedom - some form of independence from the causal order - is fairly unpopular in contemporary circles. In particular, a commitment to naturalism casts doubt on such a notion of freedom. I argue with Kant that such a conception of freedom is essential to the conception of ourselves as rational agents. The critical turn, unlike naturalism, warrants this conception of freedom, accommodating the point of view of our rational agency. It thus allows Kant's ethics of autonomy to better grasp certain key elements of morality - normativity and our agency - than Hume's moral naturalism.

Isaiah Berlin maintains that there are two distinct forms of freedom or liberty: negative and positive. Berlin’s principal claim is that negative liberty does not require that the self be somehow separate from the empirical world (causally aloof, or an originator of causal chains). My principal claim is that to be an agent is to be committed to a separation of self in this sense, thus that the self for its very being requires to possess a species of positive liberty. This conception proceeds in part from Immanuel Kant’s claim that there is a separation between spontaneity and receptivity. Commitment to this assertion allows there to be an understood distinction between the self as a spontaneous self-active agent that makes choices, and the self as a mere reactionary brute that does what it does by biological imperatives. In this thesis, I defend the view that negative liberty is subsumed under positive liberty: you cannot have the former without the latter. I am therefore taking a rationalist stance towards Berlin’s thinking. My methodology is to bring into consideration two perspectives upon the underlying normative principles within the space of reason. The first is of Kant’s understanding of the principle of responsibility and the activity of spontaneity; the second is John McDowell’s understanding of that principle and activity. The key claim of this thesis is that Berlin misunderstands what it is to be a chooser. To be a chooser is to be raised under the idea that one is an efficient cause; human children are brought up being held responsible for their reasons for acting. This principle allows mere animal being to be raised into the space of reason, where we live out a second nature in terms of reason. Using their conclusions I further investigate Berlin’s understanding of conceptual frameworks, taking particular interest in historic ‘universal’ conceptions that shape human lives. He too finds that that we are choosers is necessary for what it is to be human. I take his conclusion, and suggest that if he had had a clear understanding of the space of reason, the historic claim that we have choice would find a more solid footing in the principle of that space, in that we are responsible for our actions. I conclude that the upshot of understanding the ‘I’ as an originating efficient cause is that we treat ourselves as free from a universal determinism that Berlin himself disparages; and that the cost to Berlin is that all choice is necessarily the activity of a higher choosing self. It is part of a Liberal society’s valuing, by their societal commitment to, the ideology of raising our children to understand themselves as choosers, that we have choice at all. This is irrespective of whether that which fetters choice is internal or external to the agent, or of whether having self-conscious itself requires such a cultural emergence of second nature.

The thesis offers new paradigms for advancing socio-economic rights in Africa. Many States Parties to human rights instruments have failed to promote the common welfare of their citizens partly because of the justiciability debate, which continues to complicate intellectual and practical efforts at advancing socio-economic rights. The debate also prevents the normative development of these rights through adjudication. Furthermore, traditional human rights theory and practice have been state-centric, with non-state actors largely ignored in the identification, formulation, and implementation of human rights norms. Yet, the involvement of non-state entities in international arena has limited states' autonomies considerably, with serious implications for human rights. Transnational Corporations (TNCs) have capacities to foster economic well-being, development, tenchnological improvement, and wealth, but they also often cause deleterious human rights impacts through thei employment practices, environmental policies, relationships with suppliers and consumers, interactions with governments, and other activities. The thesis argues that socio-economic rights are normative and justiciable. It argues that traditional approaches are no longer sufficient to secure human rights and calls for a dismantatling of some structures erected by doctrinal systems; for realignment of relationships among social institutions; and for integrated bundles of fundamental interests that harness benefits of human rights norms and widen the landscape to commit both formal and informal regimes. Fashioning out a new paradigm for advancement of socio-economic rights requires addressing state capacity. It requires an integrative and global interpretive framework. It requires, finally, a new paradigm to commit non-state actors in Africa. The illustrative chapter uses the rights to work and to social security as templates for some prescriptions towards reaslising socio-economic rights in Africa. / Jurisprudence / LL.D.

This thesis is not structured as a conventional empirical study (theoretical background, method, results, discussion), but instead consists of an iterative series of attempts at making sense of same-race prejudice – hopefully systematically homing in on a richer and more acute understanding of the phenomenon. The chapters are grouped together in pairs or triplets – each grouping addressing different but related perspectives on the problem. Chapters 1 and 2 are contextual, setting the scene historically and conceptually. Chapters 3, 4 and 5 introduce three different perspectives on using phenomenology as a means of approaching the issue of same-race prejudice. Chapters 6 and 7 are dedicated to looking at the themes of same-race prejudice, a critical interrogation of the themes from the interview discussions, the literature and how same-race prejudice is experienced, played out and sustained. Chapter 8 links back to Chapter 1 by casting another look at sensitivity and responsiveness to same-race prejudice by organisations whose work is supposedly on prejudice eradication. The chapter further links with both Chapters 3 and 4 by calling upon a phenomenological understanding to humanity as what can bring a liveable change to humanity regarding same-race prejudice. Chapter 9 serves as a summary of all the chapters, what each individually and collectively hoped to achieve, and the general findings and statements about same-race prejudice from the chapters’ theoretical discussions, research interviews, and critical interrogation of both the mundane and theoretical understanding. / Psychology / D. Phil. (Psychology)

Text in English / The ‘doing’ of gender in our society is constructed along the lines of power, knowledge and being. Power structures angle knowledge and understanding of transgender people and transgender lives in a way that relegates them almost to the museum to be observed as a spectacle or exotic objects. The emphatic frames of man and woman, even in South Africa where the Constitution is considered and understood to be liberal and generous, the life of a transgender body is an Other life. One is either male or female; any other form of doing and being gender suffers peripherisation and classification as special, different, strange or any other exteriorising definitions. This dissertation attempts to question the power or the tyranny of categorisations and classifications of man and woman, drawing from various discourses such as the medico-legal discourse classification. It further looks at how gender is being performed by transgender people. Further it aimed at gaining an in-depth understanding of the experiences and challenges of transgender people with regards to doing gender within a gendered society. The findings within the dissertation tells us, that the performativity of gender is not a neutral space, but enacted by various power structures and those who live outside the norms such as the transgender people, they are subjected to precariousness. It this dissertation seeks to contribute to an unmasking of some easy but harmful assumptions about gender and sexuality. Gender and sexuality may not be taken for granted and assumed according to fixed templates but they are fluid, mobile and flexible beyond the limits of convention. / Psychology / M.A. (Psychology (Research Consultation))

[pt] A finalidade desta tese sobre o poder de polícia fiscal fazendário é propor um método de trabalho para a administração fazendária federal que atenda aos requisitos de legitimidade de suas decisões nos procedimentos fiscais, à vista das novas tarefas do estado constitucional contemporâneo brasileiro, fixadas pela CF88 no modelo de tributação estatal, o qual alterou o sistema de lançamento tributário federal. / [en] This thesis about fiscal taxation proceedings has the purpose to offer a work methodic for the brazilian federal tax administration, to attend legitimation requirements for taxation proceedings and the new state tasks fixed for the taxation in the brazilian constitution, that has changed the federal taxation system.