The scholarly consensus on the political foundations of independent constitutional review – that it invariably stems from electoral and inter-branch competition – has been weakened by recent empirical discoveries which demonstrated that constitutional courts in a number of authoritarian states are actually more activist than previously assumed. This dissertation examines this phenomenon using the case of Hong Kong, an authoritarian polity first under the sovereignty of Britain and then of China. It is widely believed that the competence of the Hong Kong Court of Final Appeal – a cosmopolitan common law final appellate court – to strike down legislative and executive acts, and its ability to induce the regime’s compliance with its rulings, is intrinsic to the Basic Law, just as it is in liberal democracies. Nevertheless, two interrelated anomalous phenomena – the Court’s repeated issuance of activist rulings with near-complete impunity, and the continuing forbearance of China’s foremost constitutional authority, the National People’s Congress Standing Committee (NPCSC), faced with the Court’s aggressive assertions – necessitates careful explanation. This dissertation proposes an explanatory Constitutional Investment Theory, which highlights the similarities between “investment” in constitutional review and investment in financial assets, to explain the activation, consolidation, and ascendancy of independent constitutional review in authoritarian settings. It shows how strong incentives to signal its ideological commitment to the “One Country, Two Systems” scheme, both internationally and domestically, first drove the NPCSC to acquiesce in the Court’s self-aggrandisement; how internal divisions within and external opposition to the Hong Kong regime have rendered retaliation a costly option; and how the Court’s strategic resolution of the Basic Law’s ambiguities has encouraged continuous political investment in its jurisdiction and autonomy. Altogether, these have contributed to the formation of a dynamic equilibrium of constitution control, under which the Court and the NPCSC dynamically developed their own jurisprudence within their respective bailiwicks.

This thesis examines the regulatory landscape relating to private orphanages, both foreign and domestically run, in China, and the formal and informal relationships between such homes and government which structure this space of order. Part A introduces the contextual factors shaping the gradual socialisation and privatisation of charitable activity generally, and the child welfare-specific social, economic and cultural dynamics influencing the emergence of private orphanages. Parts B and C set out the ethnographic findings of field-work examining the practical operations of private orphanages, and a theoretical analysis of the various interactions occurring with government orphanages, and local and central officials. It is shown that the ostensible government monopoly on institutional care of orphans, established in law and policy and consistent with the objective of maintaining tight control over civic organisations and religious-based and foreign-led activities, is belied by a proliferation of private orphanages emerging to address gaps in state welfare provision. This has led to the emergence of a delicate balance between top-down official discourse, rhetoric and law, and bottom-up pragmatic considerations. Further, the prima facie 'missing role' of the state in law, regulation and policy-making is contradicted in practice by evidence of a complexity of highly paternalistic state-orphanage relationships occurring beyond the normative framework of official laws and policies. Such extra-legal state-society interaction is characterised by informal, flexible and paternalistic negotiations with local officials, and mediated by structures of power and capacity. 'Law beyond government' and 'government beyond law' are central features of the multidimensional maintenance of this space of order, and point to several defining points of distinction of law as a cultural notion in the Chinese context, including a marked preoccupation with legitimacy over legality and paternalistic discipline and discretion over impartial adjudication.

The central argument of this work is that the level of aggression of judges sitting in vulnerable courts is a function of their attempt to protect the institutional security of such courts. I argue that in contexts characterised by a lack of a culture of judicial independence, by high levels of judicial delegitimisation, and a high level of public visibility of judicial affairs, judges will attempt to simultaneously construct public support and avoid political conflicts with the Government. As a result, judicial decisions are driven by judges’ calculations of both the public’s reaction and the Government’s reaction to their rulings. I claim the level of aggression of judges’ interventions will increase when the Government's tolerance to decisions against its preferences was is higher and the public appears to be more supportive. I empirically test this theory using the case of Argentine Supreme Court Justices between July 2004 and September 2010. The findings confirm the theoretical expectations according to which judges are simultaneously concerned with the construction of public support and the avoidance of conflicts with the Government. In addition, my study shows three relevant patterns in terms of judicial behaviour. First, the Justices increased their level of aggression by using different modes of involvement when the public appeared to be more supportive and the Government’s tolerance higher during the period under study. Second, the decreased level of aggression occurred by altering the features of the same remedy in response to the political conditions in which decisions were issued. Third, existing legal constraints prevented Justices from being more aggressive.

This thesis focuses on subnational corruption law enforcement in a new democracy: Indonesia. It seeks to understand temporal and spatial variation in corruption prosecutions in the post-Suharto era, and answer three core research questions: Why has the number of corruption cases steadily increased over the past twenty years? Why is there significant subnational variation in the investigation and prosecution of corruption? And why are some cases of local corruption investigated and prosecuted while others are ignored? The argument developed in the thesis consists of three inter-linked components: that corruption generates complex collective action problems for law enforcement; that ostensibly public law enforcement regimes in Indonesia are informally privatised public law enforcement regimes; and that, in the context of these hybrid regimes, the availability of resources and the formation of coalitions is critical to understanding when individuals and groups mobilise corruption laws at the subnational level. The project uses a mixed methods research strategy—combining qualitative case studies, formal game theoretic modelling, and quantitative regression analysis—to develop and provide evidence for the argument. The research strategy required twelve months of fieldwork in Indonesia. In total over one hundred interviews in Jakarta and Central Java were conducted, and a unique dataset of local corruption cases was coded for two additional provinces. The thesis's argument and methodological approach has implications for literature that spans the field of law and politics: the political economy of prosecution, theories of legal mobilisation, socio-legal studies, and studies of politics and power in contemporary Indonesia.

Made available in DSpace on 2016-04-29T14:16:27Z (GMT). No. of bitstreams: 1 Maria de Lourdes Bohrer Antonio.pdf: 2759433 bytes, checksum: f6b3553382a3276bb0418f40cedeb366 (MD5) Previous issue date: 2013-11-08 / Coordenação de Aperfeiçoamento de Pessoal de Nível Superior / This study aims at analyzing the affective family relationships between the parents of children/adolescent children in litigation phase and at learning the meaning of family mediation. Our main theoretical framework lies on the philosopher Spinoza and on the contemporaries Morin and Maturana. We conducted a quantitative study through which we located the insertion of Custody Petition and Regulatory Visits as the main demand of the Mediation Sector of Family and Probate Courts in the District of Santos, and we profiled the protagonists of those petitions, i.e., the claimants and the defendants, parents of the children/adolescent children. The research was limited to a three-year window (2008-2010). With the profile resulting from the quantitative study, we conducted a qualitative study. We have carried out semi-structured interviews with seven families as well as with five judges who referred users to our Mediation Sector. The qualitative research was analyzed using two axes: family affective relationships and family mediation. We understand that family relationships of parents in litigation is marked by the desire to love living with their children and by the realization of rights. Although this action is primarily a suffering for having been driven by a sad passion, litigation is a measure to cope with an ethical-political suffering. This action seeks harmony, even though it may seem otherwise. The judicial family mediation is a judiciary proposal which contributes to harmony be a path to meeting with a state of peace. Peace is power of life, happiness and freedom that are expressed in the material and spiritual conditions of human existence in society. The judicial family mediation is a work process performed by a qualified professional (or team) with his/her own interdisciplinary methodology, having an affective and ethical basis, so that two or more people who have family ties - whether by blood or not - and who are going through a litigation phase look for more responsible, autonomous and enforceable answers on the conflict. The qualified professional does that under the perspective of a culture of peace and human rights. We conclude that family relationships in litigation are configured in a contemporary expression of the social issue and that mediation is revealed as one of the most important tools for dealing with it as part of a policy. The social worker is a relevant subject in planning and implementing that policy / O objetivo geral do trabalho foi analisar as relações afetivas familiares entre pais de crianças e de adolescentes em situação de litígio e desvelar o sentido da mediação familiar. Nosso principal referencial teórico foi o filósofo Spinoza e os contemporâneos Morin e Maturana. Realizamos um estudo quantitativo, por meio do qual localizamos a inserção dos Pedidos de Guarda e Regulamentação de Visitas como a principal demanda do Setor de Mediação das Varas da Família e Sucessões da Comarca de Santos, bem como traçamos o perfil dos protagonistas desses pedidos: os requerentes e requeridos, pais das crianças/adolescentes. Delimitamos o universo nos anos de 2008 a 2010. Com o perfil decorrente do quantitativo, realizamos um estudo qualitativo. Efetuamos entrevistas semiestruturadas, com sete famílias e cinco juízas que encaminharam os usuários. A pesquisa qualitativa foi analisada por meio de dois eixos: as relações afetivas familiares e a mediação familiar. Compreendemos que as relações familiares dos pais em litígio está marcada pelo desejo de convivência amorosa com os filhos e pela efetivação de direitos. Ainda que esta ação seja inicialmente um padecimento, por ter sido movida por uma paixão triste, o litígio é uma medida para o enfrentamento de um sofrimento ético-político. Esta ação busca a concórdia, mesmo que possa parecer o contrário. A mediação familiar judicial é uma proposta do judiciário que colabora para a concórdia ser uma passagem para o encontro com um estado de paz. Paz é potência de vida, alegria e liberdade que se expressam nas condições materiais e espirituais da vivência humana em sociedade. A mediação familiar judicial é um processo de trabalho exercido por um profissional (ou uma equipe) qualificado, com uma metodologia própria e interdisciplinar de base afetiva e ética, para que duas ou mais pessoas que tenham laços familiares sejam eles consanguíneos ou não e que passam por uma situação de litígio busquem respostas mais responsáveis, autônomas e exequíveis sobre o conflito, tendo como perspectiva uma cultura da paz e dos direitos humanos. Concluímos que as relações familiares em litígio configuram-se em uma expressão contemporânea da questão social e que a mediação se revela um dos importantes instrumentos para o seu enfrentamento enquanto parte de uma política, sendo o assistente social sujeito relevante no planejamento e na execução desta política

This thesis presents a feminist genealogy of ideas concerned with male violence against women from the late nineteenth to the late twentieth century. The thesis has two components: the first examines feminist, psychotherapeutic and socio-legal literature, examining how knowledge about female victims of male violence has been constituted; the second analyses memory work conducted with two groups of women exploring personal meanings about victims and violence. Each chapter describes pivotal moments in the history of women and violence showing how seemingly disparate ideas emerged to become precursors of contemporary knowledge which have given rise to a range of institutional responses to violence. Late nineteenth-century feminists created new ways of speaking about violence against women, however, their ideas were incongruent with prevailing discourses of the era. The advent of Freudian thought also brought about a new language with which to talk about violence placing the victim of violence firmly under the therapeutic gaze. During the 1930s and 1940s the founders of victimology utilised Freud's work as evidence for their proposition that female victims were often complicit in their own victimisation. In the1970s feminists challenged victim blaming ideology and redefined violence as a social and political issue. Twentieth century psychotherapeutic discourses tended to position victims of violence within discourses of psychopathology. However, more recently survivors have been defined in terms of traumatisation, constituting alternative possibilities for subjectivity following victimisation. The memory work used in this study enabled a consideration of the relationship between discourse and women's understandings of violence. Although remnants of all the discourses could be found in the women's narratives, some resonating with more authority than others, no one discourse operated deterministically to totalise subjectivity. Rather, it is evident that identities associated with survival are complex, dynamic and fluid. The legacy of the discourses described in this thesis continues to be apparent in community attitudes, institutional responses to violence and survivors' concepts of self. This thesis considers the potential implications of these discourses for women's subjectivity.

The Variable Child concerns the legal decision-making process in unaccompanied child refugee applications, and the role that conceptions of childhood play in the process. I examine when particular types of knowledge are drawn upon by legal actors, as well as the effects of the claim-making practices that create meaning, or truth effects, in legal decision-making. I identify how legal actors exercise discretion by investigating how facts are constructed with different ideas about childrens competence, abilities and knowledge. The Unaccompanied Child Refugee Evidentiary and Procedure Guidelines, which governs legal decisions, has embedded within it various, sometimes competing, conceptions of the child and childhood. These multiple notions create considerable discretionary space for refugee officers to make decisions about individual cases. My examination of legal decisions reveals a strategic use of vulnerable and/or responsible conceptions of childhood. Another strategy used to establish facts in these cases is to exclude the cultural differences of childhood both these practices are accomplished through employing several different knowledge moves. Refugee officers invoke vulnerable and/or responsible constructions of childhood to displace the impact of other/alternative constructions of childhood, namely Chinese ideas of parental relations. This avoids the potential for legal decisions to set standards for similar cases in the future. Childhood studies have documented how different axes of scholarly inquiry produce different understandings, typologies, and knowledges of the child and childhood. What remains understudied is how competing knowledges of the child and childhood are applied, negotiated, and formalized in legal decision-making. My study investigates how power relations constitute particular constructions of childhood, and the consequences these relations have for childrens lives. Unlike examining childhood as contextual, I document how variable understandings of the child and childhood are constituted, institutionalized, and normalized through the law. My study examines the complexities of legal decision-making, a process that is often black-boxed. I also trace which conceptions of childhood are drawn upon to substantiate legal claims, and how a social context for the child and childhood emerges. By examining the relations of law in the context of children, my work contributes to the growing area of childhood studies and socio-legal practices.

No description available.

Background: Child sexual abuse is a global public health and human rights concern. Despite beinga crime in most countries, and with well-known physical and mental health consequences, the majority of sexual offences are not reported. Child sexual abuse is a maltreatment form characterized by contact or non-contact acts perpetrated by adults or older children toward younger children who have little power to resist. This thesis aims to understand the social context of child sexualabuse, and the perceived roles of parents, community, and key professionals in handling such incidents in urban Tanzania. Methods: A combination of qualitative and quantitative research designs were applied to four sub-studies performed in Temeke district, Dar es Salaam. Qualititative content analysis was conducted on 23 in-depth interviews to describe the perceptions of key professionals and their experiencesof handling cases of child sexual abuse, in addition, eight in-depth interviews with parents to capture their experiences of legal reporting of child sexual abuse incidents. Grounded theory was used to analyse 13 focus group discussions held with male and female community members to explore norm systems and community awareness related to child sexual abuse. Findings from these exploratory sub-studies paved the way for a school survey among 1359 students from 23 randomly selected secondary schools. Using descriptive statistics and multivariate regression analyses, prevalence, risk factors, and health consequences of child sexual abuse were estimated. Results: Lack of working tools and financial support were perceived as major problems among the key professionals. Corruption at community and institutional levels was seen as jeopardizing justice. Community passivity and lack of knowledge about laws regulating sexual offences were identifiedas additional challenges for conducting fair investigations. The community perspective illustrated that children’s rights were challenged by lack of agency. Community awareness about child sexual abuse was clear but there was also a lack of trust in that the healthcare and legal systems were capable of handling such cases. Myths and cultural beliefs justified abuse. Disclosure of abuse was threatened by fear of stigma and discrimination. Parental interviews identified four types of sexual abuse incidents. The type most strongly associated with a determination to seek justice was one with an innocent child. The youth who was forced into sex elicited feelings of parental betrayal. The consenting, curious youth created uncertainty in how to proceed, while the transactional sex youth evoked feelings of parental powerlessness. Shame and stigma, but also fear of perpetrator retaliation and breach of confidentiality, were seen as challenges for disclosure. The school survey showed that 28% (boys=30%, girls=26%) of the students were exposed to child sexual abuse, with boys more often affected than girls. Twenty-six per cent of boys and 19% of girls reported being forced to look at pornography. Forced sexual intercourse was experienced by 9.8% of boys and 8.7% of girls. Abuse increased with age and diminished self-rated health. Perpetrators were most often neighbours, teachers and peers. In contrast, survivor confidants were most often teachers, family members and friends. Most survivors did not want any action taken for the abuse. Proportions of students who perceived having fair/poor health increased with severity of abuse comparing the none-abused (7.0% and 6.3% of boys and girls respectively) with the ever abused (26% and 41% of boys and girls respectively) and those reporting penetrative sex (35% and 53% of boys and girls respectively). Likewise, suicidal ideation and attempts increased with severity of abuse when compared with those not abused. Conclusions and recommendations: Sexual abuse of children poses a devastating social, and public health challenge. In Tanzania neither the community nor the health or legal institutions are adequately prepared to handle these cases. Educating the community, economically empowering women and strengthening the medico-legal system are needed to increase the opportunity for human,legal and fair investigations and reactions. A national child protection system is needed to address the complexities of abuse at different levels and to safeguard the rights of children in Tanzania.

The issue of the Islamic headscarf has been in the centre of the political debate whether it fits into the Western culture or not. Several member-states in the European Union have issued laws and regulations that impose restrictions on wearing the Islamic headscarf in the public sphere. Even some EU courts have ruled such restrictions imposed by member-states. Recently, this issue has been discussed in the context of the occupational life. In a dispute before the European Court of Justice, the ban was considered as legitimate. In this research, I analyse the judgment from a socio-legal perspective and analyse the intersectional identity of Mrs. Achbita who is a party in the dispute, considering that she belongs to the social category of veiled working Muslim women.