This thesis is a microhistorical investigation of the dynamics of control and resistance in Pollsmoor Prison and Valkenberg Psychiatric Hospital’s Maximum Security section from 1964 to 1994 in South Africa. It examines the evolution of daily life inside these institutions, both situated in the Western Cape, and the extent to which these institutions were part of the security apparatus developed by the apartheid state. The permeability of Pollsmoor and Valkenberg shed light on the connections between repression, resistance, collaboration and survival inside and outside closed institutions. The division of incarcerated populations according to race, gender, age and behaviour reflected wider logics of governance of the South African society. Similarly, the modalities of resistance and collaboration adopted by ‘political’, ‘common law’ and ‘insane’ prisoners on the inside echoed the processes of popular mobilisation on the outside. The construction of a ‘healthy nation’ through the production and control of deviances was hence far from being a smooth process. The thesis is divided into three parts, each composed of three chapters. The first part analyses the way a system of law and order, based on delineation, the bestowal of privileges and violent repression, was imposed in prisons and psychiatric hospitals’ Maximum Security sections and how this evolved according to the changing social and political imperatives of the apartheid state. The second part shifts the gaze to the level of the courts, where psychiatric and criminological discourses became increasingly entangled throughout the period. The operating modalities of the judicial system reflected the fears and expectatives of the white minority, while providing a racialised image of black populations as both dangerous and childlike. Finally, the third part analyses the links between outside and inside resistances and adaptations to the regime of apartheid. It focuses on the 1994 prison revolts as prisms to understand the processes of subjectivation and politicisation which had emerged in closed institutions during apartheid.

This thesis explores the roles played by implied constitutional principles in fundamental rights cases in the common law jurisdictions of Canada, Australia, the Commonwealth Caribbean, and the United Kingdom. The two principles selected for this research are the separation of powers and the rule of law, both of which are relied upon in courts in common law states. The thesis examines the types of cases in which such principles are used, the possible reasons for the appeal of these principles, and the functions that they play in fundamental rights adjudication. The thesis begins with a brief discussion of the applications of the rule of law and the separation of powers, outlining the content of these principles as applied by the courts. However, the bulk of the analysis throughout the thesis is concerned with a thematic study of the functions played by the principles. It is argued that the principles are used as interpretative aids, as independent grounds for invalidating legislation, and as gateways to comparative legal analysis. The thesis ends by showing the necessary preliminary work that must be undertaken in order to engage in a thorough normative analysis of the use of implied principles in rights adjudication. Throughout the thesis, several themes are identified as key to our understanding of the functions played by implied principles in the cases discussed. One such theme is legitimization, specifically the role the principles play in the attempt to legitimize arguments, state institutions (particularly the courts), and the state itself. The theme of institutional self-protection also arises; it is evident in the use of principles to protect the jurisdictional sphere of the courts. The analysis of the operation of implied constitutional principles also highlights the legacy of Empire and the deployment of traditional principles to signal the maintenance of democratic traditions and institutions.

This study examines current domestic provisions and their extent of departure from English common law principles. The purpose of this study is to discover whether differences among state domestic codes are associated with differences among demographic characteristics. If such associations do exist, then some conclusion might be made regarding the feasibility of a national, uniform domestic code. This study examines current domestic provisions and their extent of departure from English common law principles. The purpose of this study is to discover whether differences among state domestic codes are associated with differences among demographic characteristics. If such associations do exist, then some conclusion might be made regarding the feasibility of a national, uniform domestic code.

O controle judicial de constitucionalidade moderno nasceu nos Estados Unidos, a partir da decisão do caso Marbury v. Madison, em 1803. Desde então pode-se dizer que as atenções do meio acadêmico jurídico, especialmente no campo do direito contitucional, foram progressivamente voltando-se a essa prática, com vistas a melhor compreendê-la. A partir da segunda metade do século XX, o controle de constitucionalidade foi amplamente difundido e hoje está presente na grande maioria dos países democráticos. Mais recentemente, os debates sobre o tema convergiram para os excessos cometidos pelos órgãos incumbidos, em cada Estado, da tarefa de revisar a constitucionalidade da legislação. Foram colocados no centro das discussões não apenas o modo por meio do qual os órgãos de controle atuam, especialmente o Poder Judiciário, mas também a própria legitimidade do exercício dessa função, tendo em vista as tensões existentes entre o controle de constitucionalidade das leis por órgãos não representativos e os princípios democrático e do Estado de Direito. Dessa forma, a tese inicia-se buscando compreender as origens do judicial review na tradição do common law inglês; em seguida, procura desvendar como a tradição do direito inglês foi incorporada aos Estados Unidos e compatibilizada à sua constituição escrita; passa, então, a descrever as dificuldades que os autores modernos encontraram para justificar o exercício do controle judicial de constitucionalidade, tendo em vista a dificuldade contramajoritária que enfrenta; expõe, assim, algumas críticas ao que se convencionou chamar de supremacia judicial, tese que afirma competir ao Poder Judiciário proferir a última palavra sobre o significado da Constituição; e, por fim, reinserindo o debate no plano do constitucionalismo político, a tese explicita a noção de diálogo institucional e tenta imaginar os papéis institucionais que Cortes e Parlamentos exercem ou devem exercer nesse debate, com foco especialmente no Brasil e na relação entre o Supremo Tribunal Federal e o Congresso Nacional relativamente à interpretação da Constituição. / This thesis focuses on the problems of the contemporary constitutional review in Brazil. It is widely recognised that constitutional review was established in 1803 with the landmark case Marbury v Madison. By the second half of the 20th century some form of constitutional review had been adopted by most western democracies. More recently the excesses of such a form of control of the legislative function have shifted the experts attention to the phenomenon of judicial supremacy. Because it is most frequently performed by unelected officials, the procedures of judicial review have been put under scrutiny and its very legitimacy has been questioned. This tension between the majoritarian principle and the judicial function of constitutional review became known as the counter-majoritarian difficulty. Although our main focus is on the Brazilian constitutional review, we start by going back to the beginnings of the judicial review within the common law tradition in order to understand the primitive structure of this function. Then we move on to its transplantation into American legal practice, which uses a written constitution as a basis for the judicial review. Next, we examine some of the contemporary uses of constitutional review, as depicted by its critics. Finally, we analyse the relations between the Supreme Court and the National Congress of Brazil in performing judicial review. We argue that in order to overcome the counter-majoritarian difficulty, we must accept this constitutional function as a political one, which means moving beyond its judicial features and including other institutions, such as the Congress, in the process of judging whether or not statutes should be invalidated when they breach the constitution. We call this widening of the range of institutions capable of participating in the constitutional review institutional dialogue.

O controle judicial de constitucionalidade moderno nasceu nos Estados Unidos, a partir da decisão do caso Marbury v. Madison, em 1803. Desde então pode-se dizer que as atenções do meio acadêmico jurídico, especialmente no campo do direito contitucional, foram progressivamente voltando-se a essa prática, com vistas a melhor compreendê-la. A partir da segunda metade do século XX, o controle de constitucionalidade foi amplamente difundido e hoje está presente na grande maioria dos países democráticos. Mais recentemente, os debates sobre o tema convergiram para os excessos cometidos pelos órgãos incumbidos, em cada Estado, da tarefa de revisar a constitucionalidade da legislação. Foram colocados no centro das discussões não apenas o modo por meio do qual os órgãos de controle atuam, especialmente o Poder Judiciário, mas também a própria legitimidade do exercício dessa função, tendo em vista as tensões existentes entre o controle de constitucionalidade das leis por órgãos não representativos e os princípios democrático e do Estado de Direito. Dessa forma, a tese inicia-se buscando compreender as origens do judicial review na tradição do common law inglês; em seguida, procura desvendar como a tradição do direito inglês foi incorporada aos Estados Unidos e compatibilizada à sua constituição escrita; passa, então, a descrever as dificuldades que os autores modernos encontraram para justificar o exercício do controle judicial de constitucionalidade, tendo em vista a dificuldade contramajoritária que enfrenta; expõe, assim, algumas críticas ao que se convencionou chamar de supremacia judicial, tese que afirma competir ao Poder Judiciário proferir a última palavra sobre o significado da Constituição; e, por fim, reinserindo o debate no plano do constitucionalismo político, a tese explicita a noção de diálogo institucional e tenta imaginar os papéis institucionais que Cortes e Parlamentos exercem ou devem exercer nesse debate, com foco especialmente no Brasil e na relação entre o Supremo Tribunal Federal e o Congresso Nacional relativamente à interpretação da Constituição. / This thesis focuses on the problems of the contemporary constitutional review in Brazil. It is widely recognised that constitutional review was established in 1803 with the landmark case Marbury v Madison. By the second half of the 20th century some form of constitutional review had been adopted by most western democracies. More recently the excesses of such a form of control of the legislative function have shifted the experts attention to the phenomenon of judicial supremacy. Because it is most frequently performed by unelected officials, the procedures of judicial review have been put under scrutiny and its very legitimacy has been questioned. This tension between the majoritarian principle and the judicial function of constitutional review became known as the counter-majoritarian difficulty. Although our main focus is on the Brazilian constitutional review, we start by going back to the beginnings of the judicial review within the common law tradition in order to understand the primitive structure of this function. Then we move on to its transplantation into American legal practice, which uses a written constitution as a basis for the judicial review. Next, we examine some of the contemporary uses of constitutional review, as depicted by its critics. Finally, we analyse the relations between the Supreme Court and the National Congress of Brazil in performing judicial review. We argue that in order to overcome the counter-majoritarian difficulty, we must accept this constitutional function as a political one, which means moving beyond its judicial features and including other institutions, such as the Congress, in the process of judging whether or not statutes should be invalidated when they breach the constitution. We call this widening of the range of institutions capable of participating in the constitutional review institutional dialogue.

Beginning in the early nineteenth century, American jurisprudence grappled with the issue of marital property. States under the Anglo-American legal tradition of common law revised marital property allocations to allow wives to hold certain categories of property separate from their husbands. These changes were enacted, in part, to insulate a wife's property from the vagaries of the market but the judicial response reveals a larger narrative of ambivalence and anxiety about women, property, and the suggested mobility of separately held possessions. Marital property reform begins in an historical moment when the question of what a woman could own in marriage morphed into larger cultural anxieties such as the very meaning of ownership and things themselves in the face of new intangible properties. Writers of fiction also captured these anxieties, and created imagined scenarios of marriage and property to expose constructions of ownership, property, womanhood, and marriage. Edna Pontellier in Kate Chopin's The Awakening attempts her withdrawal from her marriage by dismantling the Pontellier home and removing what she believes she owns to a separate physical space. The tragedy of her story can be understood for its legal impossibility under common law, as well as the restricted meanings of marriage and separate property under Louisiana's civil law jurisdiction. At the end of Edith Wharton's Summer, Charity Royall chooses to secretly reclaim a brooch that was a gift from her lover. Her action suggests a desire for privacy and could be viewed as fraudulent to her marriage vows. Pauline Hopkins's character Hagar in Hagar's Daughter repossesses material spaces in which she was forbidden to own and control because of her race and gender, and uses the American justice system to support her claims to ownership and contractual rights. In contrast to Hopkins's tenuous but nonetheless optimistic portrayal of contract, Marìa Amparo Ruiz de Burton's novel Who Would Have Thought It? describes contract and the American legal system overall as empty promises. Marriage and property in Ruiz de Burton's novel work as tropes through which to critique nineteenth-century American society and the destructive force of capitalism within its most intimate spaces.

Le travail examine la part des représentations du droit dans la construction des cultures juridiques, illustrées par des situations relatives aux rapports à la terre. Trois contextes juridiques différents, la France, et deux de ces anciennes colonies, le Québec et le Sénégal, soulignent le rapport entre la légitimité du droit et la production normative. En se référant à la notion juridique de propriété, l'étude met en évidence les difficultés de diffusion du modèle et de la culture juridique française d'inspiration civiliste au Québec et au Sénégal et montre que le droit n'est pas l'objet de représentations et pratiques universelles, en examinant les mécanismes d'interprétations de ce modèle par les populations et les élites québécoises, amérindiennes et sénégalaises. La perspective historique, nécessaire pour étudier la culture juridique et les processus juridiques, permet d'envisager les pratiques du droit de l'époque contemporaine sous l'angle des relations entre les cultures juridiques que ce soit en terme de confrontation ou en terme d'échange. Deux questions émergent : celle de la nature du droit qui résulte des échanges et celle du rapport entre légalité et légitimité du droit produit. Les rencontres juridiques conduisent-elles à une situation de métissage du droit ou à une situation de pluralisme juridique ? La lecture théorique de cette question ne peut être dissociée du questionnement sur la légitimité de la production normative et conduit à examiner les pratiques des populations en présence.

This thesis examines Bitzer's model of the rhetorical situation by using it, in combination with elements of Bormann's fantasy theme analysis to perform a criticism of radical right rhetoric. First, it identifies the exigencies that give rise to the sovereignty rhetoric employed by members of the radical right. This analysis then determines whether the speech meets the needs of its intended audience. To accomplish this task, two websites are analyzed: the Posse Comitatus/Christian Identity website and that of the Republic of Texas, a secessionist, common law/sovereign citizen's site. These websites claim to be the official websites of the two organizations. The analysis is a generative analysis, combining Bitzer's model of rhetorical situation with aspects of Bormann's fantasy theme analysis. Through performing the analysis, weaknesses and areas for improvement in Bitzer's model will be identified.Sovereignty and common law rhetoric comes in many variations, but all revolve around a central principle - that there are two classes of citizenship. United States citizenship is conferred by the Fourteenth Amendment and is accepted by participation in programs such as social security (Nagle, 1996). This form of citizenship is subject to extensive regulation and taxation. However, sovereignty rhetoric focuses on state citizenship. This type of citizenship is conferred by common law and can be recaptured by rejecting U.S. citizenship. Advocates of sovereignty argue that state citizens are not subject to most federal laws and cannot be taxed by the federal government.Why study common law/sovereign citizen rhetoric? There is broad crosspollination among extremist groups, and sovereignty rhetoric is a consistent theme for many of these groups (Shapiro, 1995). For example, individuals convicted of abortion bombings have had militia ties, and tax protestors attend preparedness expos' (Tharp & Holstein, 1997). Likewise, events such as the death of Randy Weaver's wife in the 1992 Ruby Ridge standoff, and the 1993 Branch Davidian fire are cited by extremists of numerous ideologies as evidence of a government conspiracy (Dyer, 1997).2 Furthermore, for every camouflage-clothed militia member, there are several amateur attorneys studying old law books, the Constitution and each other's websites in an effort to unravel the meaning of the "true" Constitution (Abanes, 1996).The Posse Comitatus and Republic of Texas websites are useful artifacts because they are clear examples of the types of rhetoric addressed in this study. The present incarnation of the Posse Comitatus merges Posse Comitatus and Christian Identity rhetoric, allowing exploration of the common law rhetoric of both groups through one website. While claiming not to be a militia website, the Republic ofI Preparedness expos offer survivalist training and equipment, firearms, ammunition and common law materials (Tharp & Holstein).Extremists are particularly fascinated by the date April 19, a date on which events ranging from the Revolutionary War to the Branch Davidian fire took place (Stern). In some circles, this date is called Militia Day and has assumed almost religious significance.Texas maintains at least three separate militias and features extensive discussions of common law and sovereign citizen rhetoric.To understand these groups, it is necessary to understand the exigencies that brought them into existence. Bitzer's model of rhetorical situation, with its focus on exigencies, is an excellent tool for understanding the social and economic factors contributing to the growth of these types of groups. However, Bitzer offers only limited insight into how the messages are spread and why people accept them. Bormann's fantasy theme method of analysis helps answer the questions of how the sovereignty/common law message satisfies the rhetorical and psychological needs of the group members. / Department of Communication Studies

This essay investigates the integral linkages between Gothic spaces and Gothic masculinities in three texts: Horace Walpole’s The Castle of Otranto (1764), Jane Austen’s Pride and Prejudice (1813), and Emily Brontë’s Wuthering Heights (1847). At the core of this examination is architecture, or more specifically, the physical constructions and built environments that comprise a man’s property. I explore how a man uses his property to construct, legitimize, and perform his identity. In the Female Gothic, the home is a place of anxiety for women, where patriarchal dominance and violence reign to constrain female agency. I argue that the home is also an anxiety-ridden space for men, who are similarly tyrannized by a force they have limited power to fight against: legality. The issue of legally legitimized property ownership as a means of defining masculine selfhood in these texts lead men to extreme, and arguably unnatural, resorts to cling to their coveted status as autonomous property holders and virile men. In short, I aim to define a specifically Gothic masculinity. Yet, by using Pride and Prejudice, I will argue that this Gothic masculinity is not limited to Gothic texts.

Univ., Diss.--Passau, 2003. / Literaturverz. S. [383] - 394.