This thesis is about the nature of value incommensurability and its significance for judicial reasoning. It argues that there can be incommensurable values and that this incommensurability can have significant implications for judicial reasoning. I argue that incommensurability gives rise to a range of reasonableness, within which it is reasonable but in a sense also arbitrary to decide either way, and that this range is wider than is suggested by the notion that some options are roughly equal, because even a large improvement to one option may not make it the uniquely correct option. The thesis goes on to consider the effect that the authority of law can have on choices between incommensurable options. Although I argue that the authority of law can sometimes provide a conclusive reason to choose one of two incommensurable options, I also argue that it has limits and may not do so in every case of incommensurability. Moreover, the introduction of an authoritative directive may even give rise to incommensurable options where none previously existed. The thesis then draws out the implications of these claims, first, for human-rights adjudication—where my claim is that ‘balancing’ is appropriate both in the specification of rights and in assessing the justification for their infringement, provided we acknowledge the limits of balancing in cases of incommensurability—and, secondly, for adjudication involving common law reasoning and statutory interpretation. Finally, I suggest that we can distinguish between different ideals of the rule of law, and that the arbitrariness of judicial decisions involving incommensurable options has different implications for those different ideals. The arbitrariness involved in choosing between undefeated reasons may be necessary contrary to one ideal of the rule of law, understood as the rule of authority, but not contrary to an ideal of the rule of law understood as the rule of reason.

Es un estudio retrospectivo y transversal, donde el desarrollo dental de 321 niños y niñas peruanas entre 5,5 a 13,5 años fue evaluado con el método de Demirjian. Una submuestra de 32 radiografías panorámicas fue escogida al azar y vueltas a examinar para evaluar la fiabilidad intraexaminador. El coeficiente de correlación intraclase en las puntuaciones de maduración fue de 0,99. El coeficiente de Cohen’s Kappa fue de 0,82, ambas interpretadas como altamente confiables. Los niños fueron clasificados por sexo y edad. La edad dental y la edad cronológica fueron comparadas usando la prueba t pareada. En la mayoría de los grupos, la edad dental fue sobrestimada y presentaban una diferencia significativa. Nuevos estándares para la población peruana fueron construidos usando una curva logística con la ecuación: y = 1 / ((1/100) + ) como base ya que los estándares propuestos por Demirjian no fueron apropiados para la población peruana. / -- In a retrospective cross - sectional study dental development of 321 Peruvian children, aged 5,5 – 13,5 years, were evaluated by Demirjian method. A subset of 32 pantomograms were randomly chosen and re-examined. The intra-class correlation coefficient on maturity scores was 0,99. The Cohen’s Kappa coefficient was 0,82, both interpreted as “substantially reliable”. The children were classified by sex and age. Dental age and chronological age were compared using paired t – test. Dental age was overestimated in most of age groups and there is no statiscal difference. New standards for Peruvian children were built using a logistic curve with the equation: y = 1 / ((1/100) + ) as a basis, because of Demirjian’s standards were not appropriate to Peruvian children.

No description available.

No description available.

Cette thèse interroge l’idée, fondamentale dans la philosophie juridique française, qui consiste à opposer formellement le droit et la science du droit. Cette opposition est l'application à la recherche en droit du dualisme sujet/objet, importée de la philosophie scientifique. Elle a conduit l'épistémologie juridique positiviste à déterminer des règles strictes en vue d'accéder à une véritable recherche scientifique sur le droit. Cependant, les théories sémantiques qui poursuivent les lignes de l'opposition du droit et de la science du droit reposent sur des bases fragiles et contestables. En particulier, la dissociation entre le langage juridique et le langage de la science du droit semble avoir été forcée par l'épistémologie juridique en vue d’entretenir l'idée d'une science du droit. Il semble toutefois possible de concevoir la recherche en droit autrement qu'en ayant recours aux fondamentaux de la philosophie scientifique. La philosophie herméneutique, fondée sur le rapport sujet/sujet, a été approfondie pour concevoir l'idée que le droit, pour les chercheurs en droit, consiste en une discussion à laquelle il leur importe de participer. Dans ce cadre, les prétentions à la scientificité par les chercheurs en droit doivent être interrogées, ainsi que les règles épistémologiques qui encouragent à la dissimulation d'un engagement dans la discussion juridique. Il importe au contraire de reconnaître la liberté des chercheurs en droit dans leur participation à la résolution de problèmes juridiques, ainsi que de saisir l’éclectisme de la recherche en droit au sein d’une épistémologie juridique démocratique. L’idée de science du droit est un obstacle à ces interrogations / The broad questions this work is addressing focus on the stringent opposition between law and legal science. Such a distinguishing is crucial for french philosophy. It assume the application to legal research of a subject/object dualism imported from scientific philosophy. It has led legal positivist epistemology to determine strict rules in order to access a genuine scientific legal scholarship. But the semantic theories which justifie the opposition of law and the science of law are based on tenuous and questionable bases. The dissociation between legal language and the language of legal science seems to have been forced by legal epistemology in order to preserve and maintain the idea of a legal science. It seems possible, however, to conceive of legal scholarship without any help from the fundamentals of scientific philosophy. The hermeneutic philosophy, based on the subject/subject relationship, has been helpful to conceive that the legal scholars’ law is a discussion, and not an object, and that they participate in. In this context, claims to scientificity from legal scholars must be questioned, as well as epistemological rules that encourage the concealment of commitment in legal discussion. On the contrary, it is important to recognize the freedom of legal scholars to participate in the resolution of legal issues, as well as to conceive this participation through a democratic legal epistemology. It seems that the idea of the science of law is an obstacle to these questions

Submitted by Ana Paula Lisboa Monteiro (monteiro@univates.br) on 2012-12-11T12:22:55Z No. of bitstreams: 3 JosianeLuz.pdf: 2728910 bytes, checksum: 4cc0e53089dbd8f203ad4c79d6aa77df (MD5) license_text: 19951 bytes, checksum: 49b474ac87052564e7446b2f4796a474 (MD5) license_rdf: 23599 bytes, checksum: 9e2b7f6edbd693264102b96ece20428a (MD5) / Made available in DSpace on 2012-12-11T12:22:55Z (GMT). No. of bitstreams: 3 JosianeLuz.pdf: 2728910 bytes, checksum: 4cc0e53089dbd8f203ad4c79d6aa77df (MD5) license_text: 19951 bytes, checksum: 49b474ac87052564e7446b2f4796a474 (MD5) license_rdf: 23599 bytes, checksum: 9e2b7f6edbd693264102b96ece20428a (MD5) / A presente pesquisa tem como objetivo principal verificar como ocorreu a oferta de informações pelas Agências Câmara e Senado no ano de 2011, por meio de seus sites, sobre a mudança legislativa que envolveu o Código Florestal, mais especificamente a reserva legal, buscando constatar se o direito à informação foi efetivado. O trabalho realiza um breve resgate bibliográfico sobre a tutela jurídica do meio ambiente, envolvendo a proteção do meio ambiente na Constituição Federal e o estudo dos princípios do direito ambiental pertinentes à pesquisa, princípio da informação e da participação e suas relações com a cidadania. As práticas do campo jornalístico são investigadas em sua interface com o tema meio ambiente. O método utilizado baseia-se na pesquisa bibliográfica e documental, realizando-se uma análise quali-quantitativa das matérias jornalísticas. A análise quantitativa identifica quais as fontes das notícias, espaços, critérios de noticiabilidade, enquadramentos, uso de imagens e número de linhas ofertados para as notícias sobre o Código Florestal. Depois se faz uma análise qualitativa com um número mais restrito de notícias, verificando com mais proximidade as suas características, ausências, sentidos, intenções e discursos. Verifica-se que o tema referente à reserva legal foi tratado de modo superficial e unilateral pelos meios oficiais. Com a cobertura midiática realizada não se ofertou aos leitores condições de realizar uma avaliação sob a ótica ecológica, pois as agências prenderam-se a debates políticos. A nova lei fere o princípio da proibição do retrocesso, e esta temática ficou ausente nas discussões promovidas pelas Agências de Notícias pesquisadas.

Which political entities have personality in international law? ‘States’ is an inadequate answer. Historically, the term has not always designated a stable, legally meaningful category of entities, nor have states been the sole political entities with rights and duties. Moreover – contrary to traditional views – there is more than one means of acquiring statehood, with the consequence that not all states are alike in legal terms. This thesis offers an explanation of the personality of states and other political entities that takes this complexity into account. The first chapter of the thesis presents a definition of the personality of political entities. The definition draws on W N Hohfeld’s approach to rights and duties and requires a person to have at least one right or duty in his sense. This emphasises that personality is primarily about conduct: international law regulates conduct by persons towards other persons. Chapter 2 investigates the personality of political entities before the twentieth century, focusing on the question of what differences existed between Western states and the empires, chiefdoms, and other political entities found elsewhere in the world. This question was significant for the emergence of a stable concept of statehood. Chapter 3 examines the general rules about statehood. It rejects both the view that statehood always depends on criteria of effectiveness and the view that statehood always depends on recognition. The most persuasive view is that statehood can be acquired either by effectiveness or by recognition (with some qualifications: notably, recognition may create statehood relative only to some other states). This explains, among other things, how states can survive extended periods of anarchy. Chapter 4 deals with exceptions to the general rules, showing that recognition usually cannot be used to breach an existing state’s territorial integrity and that the role of peremptory norms must be reassessed in light of the existence of two alternative means of acquiring statehood. The final chapter concerns the possibility that political entities may have personality short of statehood.

In modern scholarship, the concept of equity is often assimilated with that of Aristotelian epieikeia, a process which serves to correct rules when, though their wording undoubtedly applies to a case, yet the outcome would be unjust, or the legislator would have never wanted the rule to be applied to such a case. My thesis deals with the early-modern origins of the association of equity and epieikeia in legal scholarship, and of its consequences for the doctrinal development of equity in the sixteenth and seventeenth century. I begin by showing that medieval legal writings on equity were almost completely unconcerned with epieikeia, and that the latter was only developed by philosophers and theologians. Legists and canonists developed a concept of equity that was unrelated - indeed mostly incompatible - with judicial discretion or the emendation of written rules. Thus, throughout the Middle Ages, there was almost no interaction between the writings of civil and canon lawyers on equity, and those of theologians on epieikeia. In the second chapter of my thesis, I show that the introduction of epieikeia in legal scholarship was the result of the influence of humanistic philology over the writings of humanist jurists, and argue that it caused the majority of early-modern authors to depart from medieval scholarship on equity, re-modelling instead equity as a doctrine of interpretation of the law beyond its letter in accordance with the intentions of the legislator. The final part of my thesis argues that the development of equity as epieikeia in legal scholarship broke down the barrier that had hitherto divided theological and legal writings on equity. Indeed, from the late sixteenth century onwards, legal and theological writings on equity were connected to such an extent that many later authors treated these two branches of scholarship as belonging to one, equally authoritative body of learning on the same topic.

This thesis examines the limitations of the legal responses to ‘domestic violence’ from the perspective of two central arguments; first, domestic violence is a social problem, rather than one caused by the deviancy of particular individuals, and, secondly, legal and societal understandings display a misplaced focus on ‘violence’ as the defining feature of an abusive relationship. By failing to address the root social causes or comprehend the true dynamics of abusive relationships as a range of coercive and controlling strategies, incidents of mainly physical violence and the behaviour and personality of the abused woman become the social and legal focus. The thesis asserts that the root causes of domestic violence are the gendered expectations placed upon masculinity and femininity, thus explaining why it is women that are predominantly the victims. To refute the common misconception that women would exit an abusive relationship if they wanted to, a comparison is made between domestic violence and capture crimes such as kidnapping, and the range of social and psychological difficulties encountered by women as a result of the abusive relationship are used to support the claim that the sense of self, autonomy and decision-making ability of the victim is so undermined by the abuser’s tactics that they become entrapped in the abusive relationship. It is then argued that societal and legal misunderstandings of the dynamics and impact of the abuse lead to misinformed legal responses based upon the premise that women are able to safely report domestic violence and receive an adequate response, should they choose to do so. Bringing together critiques of the operation of the civil and criminal justice system in this context with the possibilities and limitations of the international human rights system, the thesis aims to demonstrate not just where the legal responses pertaining to domestic violence are limited, but also why. The research concludes that a legal approach to this problem which overlooks the root causes and over-emphasises isolated incidents of mainly physical violence does not and cannot work; the causes and impacts of domestic violence must be understood and addressed at a society-wide level.

This dissertation explores how the social and political consequences of armed conflict affect legal pluralism; specifically, the coexistence of Russian state law, Sharia, and customary law in Chechnya. The study draws on qualitative and quantitative data gathered during seven months of fieldwork in Chechnya. The data include over one hundred semistructured interviews with legal authorities and religious and traditional leaders; an original survey of the population; and a novel dataset of all civil and criminal cases heard in state courts. First, the dissertation argues that armed conflict disrupted traditional social hierarchies in Chechnya, which paved the way for state penetration into Chechen society. The conflict particularly disrupted gender hierarchies. As a result of the highly gendered nature of the conflict, women in Chechnya became breadwinners in their families and gained experience in serving important social roles, most notably as interlocutors between communities and different armed groups. This change in women’s bargaining power within households and increase in their social status came into conflict with the patriarchal social order, which was based on men’s rigid interpretations of religious and customary norms. In response, women started utilizing the state legal system, a system that at least formally acknowledges gender equality, in contrast to customary law and Sharia. State law is corrupt, inefficient, slow, and its use is associated with community and family ostracism. Nevertheless, this dissertation shows that many Chechen women use and support state law. Second, the dissertation establishes that the political context of the conflict moderates the effect of war on legal pluralism. The penetration of state law through disruption of social hierarchies is driven by the Second Chechen War (1999-2009). In contrast, communities that were exposed to violence during the First Chechen War (1994-1996) ultimately rejected Russian state law and rely predominantly on Sharia and customary law. In these communities, the structural effects of disrupted hierarchies were overpowered by alienation from the Russian state. The study explains this discrepancy by showing how communities victimized during the First War developed strong collective identities that filtered blame for the war. Third, the dissertation shows that war-induced female empowerment in Chechnya faced a strong backlash from the Chechen government. The most notorious manifestations of the neotraditionalist policies of the Chechen government are the semiformal introduction of polygamy, support for the practice of honor killings, and a restrictive female dress code. Furthermore, the officials in charge of state law actively disrupt its functioning in gendered cases. The study finds that state officials in Chechnya are less supportive of state law than the average Chechen. This is the result of the incorporation of former rebels into the government, which is a structural legacy of the conflict. In addition, the dissertation argues that the Chechen regional government promotes legal pluralism and undermines state law strategically, as part of its coalition-building effort. The government allows men to keep control over their families, relying on custom and religion in exchange for their political loyalty. Finally, the dissertation suggests that government promotion of legal pluralism is a political strategy that has several objectives: (1) it allows the government to borrow legitimacy from tradition and religion, which both have large appeal among the Chechen population; (2) it increases the government’s discretion and allows it to cherry-pick norms across alternative orders while avoiding regulations embedded in them; and (3) it gives the regional government additional leverage vis-à-vis the federal center by signaling to the Kremlin that it cannot rule Chechnya directly and that its local intermediaries are indispensable. Overall, the dissertation shows that legal pluralism is not just a reflection of ‘political culture’ or ‘weak state capacity,’ but rather is an inherently political phenomenon, an arena for the pursuit of interests by the government and individuals alike.