In this dissertation, I aim to demonstrate that the debate between legal positivism and natural law theory cannot be settled through moral argumentation. To demonstrate this point, I lay out three criteria that must be fulfilled if a moral argument for a given theory is to succeed. I then examine arguments that have been put forth in the past in reference to the behaviour of citizens as well as judges. By showing the difficulty these arguments have in satisfying the three criteria, I simultaneously cast doubt on the possibility that future arguments of this kind will be successful. My aim is to put an end to a current trend in jurisprudence--choosing a conceptual theory of law on moral grounds. By doing so, I hope to refocus the debate on descriptive jurisprudence. / Thesis / Master of Arts (MA)

Healthcare ethics consultation has had a place in healthcare for many decades yet the nature of the work is not well understood by many of its critics as well as its defenders. Practicing healthcare ethicists (or PHEs) have been described as compromised and ineffectual; politicised and undemocratic; and their promise to offer sound advice has been deemed irredeemably incoherent in the context of value pluralism. I tease out what is instructive in these critiques and argue that they may be answered by reviewing the conflict of interest literature and by exploring what is distinctive about the PHE role. The most challenging aspect of any PHE’s role is to provide support for the management of so-called hard cases, therefore I introduce a typology of hard cases. Emphasis is placed on what I call (borrowing from the legal theoretical literature) penumbral ethical cases. Legal theory, especially that part of legal theory that deals with what H. L. A. Hart called penumbral cases, can help PHEs (and others) to appreciate the fact that theoretical disagreement need not signal that the field has little to offer, nor need it imply that all answers are equally defensible in the hardest of cases. Finally, I argue that legal theory can provide a jumping-off point for the study of insufficiently explored topics related to PHE professionalization. Legal theorists have long attended to the relationship between law and morality, the problem of obedience in wicked legal systems, and the supposed tension between democracy and the role of an expert judiciary. An appreciation that these debates are not unique to the practice of healthcare ethics may help PHEs to engage critics with a renewed confidence and some fresh approaches to perennial, and hitherto unproductive, arguments. / Dissertation / Candidate in Philosophy / Ethics consultation has had a place in healthcare for decades, however the nature of the work is not well understood by many critics and defenders. Practicing healthcare ethicists (PHEs) have been described as compromised and ineffectual; politicised and undemocratic; and their promise to offer sound advice has been deemed irredeemably incoherent in the context of value pluralism. I tease out what is instructive in these critiques and argue that they may be answered by reviewing the conflict of interest literature and by exploring what is distinctive about the PHE role. I introduce a typology of hard cases with an emphasis on penumbral ethical cases, and contend that legal theory, especially that part which deals with H. L. A. Hart’s penumbral cases, can help PHEs to describe theoretical disagreement in hard cases. I also argue that jurisprudence can be useful in the exploration of topics related to the professionalization of PHEs.

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This thesis is an exercise in the historical use of legal analysis. It illuminates the social construction of gender in an era of changing social mores, by relating rape doctrines to demographic, economic, social, and cultural changes. Changes in the rape law of early Industrial Britain (1800-1860) are examined as: 1). results of ideological changes since the eighteenth century; and 2). causes of the creation of Victorian sexual culture. The ideology of Separate Spheres for men and women led to a fearful sexual regime which prescribed chaperoning to ensure womens chastity. Law made womens avoidance of being alone outside, where they could become prey of strange men, a requirement for sexual respectability, because rape became more difficult to prove.<p>The 1817 rural Midlands murder case of Rex versus Abraham Thornton caused popular controversy because the judge said physical evidence of brutal sex was not inconsistent with consensual sex: the woman could have been persuaded by violence: reasonable doubt on the rape meant the accused was presumed to lack a motive to kill the deceased. Thornton was influential on law and gender ideology. Consent to forcethe idea that a woman could meaningfully consent to sex after violencewas extended in later rape cases. Secondly, even though the public reacted against Thorntons acquittal, popular culture interpreted it to support Stranger Dangerthat women risk rape by strangers while out alone, and should remain at home unless accompanied by trusted men. Consent to Force and Stranger Danger worked at different levels of the social hierarchy. But both served to extend Separate Spheres to working class women.<p>Law undermined traditional mores which had supported the North West European marriage systemlate marriage, small age difference between brides and grooms, nuclear family households, and numerous adolescents working in others homes as servants, resulting in low rates of premarital births during long courtships. Young commoners had managed a sexual balancing act by engaging in sexual exploration while refraining from vaginal intercourse. Late marriage, very low illegitimacy, and high rates of prenuptial conceptions of first marital births, resulted from young couples engaging in sexual intercourse only when conditions for marriage were right. Young men had to marry pregnant sweethearts, because communities could identify putative fathers.<p>Industrialization threw the North West marriage system out of balance: young men became more mobile and able to evade forced marriage. It also became more difficult for young men, especially artisans, to achieve the status traditionally associated with marriage. This sexual crisis was exacerbated by upper class libertinism spreading to commoner men. The Thornton case promoted libertinism among all men, to allow men of higher class to approach lower class women for prostitution.<p>The moral denigration of lower class women under rape law after Thornton was the flip side of the association of marriage with making wives consent to sex upon demand by their husbands, under Fraternal Patriarchy. Categorizing women as bad girls or good girls became central to rape law, yet illusory. Lower class women persuadable by force were subjected to similar constraints as wives: both were to think selflessly about fulfilling mens needs. Bourgeois wives, like domestic servants, entered lifelong contracts to serve heads of households upon demand. Domestic torts based upon the property right of masters of households to service provided by wives and children, as well as servants, linked treatment of different classes of women. <p>But because lower class women were not marriageable to elite men, their premarital chastity was not considered as valuable. Working class womens gender value was discounted; working class men were emasculated as potential heads of households, by economic instability interfering with marriage, the displacement of mens authority over wives to their employers, and the 1834 New Poor Law, which proposed removing wives and children from working class husbands and fathers when they went onto relief. De-gendering of lower class women and men was reflected in the difficulty that lower class men had in obtaining damages for domestic torts. Privileging of the bourgeois with respect to gender contributed to the failure of feminist and labour movements to cement a political alliance. Industrial-era rape doctrines were ultimately applied to all women rape complainants, regardless of class status, and became the basis for the anti-victim rape laws which second wave feminists analyzed and opposed. Modern rape law still presents women with similar challenges, based upon rape myths like Stranger Danger.

This paper concerns the dominant conceptual or formal accounts of legal rights: the Interest and Will Theories. Section II clarifies the minimal necessary conditions for a rights model to count as a Will Theory. It also explores Kant’s Will Theory of rights and the difficulties posed to it by Hohfeld’s schema of jural relations. Kant has three alternatives: reject the schema’s utility or demonstrate his theory’s compatibility with it via molecularist or basic models of Hohfeldian rights. Although his best option is to disavow Hohfeld, Kant’s theory is ultimately undesirable on other grounds. Section III shall analyze the modern Will and Interest Theories’ biggest weaknesses according to a test proposed in Section I, which should generate bases for preferring one theory to another. It will offer a counterargument to the Inalienability charge levied against the Will Theory, and demonstrate why Interest Theory responses to the Third Party Beneficiary argument are inadequate.

This paper concerns the dominant conceptual or formal accounts of legal rights: the Interest and Will Theories. Section II clarifies the minimal necessary conditions for a rights model to count as a Will Theory. It also explores Kant’s Will Theory of rights and the difficulties posed to it by Hohfeld’s schema of jural relations. Kant has three alternatives: reject the schema’s utility or demonstrate his theory’s compatibility with it via molecularist or basic models of Hohfeldian rights. Although his best option is to disavow Hohfeld, Kant’s theory is ultimately undesirable on other grounds. Section III shall analyze the modern Will and Interest Theories’ biggest weaknesses according to a test proposed in Section I, which should generate bases for preferring one theory to another. It will offer a counterargument to the Inalienability charge levied against the Will Theory, and demonstrate why Interest Theory responses to the Third Party Beneficiary argument are inadequate.

This thesis is an exercise in the historical use of legal analysis. It illuminates the social construction of gender in an era of changing social mores, by relating rape doctrines to demographic, economic, social, and cultural changes. Changes in the rape law of early Industrial Britain (1800-1860) are examined as: 1). results of ideological changes since the eighteenth century; and 2). causes of the creation of Victorian sexual culture. The ideology of Separate Spheres for men and women led to a fearful sexual regime which prescribed chaperoning to ensure womens chastity. Law made womens avoidance of being alone outside, where they could become prey of strange men, a requirement for sexual respectability, because rape became more difficult to prove.<p>The 1817 rural Midlands murder case of Rex versus Abraham Thornton caused popular controversy because the judge said physical evidence of brutal sex was not inconsistent with consensual sex: the woman could have been persuaded by violence: reasonable doubt on the rape meant the accused was presumed to lack a motive to kill the deceased. Thornton was influential on law and gender ideology. Consent to forcethe idea that a woman could meaningfully consent to sex after violencewas extended in later rape cases. Secondly, even though the public reacted against Thorntons acquittal, popular culture interpreted it to support Stranger Dangerthat women risk rape by strangers while out alone, and should remain at home unless accompanied by trusted men. Consent to Force and Stranger Danger worked at different levels of the social hierarchy. But both served to extend Separate Spheres to working class women.<p>Law undermined traditional mores which had supported the North West European marriage systemlate marriage, small age difference between brides and grooms, nuclear family households, and numerous adolescents working in others homes as servants, resulting in low rates of premarital births during long courtships. Young commoners had managed a sexual balancing act by engaging in sexual exploration while refraining from vaginal intercourse. Late marriage, very low illegitimacy, and high rates of prenuptial conceptions of first marital births, resulted from young couples engaging in sexual intercourse only when conditions for marriage were right. Young men had to marry pregnant sweethearts, because communities could identify putative fathers.<p>Industrialization threw the North West marriage system out of balance: young men became more mobile and able to evade forced marriage. It also became more difficult for young men, especially artisans, to achieve the status traditionally associated with marriage. This sexual crisis was exacerbated by upper class libertinism spreading to commoner men. The Thornton case promoted libertinism among all men, to allow men of higher class to approach lower class women for prostitution.<p>The moral denigration of lower class women under rape law after Thornton was the flip side of the association of marriage with making wives consent to sex upon demand by their husbands, under Fraternal Patriarchy. Categorizing women as bad girls or good girls became central to rape law, yet illusory. Lower class women persuadable by force were subjected to similar constraints as wives: both were to think selflessly about fulfilling mens needs. Bourgeois wives, like domestic servants, entered lifelong contracts to serve heads of households upon demand. Domestic torts based upon the property right of masters of households to service provided by wives and children, as well as servants, linked treatment of different classes of women. <p>But because lower class women were not marriageable to elite men, their premarital chastity was not considered as valuable. Working class womens gender value was discounted; working class men were emasculated as potential heads of households, by economic instability interfering with marriage, the displacement of mens authority over wives to their employers, and the 1834 New Poor Law, which proposed removing wives and children from working class husbands and fathers when they went onto relief. De-gendering of lower class women and men was reflected in the difficulty that lower class men had in obtaining damages for domestic torts. Privileging of the bourgeois with respect to gender contributed to the failure of feminist and labour movements to cement a political alliance. Industrial-era rape doctrines were ultimately applied to all women rape complainants, regardless of class status, and became the basis for the anti-victim rape laws which second wave feminists analyzed and opposed. Modern rape law still presents women with similar challenges, based upon rape myths like Stranger Danger.

The prime focus of this dissertation consists in exploring constitutional jurisprudence in the Supreme Court of Venezuela over the last five decades, making use of arguments drawn from Venezuelan history and the existing jurisprudential approaches to theories about the general character of law as integrated in numerous public law cases. This study offers a new approach, one that focuses on ensuring that fundamental constitutional principles are aligned with the concrete objectives (purposes) that the Constitution sets out to achieve. This account is developed through a theoretical framework comprising of: I. A historical overview from independence (1811) to democratization (1947 and beyond), emphasizing the fundamentals of the Constitutions of 1961 and 1999, to portray a vivid and accurate picture of the origins of Venezuela’s constitutional democracy; II. A survey, of constitutional cases that illustrates the evolution of the Venezuelan constitutional jurisprudence under the overt or subliminal use of certain default legal theories, namely, legal positivism in the era of the 1961 Constitution, legal realism and Ronald Dworkin’s adjudication theory in the era of the 1999 Constitution III. An insightful discussion of the main arguments of Ronald Dworkin’s principled theory and Justice Aharon Barak’s purposive theory, in an effort to build theorectical support, which links the various points of their respective theories in order to articulate one in the context of the Venezuelan jurisprudence; IV An original attempt to build a theoretical approach based on the Venezuelan constitutional system, history, culture, and identity to bring together the priorities of formalism, particularly the written principles of the Constitution and the priorities of functionalism and social welfare. This is to ensure that the Supreme Court decides accordingly with the constitutional principles as much as their underlying purposes to provide solutions to legal conundrums.

This thesis is concerned with the progressive development of international enforcement. In effect, it explores the normative pull of international law and its influence on compliance with international environmental obligations. Moreover, it looks to the notion of progress in international law and assesses its influence within the sphere of international enforcement. In recent decades, the effect of contemporary environmental challenges on the enjoyment of various values and rights have become more apparent. It is in light of this present situation that this thesis explores the progressive development of international enforcement. Furthermore, it is in light of this situation that the thesis makes a claim for enhanced compliance with international environmental obligations. The thesis main argument is that the normative pull of international law can increase the effectiveness of international enforcement within the context of some international environmental obligations. Furthermore, the thesis posits that looking to the notion of progress in international law can advance an understanding of how the normative pull impacts the authority and legitimacy of international enforcement measures. To that end, it is argued that the notion of progress in international law, by coinciding with authority in international law, justifies coercive enforcement actions; and further, that the notion of progress, by influencing the legitimacy of international enforcement, contributes to the necessity of compliance. In effect the notion of progress in international law, therefore, has the capacity to influence compliance with international environmental obligations. In order to contextualise the theoretical arguments and assumptions made, the thesis looks to two international environmental obligations: The obligation to avert the cause of climate change and the obligation to preserve and protect the marine environment.

The prime focus of this dissertation consists in exploring constitutional jurisprudence in the Supreme Court of Venezuela over the last five decades, making use of arguments drawn from Venezuelan history and the existing jurisprudential approaches to theories about the general character of law as integrated in numerous public law cases. This study offers a new approach, one that focuses on ensuring that fundamental constitutional principles are aligned with the concrete objectives (purposes) that the Constitution sets out to achieve. This account is developed through a theoretical framework comprising of: I. A historical overview from independence (1811) to democratization (1947 and beyond), emphasizing the fundamentals of the Constitutions of 1961 and 1999, to portray a vivid and accurate picture of the origins of Venezuela’s constitutional democracy; II. A survey, of constitutional cases that illustrates the evolution of the Venezuelan constitutional jurisprudence under the overt or subliminal use of certain default legal theories, namely, legal positivism in the era of the 1961 Constitution, legal realism and Ronald Dworkin’s adjudication theory in the era of the 1999 Constitution III. An insightful discussion of the main arguments of Ronald Dworkin’s principled theory and Justice Aharon Barak’s purposive theory, in an effort to build theorectical support, which links the various points of their respective theories in order to articulate one in the context of the Venezuelan jurisprudence; IV An original attempt to build a theoretical approach based on the Venezuelan constitutional system, history, culture, and identity to bring together the priorities of formalism, particularly the written principles of the Constitution and the priorities of functionalism and social welfare. This is to ensure that the Supreme Court decides accordingly with the constitutional principles as much as their underlying purposes to provide solutions to legal conundrums.