Les conceptions jusnaturalistes peuvent paraître mineures dans la philosophie etla théorie du droit françaises à la différence de leur présence massive dans un enseignementdu droit à l’étranger mais elles n’en ressortent pas moins directement ou indirectement dudroit privé en France si l’on en analyse de près certains aspects de la doctrine, de la loi et dela jurisprudence notamment dans le domaine patrimonial des biens et des contrats. Lesdialogues de nature philosophique éclairent la polysémie qui s’attache au « jusnaturalisme »,au mot « nature » ou à ses équivalents, dénonçant une sorte de structure commune(d’invariant), dans des débats juridiques impliquant les situations les plus pratiques àcommencer par le droit de propriété. Il s’agit de montrer dans ce travail qu’il existe donc unargument de type jusnaturaliste sous-jacent à un droit qui n’en a pas toujours conscience.Cette thèse entend par là ne pas séparer l’étude de la doctrine et du droit positif, ensélectionnant les aspects les plus représentatifs et l’ensemble le plus pluraliste desconceptions jusnaturalistes et de leurs antithèses positivistes contemporaines qui serventhabituellement à discréditer toute référence à la notion de « nature », comme à sessubstituts. Il existe différents modes d’émergence des arguments jusnaturalistes. Unenouvelle lecture du droit positif peut être proposée si l’on veut assumer toutes les exigences,dans leurs dimensions critiques, qui conduisent parfois à des reclassements et qui éclairentsur des relations insoupçonnées à propos d’éléments éloignés. / The concept of “natural law” may seem minor in French philosophy and Frenchtheory of law, unlike their massive presence in legal studies abroad, but they do not standdirectly or indirectly under private law in France if analysed in certain aspects of the doctrineof the law and jurisprudence, in particular in the field of heritage property and contracts. Inlight of the philosophical dialogues which have illuminated the polisemy attached to the term“natural law” or the word “nature” in legal proceedings involving the most practical situationsstarting with the right to property, it is shown in this work that there is a natural law argumentof this type underlying a right that is not always conscious. This thesis does not separate thestudy of the theory of positive law taken in its most representative aspects and the morepluralistic theories of natural law and the rival views of contemporary positivists which usuallytend to reject any reference to or notion of natural law. There are different forms of apparitionof natural law arguments. By means of arguments, jurists look at law studies in a new light.

In this thesis I explore the attitudes, arguments, and actions of British political elites in connection with the development of human rights law in Europe and the UK. I do this by examining British input into five key episodes for the development of European supranational rights and their incorporation into domestic legal orders (namely the drafting of the European Convention on Human Rights 1950, the drafting of the European Social Charter 1961, the acceptance of individual petition in 1966, the failed 1970s Bill of Rights debate, the passing of the Human Rights Act 1998, and recent developments such as the UK ‘opt-out’ to the EU Charter of Fundamental Rights, and the emergence of a new ‘British Bill of Rights’ debate). Casting light on British involvement in less examined periods in European rights development, I challenge existing, isolated, explanations for the more focal episodes (such as Simpson’s rational-choice post-colonial thesis for individual petition acceptance, and ideological accounts for New Labour’s post-1997 constitutional reform). Responding to the most recent literature in the area, central to my analysis is the question of how rights progress relates to inter-party conflict. By considering continuities and discontinuities in elite political discussion of rights I argue that while conflict is a significant underlying feature of every major episode of rights progress during the last sixty years, and is less evident in less progressive periods, other factors have had a greater influence over the form, timing, and extent of rights progress. Most significant amongst these is the constitutional ideological development of the Labour party and the critical connection between Labour’s elevation of the Convention within the UK constitutional space and revisionist shifts in party thinking.

Transitional justice has undergone tremendous shifts since it was first used in Latin American and Eastern European countries to address post-authoritarian and post-communist legacies of atrocity and repression. In particular, the establishment of the International Criminal Court (ICC) has increased the demand for prosecutions within a field that was previously marked by compromise and non-prosecution. While there are increasing expectations that countries with unresolved claims of human rights abuses should enact transitional justice policies, most of the literature on the subject largely omits to explain how elites from those countries choose among the possible options of transitional justice, and specifically, how they choose among international prosecutions, domestic prosecutions, and truth-seeking. Using case studies of Kenya and Uganda, this dissertation examines this decision-making process to understand how elites choose and reject different transitional justice policies. Theoretically, the research examines how preferences for transitional justice policies are constituted through “judicial statecraft”: the strategic efforts by heterogeneous, interest-pursuing elites to use justice-related policies as carrots and sticks in the overall contestation of power. The research finds that the choices of elites about judicial statecraft depend on three factors: the extent to which the elites are secure that their policy choices cannot be subverted from within; the cost and credibility of transitional justice threats; and the effects, both intended and unintended, of history.

This dissertation examines how confusion and lack of access to information about subsurface property rights facilitates the rapid acquisition of mineral rights by mining interests, leaving those who live 'above the surface' to contend with complicated corporate and bureaucratic apparatuses. The research focuses on the first proposed state-run large scale mining project in Ecuador, believed to contain copper ores, and on the natural gas hydrofracking industry in three counties in north central West Virginia. Qualitative and visual methods, including mapping, are employed to determine (i.) how the geography of subsurface ownership patterns is changing, (ii.) links between changes in subsurface ownership and surface ownership, and (iii.) how these changes are facilitated or impeded by institutional and governance practices. Rights and permit acquisitions are facilitated by state institutions, which often have strategic interests in mineral development. Accordingly, this research also considers the role of state strategy with respect to the establishment, bureaucratic management, and enforcement of vertical territory, which reflects the state’s interest in and sovereign claim over subterranean resources to benefit the nation. The research finds that the historical separation of subsurface property rights from the surface is associated with a persistent weakening of surface holder claims to land in favor of mining development, and that this weakening has contributed to the long-term persistence of absentee ownership and control over land in Ecuador and West Virginia. Viewing subsurface land deals from the perspective of those whose lives are disrupted on the surface, I conclude from this work that mundane practices such as deed transfers and local micropolitics about land use are significant factors in the lead up to larger scale violences and silences, such as forced displacement and even political imprisonment of activists opposed to extraction.

My thesis explores the roles in Albanian nation-building of the Kanun of Lekë Dukagjin, an early-twentieth century codification of northern-Albanian customary practices, and the Pajtimi i Gjaqeve, a late-twentieth century movement to conciliate blood feuds in Kosovo. To understand them, we need to know: what both were, in their own terms; their significance; and how they relate to other aspects of nation-building, and comparative examples. I draw on participant-observation fieldwork, archive work and extensive interviews. Nation-building is necessarily complicated and the Albanian case particularly so. The existence of an Albanian nation was contested by neighbouring peoples, and its characteristics, by Albanians themselves. In this complex context, the text of the Kanun, and the Pajtimi i Gjaqeve, give us good insights into Albanian understandings of the nation, and associated nation-building activities, at pivotal points in national history. While the nation-building projects of the region had many elements in common, prominent ideas of a ‘national’ legal tradition are a distinctive aspect of the Albanian case. Both the Kanun of Lekë Dukagjin and the Pajtimi i Gjaqeve need to be understood as aspects of nation-building. In the context of a crumbling Ottoman Empire, by presenting Albanian customary practices in the form of a legal code, the Albanian codifier made claims about the contents and the people from whom they came. The Kanun demonstrated the existence of a distinct people with a tradition of self-governance and mediation; and made significant contributions to the crucial process of language standardisation. In the context of the 1990s break-up of Yugoslavia, ideas of an Albanian legal tradition re-emerged in Kosovo, in the Pajtimi i Gjaqeve which presented intra-Albanian disputes as national concerns, and drew on traditional values and customary practices to effect conciliations. Subsequently, the Movement itself has become a national resource, through reference to which important ideas about the nation are expressed.

Since the early 1990s, institutional approaches to organizations have increasingly focused on explaining the role of agency in processes of institutional creation and transformation. The paradox of embedded agency, the question of how actors can become motivated and enabled to transform supposedly taken-for-granted practices, structures and norms has become the fundamental puzzle of contemporary institutional theory. Recent attempts to resolve this puzzle under the label of “institutional work” focus on practices aimed at creating, maintaining, and disrupting institutions, but portray them as planned, discrete episodes that unfold in isolation from everyday organizational or social life. Thereby, the label highlights institutionalists’ current neglect of work in its literal meaning as actors’ everyday occupational tasks and activities. The detachment of institutional work from practical work constitutes a significant blind spot in institutionalists’ understanding of agency and calls for research that examines the reciprocity of institutions and work. Drawing on illuminating constructs from theories of practice, this study extends existing field-level approaches to the paradox of embedded agency. It argues for a practice-based institutionalism that focuses on individual actors and the role of their collective micro-level praxis in constituting macro-level institutions. It re-connects institutional arguments to every-day activity rather than organizational or managerial action, unpacks the micro-practices and micro–politics by which actors negotiate institutional contradictions and demonstrates the reciprocity of institutions and work. The research addresses the detachment of institutional and practical work through a single-case study of a global law firm’s banking group. It explores what banking lawyers do when they ‘do deals’ and how their practical work may attain institutional relevance. Positioned at the intersec-tion of local laws, international financial markets, commercial and professional logics, banking lawyers operate across multiple institutional frameworks. Observations and accounts of their work provide particularly rich insights into the dynamics of institutional persistence and change, because they illustrate empirically how contradictory institutionalized concepts, practices and logics are experienced, negotiated, and constituted at work.

This thesis examines the treatment and experiences of foreign national prisoners in England and Wales. It contains two main arguments. First, I contend that dominant prison theories rely on an outmoded understanding of the nation-state, and as a result, tend to ignore the effects of globalisation. Second, I argue that current prison practices reaffirm the boundaries of the British nation-state and promote an exclusionary notion of British citizenship. I conclude that research attuned to the affective, embodied dimensions of incarceration can help criminologists to develop a more ‘global’ perspective on state power. This argument begins and builds from ethnographic research. As a whole, the thesis is based on more than 200 interviews conducted over the course of a year in and around five men’s prisons in the north, southwest, and center of England. Structurally, it proceeds from a theoretical critique of prison studies, to an ethnographic account of prison life, to a conclusion about the purpose of prison scholarship. Thematically, it focuses on the relationship between identity and imprisonment, and in particular, on the ways in which normative beliefs about race, gender, sexuality, and class get infused in incarceration practices.

This dissertation deals with court-executive relations in post-authoritarian Argentina (1983-2006). Specifically, I analyse Supreme Court behaviour in highly sensitive cases to determine whether the tribunal has cooperated with or obstructed the government’s policy preferences in three key policy areas: human rights, economic emergency and pensions. This innovative type of approach – i.e., focusing on a small number of highly sensitive decisions – allows me to concentrate on cases that are genuinely important for the government or, more precisely, for the country’s political administration. There are cases that are significant for the State apparatus but irrelevant for the president (thinking of politicians as self-interested actors). My research uses a rational choice approach to courts, underscoring the strategic nature of judicial behaviour. This vision of judges provides a more accurate account of judicial-executive relations by bringing politics into the study of courts. By focusing exclusively on attitudes and apolitical jurisprudence, other visions take for granted the institutional context. Political stability, for example, cannot be assumed in many developing democracies. My findings indicate that the Argentine Supreme Court has consistently avoided obstructing the president’s policy preferences. Such behaviour is motivated by strategic considerations: judges are risk-averse actors that avoid clashing with the executive. For most of the time, the Supreme Court has operated under unified government, which increases the chances of being punished for anti-government decisions. Two other factors also account for the court’s risk-averse behaviour. First, procedural rules grant the Supreme Court wide discretion over its docket. The tribunal has used such discretion to strategically select the timing of its decisions. Second, recurrent democratic breakdowns have repeatedly led to attacks against the court, such as impeachment, irregular dismissals, and/or enlargements. Third, politicians exert broad control of judicial promotions, allowing them to block the careers of independent, courageous judges that act as a check on political power.

The thesis constitutes a detailed historical reconstruction of the creation, contestation and subsequent amendment of the Imprisonment for Public Protection sentence, the principal ‘dangerous offender’ measure of the Criminal Justice Act 2003. Underpinned by an interpretive political analysis of penal politics, the thesis draws on a detailed analysis of relevant documents and 53 interviews with national level, policy-oriented actors. The thesis explores how actors’ conceptions of ‘risk’ and ‘the public’ interwove with the political beliefs and political traditions relied upon by the relevant actors. It is argued that while there was general recognition of a ‘real problem’ existing in relation to dangerous offenders, the central actors in the creation of the IPP sentence crucially lacked a detailed understanding of the state of the art of risk assessment and management (Kemshall, 2003) and failed to appreciate the systemic risks posed by the IPP sentence. The creation of the IPP sentence, as with its subsequent amendment, is argued to highlight the extreme vulnerability felt by many government actors. The efforts of interest groups and other pressure participants to have their concerns addressed regarding the systemic and human damage subsequently caused by the under-resourcing of the IPP sentence is explored, and the challenge of stridently arguing for substantial change while maintaining ‘insider’ status is discussed. As regards senior courts’ efforts to rein in the IPP sentence, it is argued that the increasingly conservative nature of the judgments demonstrate that the judiciary are not immune from the creep of a ‘precautionary logic’ into British penal politics. Regarding the amendment of the IPP sentence, the Ministry of Justice’s navigation between the twin dangers of a systemic crisis and a political crisis are explored. In conclusion, the IPP story is argued to demonstrate a troubling ‘thoughtlessness’ by many of the key policymakers, revealing what is termed the ‘banality of punitiveness.’ The potential for a reliance on political beliefs and traditions to slip into this thoughtless state, and possible ways of ensuring that such policy issues are engaged with in a more inclusive and expansive manner, are discussed.

This thesis is an institutional ethnography of the Nigeria Police Force. It concentrates on evidence from 18 months of fieldwork in one particular police station, in the pseudonymised town of Dutsin Bature in central Nigeria, and draws comparative evidence from examples and locations elsewhere in Nigeria. The fieldwork evidence is also supported by analyses of public discourse, literature reviews, some formal interviews and historical research. The thesis aims to fill a gap in empirical scholarship by looking at policing in Nigeria primarily from the level of everyday practice, and deriving understandings of the ways the overall system works, rather than by taking normative structural approaches and basing suppositions of actual behaviour upon these. It also aims to document emic perspectives on policing in Nigeria, in contrast to most existing scholarship and public discourse which takes an external perspective, from which the voices and worldviews of police themselves are absent. The thesis situates this ethnography within three theoretical terrains. First, developing understandings of policing and public security in Africa, which have often neglected in-depth studies of formal police forces. Secondly, enlarging the ethnographic study of formal institutions in African states, to develop a closer understanding of what state systems are and how they function, beyond the overtly dysfunctionalist perspectives which have dominated recent scholarship. Thirdly, informing ongoing debates over state and society in Africa, problematising understandings which see these as separate entities instead of mutually constitutive, and drawing attention to the ways in which the two interpenetrate and together mould the public sphere. The thesis begins with a historical overview of the trajectory of formal policing in Nigeria, then examines public understandings and representations of policing, before moving inside the institutional boundaries, considering in turn the human composition of the police, training and character formation, the way police officers do their work in Dutsin Bature, Nigerian police officers’ preoccupation with risk and the systemic effects of their efforts to mitigate it, and finally officers’ subjective perspectives on their work, their lived realities, and on Nigeria in an era of transition. These build together to suggest some conclusions pertinent to the theoretical perspectives.