VictorJuiz/thesis huggingface dataset:
The idea of judicial power, with special reference to Australian law

The aim of this thesis is to contribute to analytical Jurisprudence by studying in depth a concept that is characteristically legal and, at the same time, both a traditional term of descriptive political analyses and familiar in ordinary non-technical usage. The concept selected for study is "judicial power".
The intended point of the study is fourfold: (1) to illustrate a useful method of analytical jurisprudential enquiry: (2) to discover and illustrate the types of features, problems and lessons connected with the use of legal concepts, or of theoretical or commonsense concepts in a legal context: (3) to compare the approaches of descriptive theorists and of lawyers to those problems and features , and (4) to provide thereby some concrete evidence of the distinction (or absence of distinction) between legal thought, method and system, and the thought, method and system of commonsense and the purified commonsense no of descriptive theory.
A long introductory chapter seeks to explicate these particular aims, and to place them in the context of contemporary analytical jurisprudence. In the first place, it argues that the sharp distinction, drawn by Prof. H. L. A. Hart, between descruotive statements or "statements of fact", and legal statements or "conclusions from rules", is misleading and ought to be abandoned as a solution for the puzzle it was put forward to resolve. This argument, if correct, clears the ground for a more-or-less straightforward comparison between the "descriptive" use of the term "judicial power" by political analyst from Aristotle to modern times, and the use of the same term in "conclusions of law" arrived at by Justices if the High Court of Australia in interpreting the Australian federal Constitution. Moreover, in the course of the argument it is suggested that the general criterion of the correctness of statements, legal or otherwise, is the absence of further relevant questions that would lead to a revision of the statement, so that an analysis of the special feature of legal language should not rely on the simple distinction put forward by Hart, but should seek to identify the general and special conditions surrounding the making of correct statements in legal as compared with other realms of discourse. Several such conditions are suggested a priori; legal discourse is distinguished from commonsense discourse by (1) the desire for a system in affairs; (2) the need to resolve disputes by giving final answers; (3) the consequent definition of terms, and limitation on further questions; (4) the consequent possibility of authority and precedent, further limiting questions, and providing (5) an actual system of definite terms and relations on which to base a transition to more abstract concepts expressing generically various systematic relationships possible between definite terms. A conclusion of the whole thesis is that such features or conditions of legal discourse may readily be identified in the history of the Australian discussions of judicial power.
[Please see thesis for the complete abstract.]
Economic analysis of the doctrine of separation of powers : the independence of the judiciary

This thesis attempts to apply an economic approach to deal with the positive analysis of the doctrine of separation of powers, focusing on the judicial branch of government, and more specifically on the question: why do we find an 'independent' judiciary as an almost universal phenomenon in democratic countries?
The first part of the thesis sets the analytical framework - what I perceive as the broad and moderate view of the economic approach towards law - and defines the phenomenon of the independence of the judiciary to be examined - the gap between the structural independence of the judiciary and its substantive independence. It also includes a literature survey of previous work related to the economic analysis of the doctrine of separation of powers and the positive analysis of the judiciary.
A theoretical discussion is in the focus of the second part. It departs from a critical view of the Landes-Posner model of the independence of the judiciary, and proceeds to offer an alternative model. The main argument of the thesis is that, in contrast to the traditional view of separation of powers, we have an independent judiciary because it is in the interests of the government of the day to maintain one. Such an institution is delegated legislative and other powers, by which politicians can maximize their self-goal choices.
The third part of the thesis presents some empirical findings in an attempt to support the proposed positive model of judicial independence. A statistical approach is taken to investigate the decisions whether to promote judges from the English Court of Appeal to the House of Lords, shedding new light on attitudes of British governments towards the independence of the judiciary. A more descriptive-narrative approach is taken in the final chapter, portraying and analyzing the relations between the Israeli judiciary and the other branches of government. It is argued that the analysis of these relations lends support to the delegation theory of the independence of the judiciary.
The relation between pre-trial executive improprieties and the outcome of the criminal trial

The issue of the implications which pre-trial police or prosecutorial improprieties should have for a criminal trial has not been the subject of serious consideration in English law. The courts have acknowledged that such improprieties may lead in certain circumstances to the exclusion of evidence or to a stay of proceedings, but have not properly identified the underlying rationales and principles. I expose the deficiencies in the existing law and indicate the path to reform.
My main argument is that where pre-trial executive impropriety is established, the court should consider what I have called the principle of legitimacy. This principle is premised on a recognition that criminal justice is concerned not only with the conviction of the guilty but also with the moral integrity of the criminal process. Thus, a decision as to whether a pre-trial executive impropriety should lead to exclusion or a stay (as the case may be) should be reached by weighing (1) the public interest in the conviction of the guilty against (2) the public interest in the moral integrity of the criminal process. If (2) outweighs (1) then the evidence should be excluded or the proceedings stayed (as the case may be).
The application of the legitimacy principle is discussed in detail, and the relation between exclusion and a stay is explained. I identify a number of guidelines which are of relevance to the application of the legitimacy principle, and some theoretical issues associated with the concept of judicial discretion are explored.
The specific issue of the application of the legitimacy principle to determine the circumstances in which pre-trial delay by the executive should lead to a stay of proceedings is addressed. The specific problem of entrapment is also examined, and it is suggested that English law ought to recognise a defence of entrapment.
Hard' cases in 'wicked' legal systems

A central debate in jurisprudence concerns the nature of the judicial obligation in 'hard' cases ones that turn on con- tested points of law. The legal positivists hold that judges have to exercise a discretionary power, not ultimately constrained by law, to decide such cases. Ronald Dworkin has argued that the decision of such cases is determined by law: judges must apply a 'soundest theory' which explains and morally justifies the existing law. Positivists respond that 'wicked' legal systems ones which are the instrument of a repugnant moral ideology are a counterexample to Dworkin. I set out this debate and then evaluate these rival positions in a case study of judicial interpretation in the South African legal system, which is the standard example of a wicked one.
I argue that, in the historical and political context of a the South African legal system (Ch.2), the first part of the study (Chs.3,4,5) shows that positivist ideas not only fail to assist judges in a wicked legal system, but make things worse. I argue that the rest of the study (Chs.6,7,) shows how judges do better who adopt the advice that Dworkin gives. I also suggest that their approach can only be stop- ped at the cost of great damage to a legal system and that this should lead us to take seriously ideas put forward by Lon Fuller.
The prerogative of the Crown in external affairs and constituent authority in a Commonwealth monarchy

Whatever may be the policy of a (declaratory) power in the Crown conclusively to certify the limits of its territorial sovereignty, and whatever be the ultimate fate of such a power [linked, as it is in part, to the policy of. and indeed the existence of, a (constitutive) prerogative of cession] still at all events the constituent function of the Crown is founded upon the (constitutive) prerogative of annexation, as distinct from any declaratory power. To annexation the will and pleasure of the Crown is, as a matter of constitutional law, both sufficient and necessary, without regard to any consideration of international law. The necessity of Her Majesty's pleasure is supported inter alia by the case of Staples v. The Queen (1899) (unreported), heard on application to the Privy Council for leave to appeal from the High Court of Matabeleland. A full report of the proceedings in both courts, including argument and reasons, being appended; the Privy Council deciding that territory remained foreign notwithstanding destruction by armed force of the previous native sovereignty and ensuing complete control by the Crown...
The prerogative of legislation is considered; semble a grant of representative institutions may be held subject to a reservation of the prerogative of legislation contained in an earlier but governing instrument. A prerogative of the Crown to legislate for the subject even in foreign territory, wherever the Crown has assumed a jurisdiction, is supported by limited judicial authority whose correctness is doubted. The true extent is considered of the continuance of existing laws in conquered and ceded territories.
The establishment of legislative institutions is considered. The incidents of these institutions are elaborated upon, and particularly the privileges of legislative bodies erected by the Crown. An account is given of the events in Newfoundland in August, 1838, giving rise to the leading case of Dr. Kielley in the Courts of Newfoundland, and, on appeal, in the Privy Council, laying down the rule that only necessary incidents are enjoyed at common law and not the lex et consuetude parliament! as known at Westminster: the rule herein laid down being applied more particularly against a power of committal for contempt. Earlier colonial and Privy Council precedents in the opposite sense are discussed. The rule is suggested to be one dictated by considerations of policy simply, and not determined by any particular view of the true basis of privilege in England. If anything, assimilation of the lex et consuetudo parliamenti to the common law serves as an argument for its passage to the colony, while attribution to lost statute might tend to establish peculiarity to England and colonial inapplicability; but the rule of inapplicability may be applied in any event.
[Please see thesis for the complete abstract]
Moral rights and creative freedom : a study of post-communist law reform in Russia

This thesis explores the relationship between law reform and social transformation in post-socialist countries. It deals with the doctrine of the moral right of the author, an aspect of copyright law that seeks to protect the personal interests of an author or artist in his creative work. The thesis argues that moral rights can make an important contribution to democratisation in the post-socialist world. The doctrine of moral rights helps to provide adequate and appropriate protection for creative freedom, an unequalled source of diversity and integrity in the realm of ideas - the very essence of democratic values.
In spite of their importance for post-socialist countries, moral rights have not been a focus of copyright reform. Rather, new copyright laws reflect the pressure to conform to international standards, especially those set by the World Trade Organisation (WTO). The WTO considers copyright to be an area of commercial regulation with crucial implications for the international trade regime; its personal and cultural aspects, especially moral rights, are viewed with suspicion. As a result, moral rights have not been emphasised in post-socialist law reform, and, more generally, there has been little investigation of their implications for the special needs of transitional and economically less-developed countries.
To illustrate this situation, the thesis undertakes a detailed study of moral rights in Russia. It shows that Soviet Russia had developed legal protection for moral rights in its copyright law. However, the extreme censorship practices of an autocratic state meant that moral rights had little practical value for authors and artists. Instead, their potential contribution to creative freedom remained virtually unrealised. In post- Communist times, law reform has focussed on bringing Russian copyright law into line with WTO requirements. However, given the importance of creative freedom for social change in post-Communist Russia and the special suitability of moral rights doctrine to protecting creativity, Russia should now reconsider its treatment of moral rights.
This thesis argues that moral rights should be an integral part of copyright law and policy in all post-socialist countries. It goes on to suggest that the development of moral rights after socialism will be facilitated by new conceptual approaches to the doctrine. In particular, a consideration of the manipulative treatment of authors and artists, and the passive role of copyright law in socialist society shows moral rights to be closely aligned with freedom of creativity. The thesis proposes a "new" model of moral rights for post-socialist societies, based on the close relationship between the moral rights of authors and the human right to free creative expression. This model is not only relevant to the post-socialist world; it also provides a new way of looking at moral rights in the international community, which faces an authentic, though largely unacknowledged, need to affirm the humanistic values inherent in culture and creativity.
Regulators as rule makers : the formation of the conduct of business rules under the Financial Services Act, 1986

This thesis is a study of rule making by regulators operating under the Financial Services Act 1986. It examines the formation of one set of rules, the conduct of business rules, which regulate firms authorised under the Act to conduct investment business. The thesis focuses on rule making by the core regulators, the Securities and Investments Board and the self-regulatory agencies which authorise and regulate investment firms.
The thesis considers firstly from a theoretical stance what rule making consists of, what issues fall to be decided when a rule is being formed, what the implications of different rule making decisions might be, and what factors would influence that decision. In order to discuss rules and rule making with some degree of analytical rigour, the thesis develops a framework for analysing rules which identifies four dimensions to rules, substance, status, character and structure.
The thesis then studies the rule making of these agencies empirically in an attempt to develop a more sophisticated and conceptual understanding of this regulatory function. It first explores the reasons why the regulation was instituted, and why the institutional structure combining statutory and "self regulation was created. It then examines the formation of the initial rules and the reasons for the change to the new rule system which was introduced shortly after the initial rules were introduced. It analyses the formation and nature of the principles, core rules and self-regulatory rules made under the new powers. Finally it studies the formation of rules in particular substantive areas, the soft commissions rule and the rules regulating the retailing of some investment products.
Throughout this study, the thesis examines the use which has been made of different types of rules within this system. It considers the different functions of the rules and identifies several factors which have influenced their formation. These include the substantive area in which the rules operate, the institutional framework and the dynamics of the relationship between the regulators, the political context, and the norms and perceptions of the regulators, regulated and the wider community. It also examines the manner in which rule makers have considered the implications of using rules of different types. These include the use of rule type to confer discretion or decisional jurisdiction between both the different regulators and the regulators and the regulated, to affect interpretation and compliance, and to achieve predictability and flexibility of the rule system. The thesis concludes that although rule making by regulatory agencies is a relatively unexplored aspect of their functions, its study can be profitable for both those interested in regulatory agencies in general, and in financial services regulation in particular.
Companies before the European Court of Human Rights

This is a study of the European Court of Human Rights' doctrinal response to complaints for protection under the European Convention on Human Rights submitted by or on behalf of companies. Companies indisputably enjoy ECHR protection in principle yet the protection of persons closely tied with for-profit and corporate business enterprise is sometimes doctrinally problematic.
The thesis has two main objectives.
First, it analyses the Court's reasoning in three groups of cases in which corporate human rights litigation has presented particular problems of treaty interpretation: 1) The extent to which shareholders are 'victims' (Article 34) when they complain of measures that formally have befallen their companies. 2) Whether companies are protected by provisions that were conceived in relation to the needs of natural persons outside the business context (select areas under Articles 8(1), 10(1) and 41 are considered). 3) Which standard of review to be applied by the Court when companies allege that public regulation of their activity violates Articles 8 and 10. The case law is streamlined in a minimalist fashion, which obscures the Court's rationale. The thesis construes the structural framework within which the Court operates, and seeks to explain how the relevant case law is largely coherent when considered on these grounds.
Second, the Court's response is used for highlighting crucial aspects of the Convention system that are aptly revealed but which extend beyond the company context. Three aspects, which are suitable for further analyses, are essentially brought to the fore: 1) The Convention as a European liberal project, a characteristic that makes it stand out from the bulk of international human rights law. 2) The complex nature of the Convention's object and purpose, and, consequently, the Court's teleology. 3) The collective and economic aspects of the Convention's civil and political rights.
Just war or just peace? : humanitarian intervention and international law

The question of the legality of humanitarian intervention is, at first blush, a simple one. The Charter of the United Nations clearly prohibits the use of force, with the only exceptions being self-defence and enforcement actions authorized by the Security Council. There are, however, long-standing arguments that a right of unilateral intervention pre-existed the Charter. The thesis begins with an examination of the genealogy of this right, and arguments that it may have survived the passage of the Charter, either through a loophole in Article 2(4) or as part of customary international law. It has also been argued that certain 'illegitimate' regimes lose the attributes of sovereignty and thereby the protection given by the prohibition of the use of force. None of these arguments is found to have merit, either in principle or in the practice of states.
A common justification for a right of unilateral humanitarian intervention concerns the failure of the collective security mechanism created after the Second World War. The thesis therefore examines Security Council activism in the 1990s, notable for the plasticity of the circumstances in which the Council was prepared to assert its primary responsibility for international peace and security, and the contingency of its actions on the willingness of states to carry them out. This reduction of the Council's role from substantive to formal partly explains the recourse to unilateralism in that decade, most spectacularly in relation to the situation in Kosovo. Crucially, the thesis argues that such unilateral enforcement is not a substitute for but the opposite of collective action. Though often presented as the only alternative to inaction, incorporating a 'right' of intervention would lead to more such interventions being undertaken in bad faith, it would be incoherent as a principle, and it would be inimical to the emergence of an international rule of law.
The recognition and enforcement of debts under the statutes of Acton Burnell (1283) and Merchants (1285), 1283-1307

The Recognition and Enforcement of Debts under the statutes of Acton Burnell (1283) and Merchants (1285), 1283-1307
Christopher McNall (Magdalen College)
Thesis submitted for the degree of D.Phil
Trinity Term 2000
This thesis is about the statutes of Acton Burnell (1283) and Merchants (1285) which provided for the voluntary registration of debts before specially established registries, and sophisticated measures of execution against the defaulting debtor's person, goods, and lands.
The introduction describes the sources for this thesis; the London Recognisance rolls; the certificates of statute merchant into the Chancery; the Plea Rolls of the Royal courts and of local - principally, borough - courts.
Chapter 1 describes the background to the statutes, in particular the recoverability of debts before Royal, local, and mercantile courts before 1283.
Chapter 2 explores the immediate legal and political contexts of Acton Burnell. A draft of the statute is discussed and compared with the statute. The need for reform in 1285 is assessed, setting Merchants alongside Westminster II n c.39. The provisions under both statutory schemes for recognition and enrolment of the debt, and the initiation of execution are described.
Chapter 4 examines execution against the debtor's movable property. The statutory appraisal, sale and delivery of the debtor's goods are examined and compared both with the draft provisions and common law modes of execution. Appraisers' liability under the statutes is examined. Competing execution against the same debtor is investigated.
Chapter 5 examines the debtor's arrest and detention, gaolers' statutory liability, statutory costs and damages. It investigates the operation of the statutes once the debt had been satisfied, the mechanisms for obtaining the debtor's release, and challenges to unlawful imprisonment via the writ audita querela.
Chapter 6 examines execution against the debtor's immovable property. The chapter discusses the 'extent' by which the debtor's lands were to be delivered to the creditor under Merchants, and the nature of the creditor's holding of his debtor's immovables (the tenancy 'by statute merchant').
This thesis is 92,800 words in length, excluding tables and appendices