Disputationer 2017
Andrea Iossa
Collective Autonomy in the European Union – Theoretical, Comparative and Cross-border
Perspectives on the Legal Regulation of Collective Bargaining
Datum för disputation: onsdagen den 27 september 2017
Fakultetsopponent: Associate Professor Aristea Koukiadaki, University of Manchester
Ämne: arbetsrätt
Abstract
‘Collective Autonomy in the European Union’ explores the question of collective autonomy by investigating the relationship between collective bargaining and legal regulation and its current evolution in the national contexts and in the EU internal market. The thesis aims at achieving a comprehensive understanding of the notion, function and exercise of collective autonomy and collective bargaining, and it argues that collective autonomy and collective bargaining in contemporary Europe present challenges that alter their basic features. To this end, the thesis undertakes a multifaceted analysis integrating three perspectives: a theoretical perspective analysing and combining the conceptual elements of collective autonomy and collective bargaining as defined in industrial relations theories, labour law theories, and in the discourses on global labour rights; a comparative perspective analysing how collective autonomy and collective bargaining have found legal regulation in the Italian and Swedish labour law and industrial relations contexts; a cross-border perspective examining how the EU regulation of the internal market freedoms of establishment and to provide services impacts on the features of collective autonomy and collective bargaining.
By combining elements of international, European and comparative labour law, EU internal market law, and industrial relations, this thesis explores the unique features of collective autonomy and collective bargaining as socio-economic mechanisms having a normative power, whose functioning is however influenced by legal dynamics. Eventually, it examines the transformation that the foundations of collective autonomy and collective bargaining undergo in relation to the challenges deriving from both the processes of company-level decentralisation and the dynamics of the cross-border scenarios in the EU internal market. Ultimately, the thesis contributes to advancing the understanding of the foundations of collective autonomy and to exploring its operations beyond national borders.
Anna Nilsson
Minding Equality
Compulsory Mental Health Interventions and the CRPD
Datum för disputation: fredagen den 9 juni 2017
Fakultetsopponent: professor Peter Bartlett, University of Nottingham, Storbritannien
Ämne: mänskliga rättigheter
Abstract
This study delineates the permissible scope for compulsory mental health interventions under the Convention on the Rights of Persons with Disabilities (CRPD). It was initially triggered by two competing positions within the current debate over the future of coercive psychiatry; a practice that is still omnipresent among states worldwide. According to one position, defended by the CRPD Committee among others, compulsory mental health care eo ipso violates the prohibition of discrimination. According to the competing position, supported by the vast majority of the States Parties, resort to compulsion is sometimes necessary to protect the health and life of the person concerned, and to prevent violence against others.
This thesis explores the impact of the prohibition of disability-based discrimination on the lawfulness of compulsory mental health care, and argues that the line between the lawful and the unlawful can be identified via proportionality reasoning. Drawing on the works of Robert Alexy, I develop a framework for proportionality assessments within the non-discrimination context. My framework can assist States Parties to evaluate their mental health laws, and it provides useful input on how such laws may be adjusted to better comply with the Convention. In addition, this study engages with questions concerning what it is that makes state practices falling within the definition of discrimination so bad, and thereby contributes to the vibrant debate over the normative foundation of discrimination law.
Niklas Selberg
Arbetsgivarbegreppet och arbetsrättsligt ansvar i komplexa arbetsorganisationer
En studie av anställningsskydd, diskriminering och arbetsmiljö
Datum för disputation: tisdagen den 30 maj 2017
Fakultetsopponent: docent Mats Glavå, Göteborgs universitet
Ämne: civilrätt
Abstract
This thesis is about the concept of employer in Swedish labour law. Four complex work organisations are investigated: bilateral, groups of companies, contract work/supply chains and temporary agency work. Three areas of law are investigated; employment protection, anti-discrimination and health and safety law. The study is a doctrinal analysis regarding Swedish law.
Mareike Persson
Caught in the middle? Young offenders in the Swedish and German criminal justice systems
Datum för disputation: onsdagen den 24 maj 2017
Fakultetsopponent: universitetslektor Monica Burman, Umeå universitet, Sverige
Ämne: straffrätt
Abstract
How should we respond to a criminal offence committed by a young person? It is obvious that this i a very complex question. Multiple factors play important roles: the offence itself, but also the juvenile's background in terms of education, socialization, prior convictions, etc. Every case is unique, but the criminal legal system has to follow the principles of legal certainty and predictability. A legal response to juvenile offending is a consequence of the criminal action, but it also has to consider the lesser maturity and greater vulnerability of young offenders. This dualism makes a trial against a young perpetrator complicated. The ideology of culpability and punishment emphasizes the seriousness of a certain offence. The ideology of welfare accentuates the social situation of the young offender and his or her individual needs. Juvenile criminal justice systems seem to face contradictory demands: from the law in a strict sense and from society at large. They are caught in the middle: between the culpability for the offence and the best interests of the young person.
This thesis investigates the tension(s) between "welfare" and "justice" that the juvenile criminal justice system has to deal with (the "welfare/justice clash") in Sweden and Germany. After exploring the differences between young and adult offenders which underlie the welfare/justice clash, the project presents an in-depth investigation of the Swedish and German juvenile criminal justice systems. Thus, this study is comparative in its approach. To illustrate the different forms the welfare/justice clash takes in the Swedish and the German juvenile criminal justice systems, I focus on these systems' guiding principles, legal responses and sentencing rules, procedural rules and safeguards, and on the figures in the juvenile courtroom. The investigation is not limited to a doctrinal study. I also present an empirical study, in the form of participant observations in the juvenile courtroom and semi-structured interviews with judges and public prosecutors from both countries, to gain insight into legal practice. The study of the two juvenile criminal justice systems shows that the theoretical welfare/justice clash is visible in the books as well as in action, irrespective of the different approaches towards young offenders these countries pursue. However, this does not appear to give rise to any major problems in legal practice, as surprising as this may be. The practitioners in the juvenile courtroom seem to be able to balance and respect both ideologies.
In the analysis, I suggest an explanation for the ability of the juvenile criminal justice systems in Sweden and in Germany to function in spite of the tensions highlighted in the previous chapters. Here, I switch perspectives from an internal view of the juvenile criminal justice system to an external view. I suggest abandoning the purely legal dogmatic (justice) approach and the purely welfare-based or social approach and instead combining elements of them in an approach to juvenile criminal justice that understands it as a system in its own right.
Amin Parsa
Knowing and Seeing the Combatant
War, Counterinsurgency and Targeting in International Law
Datum för disputation: tisdagen den 16 maj 2017
Fakultetsopponent: professor Wouter Werner, Vrije Universiteit Amsterdam, Nederländerna
Ämne: folkrätt
Abstract
Knowing and Seeing the Combatant investigates how does the US counterinsurgent forces make distinction between civilians and combatants during targeting practices? This dissertation is specifically focused on the visual dynamics of the contemporary targeting and as such argues that the insurgent's withdrawal from the obligation of visual self-identification as targets by not wearing military uniform reveals a complicated logic of target-ability in the laws of armed conflict (LOAC).
Focusing on the legal, political and visual functions of the military uniform, this dissertation argues that LOAC legitimises lethal violence by reliance on a particular conception of human target that can be summarised as a nexus of 'knowledge - contribution to adversarial militarised willpower - and Vision - material modes of visibility and invisibility'. This nexus of targetability, I show, is exclusively enacted by the military uniform of LOAC. The absence of the military uniform in insurgencies and the subsequent turn of the US military towards the use of technologies of visualisation for targeting purposes - in particular disposition matrix - are more than simply being ways of neutralising the invisibility of the insurgents. They are, as argued here, technologies deployed by the US to not only liveralise the geography, temporality or the ethics of targeting, but also to imply a claim of legitimacy for an expansive recasting of civilians as targets of lethal force. One function of the new technologies is indeed to make discriminate targeting, in its literal sense, possible. Yet this research is concerned with the capacity of these visual practices to present that targeting as a legitimate and legally defensible violence.
Ellika Sevelin
Facts in the Law: A Legal Positivistic Conception of the Law/Fact Distinction
Datum för disputation: fredagen den 28 april 2017
Fakultetsopponent: Associate Professor Giovanni Tuzet, Bocconi University, Italien
Ämne: allmän rättslära
Abstract
This thesis concerns the law/fact distinction in law. The interest it takes in the distinction is not practical, but conceptual. It more specifically concerns the questions: "What is it that is conceptually assumed about the law when law is distinguished from fact by the use of the law/fact distinction and, in particular, is this assumption compatible with legal positivism?" It approaches the questions both descriptively and normatively.
Descriptively, it sets out to structure the existing scholarly discussions on the law/fact distinction into different conceptions, which are exemplified and analyzed. It finds that the existing conceptions of the law/fact distinction connects this distinction to the application of law to non-law. Further, it finds that the vast majority of conceptions of the law/fact distinction entails a conceptual assumption of the law that is not compatible with legal positivism.
The thesis further presents a new theory of the law/fact distinction, which accounts for the conceptual assumptions found in the existing conceptions and which is compatible with legal positivism. In order to do so the extended concept of law is introduced. On the extended concept of law, law is defined as Primary and Secondary Rules, Legal Representations of the Non-law (adjudicated facts) and Legal Conclusions. Thus, the theory stands out from earlier conceptions of the law/fact distinction in that it conceptualizes the adjudicated facts as part of the law, rather than as something distinct from law. Adjudicated facts are conceptualized as legal representations of the legally relevant non-law. An adjudicated fact entails that the court shall proceed as if it corresponds to the actual state of the non-law. Further, an adjudicated fact is claimed to be, directly or indirectly, conditional for a legal conclusion. Hence, it is clamed that it can be subsumed under a legal rule.
Matilda Arvidsson
The Subject in International Law
The Administrator of the Coalition Provisional Authority of Occupied Iraq and its Law
Datum för disputation: tisdagen den 24 januari 2017
Fakultetsopponent: docent Frédéric Mégret, McGill University, Kanada
Ämne: folkrätt
Abstract
In the wake of the war and occupation of Iraq, 2003–2004, international legal scholars struggled to understand and adequately describe the event and the law surrounding it. This study takes that situation of uncertainty as its point of departure, and it unfolds through an analysis of the material conditions and linguistic–rhetoric and affective–psychic registers through which the Administrator of the Coalition Provisional Authority (CPA) of occupied Iraq emerged as a legal subject in response to the international law of belligerent occupation and related law and policy. While pursuing the broader aim of theorizing the subject in international law, the study tells the story of how the Administrator of the CPA formulated a position for itself within the contemporary international law of belligerent occupation: the Lieber Code position. A historical source of law – domestic legislation regarding warfare and occupation originating from 1863 and the American Civil War – thus resurfaced as part of an international legal argument during the occupation of Iraq. Through an analysis of the occupation of Iraq I seek to understand how the Administrator was subjectified, what consequences this subjectification had, and how this example of subjectification alters our understanding of international law (if it does at all). This study seeks to understand the position that subjects like the Administrator occupy in international law. In doing this, I make a case for understanding international law and subjects as co-constituive. This is a subject who does not necessarily possess international legal personality but nonetheless thinks and produces international law through its everyday life and in doing so constitutes the substratum of what international law is and does.
In terms of theory and method, the study draws on feminist legal jurisprudence and philosophy, psychoanalysis, and international law and its histories. It employs as its material the legal acts of the CPA in conjunction with a wide range of documents relating to the international law of belligerent occupation and related fields of law and policy specific to the occupation of Iraq.
The main motivation and aim of the study is to engage critically with the field of the international law of belligerent occupation, scholarly debates related to it, and with the occupation of Iraq in order to make a contribution to the understanding of that event and its law. Moreover, its aim is to contribute to a jurisprudence of the subject in international law: to point to the importance of attending to subjects – as distinct from entities with international legal personality – when we, as international legal scholars and practitioners, struggle to understand, adequately describe, and respond to the events and the laws of our time.
