Abstract
This article uses Duncan Kennedy's analysis of legal reasoning to trace the discursive dynamics in DSD & NBV v Commissioner of Police for the Metropolis,
a recent English case on rape and human rights law. Against a doctrinal
background historically unreceptive to imposing civil liability on the
police in relation to their role in investigating and suppressing crime,
the article explores how the judge in DSD & NBV managed to
reach a verdict favourable to the complainant rape victims. In
particular, drawing on Kennedy's work on adjudication and legal
reasoning, the article shows how the judge, Green J, ‘worked’ the legal
materials, making a series of strategic moves which served to dislocate
and reconstitute the core and penumbra of the relevant legal norms. As a
result, a decision which might initially resemble judicial activism
became, in the course of the judgment, an apparently inevitable outcome
of the legal normative framework.
| Original language | English |
|---|---|
| Pages (from-to) | 601-621 |
| Number of pages | 21 |
| Journal | Transnational Legal Theory |
| Volume | 5 |
| Issue number | 4 |
| Early online date | 7 May 2015 |
| DOIs | |
| Publication status | Published - 2015 |
Keywords
- human rights
- legal reasoning
- police
- rape
- tort
Access to Document
- Full-text PDF (accepted author manuscript)
This is the author accepted manuscript (AAM). The final published version (version of record) is available online via Taylor & Francis at http://www.tandfonline.com/doi/abs/10.5235/20414005.5.4.601. Please refer to any applicable terms of use of the publisher.
