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.
- human rights
- legal reasoning