Celebrating Duncan Kennedy’s scholarship: A ‘Crit’ analysis of DSD & NBV v Commissioner of Police for the Metropolis

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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 languageEnglish
Pages (from-to)601-621
Number of pages21
JournalTransnational Legal Theory
Volume5
Issue number4
Early online date7 May 2015
DOIs
Publication statusPublished - 2015

Keywords

  • human rights
  • legal reasoning
  • police
  • rape
  • tort

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