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Lookup NU author(s): Dr Nikki Godden-Rasul, Professor Colin MurrayORCiD
This work is licensed under a Creative Commons Attribution 4.0 International License (CC BY 4.0).
Accounts of human beings as vulnerable, advanced by Judith Butler and Martha Fineman, have provided powerful reposts to accounts of liberal individualism in recent decades. Concurrently, the European Court of Human Rights has developed an account of positive obligations upon the Convention states, often on the basis of obliging public authorities to address particular vulnerabilities. This recognition of positive obligations as inherent within particular rights began in the context of Articles 2 and 3 ECHR, but has latterly become a prominent feature of Article 8 jurisprudence. These developments reflect elements of different theoretical accounts of vulnerability but lack a coherent approach to the human subject. The resultant confusion over the organising basis of this jurisprudence has prompted subtle changes in the UK Supreme Court’s jurisprudence, as it reacts to the increasing prominence of vulnerability. To explore this shift, we evaluate two case studies in which positive obligations have been imposed on the police, first in relation to public order in the context of inter-community tensions in Northern Ireland (DB v Chief Constable of Police Service of Northern Ireland) and secondly in relation to police investigations in the context of serial sexual offending (Commissioner of Police of the Metropolis v DSD). This jurisprudence illustrates the challenges for domestic courts in reflecting developments at Strasbourg and how some domestic judges are supplying their decisions with rationalisations based on vulnerability which are lacking in the European Court’s case law.
Author(s): Godden-Rasul N, Murray C
Publication type: Article
Publication status: Published
Journal: International Journal of Law in Context
Year: 2023
Volume: 19
Issue: 4
Pages: 597-618
Print publication date: 01/12/2023
Online publication date: 07/11/2023
Acceptance date: 04/09/2023
Date deposited: 05/09/2023
ISSN (print): 1744-5523
ISSN (electronic): 1744-5531
Publisher: Cambridge University Press
URL: https://doi.org/10.1017/S1744552323000277
DOI: 10.1017/S1744552323000277
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