Denning Law School
Huzaifa Muqadam
Jurisprudence & Legal Theory | Batch of 2024
Part A: Set Case (In light of Liberalism)
1. Introduction
In modern societies based upon Western Liberal thought, the concept of freedom is given immense
importance. The concept of freedom entails the freedom of expression, i.e. a person has a right to
freely express his or her political, social or religious thoughts. At the same time, the concept of
freedom entails the concept of personal autonomy and choice, that is to do an action (which is not
harming others), without any moral consequences. The Set Case of Dulgheriu v. London Borough of
Ealing is a classical example of debate revolving around the concept of freedom – the freedom of
the protestors to support pro-life arguments and the freedom of the abortion seekers (the users of
the centre) to exercise personal autonomy. I will be discussing the judgement of the Court of
Appeals in the set case from the liberal perspective and ……
2. Brief Facts of the case
(150 words)
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3. Questions for Jurists
This case raises important questions for a jurist and a legal theorist.
(a) From a liberal perspective, the concept of personal choice is unlimited and in what situations
personal freedom/ choice can be limited?
(b) From rights perspective, whether the concept of proportionality strikes a right balance between
the competing rights under ECHR (In the present case, the competing rights were Art. 8, 9, 10,
11)
4. Limiting Personal Freedom
4.1 Religion Based Law
Denning Law School
Huzaifa Muqadam
Jurisprudence & Legal Theory | Batch of 2024
In the earlier times, the justification for legal restrictions on individual rights was the fact
that the same was set out in the religious teachings. In other words, the law derived its legitimacy
from the religion. In that sense, a person was not allowed to dissent with the state as the state’s
actions were backed by religious authorities. In the context of the Set Case, a person would not be
allowed to undergo abortion, the same being shunned by majority of the religions. On the other
hands, the actions of the protestors would be welcomed, rather than criticized, because the same
were religiously motivated.
4.2 Utilitarianism
Jeremy Bentham considered that the sacred truth which law should try to achieve is the
maximum benefit for maximum number of people. In that sense, the utilitarian thought justifies
imposing restrictions on personal liberty if the same is in the larger interest of the community.
[Utilitarian arguments on abortion]
4.3 Chicago School of thought
[Explain JS Mill’s harm principle] [HLA Hart’s modification to the harm principle]
[viewpoint of liberal school of thought on abortion]
5. Role of Free Speech in Modern State
[explain article 10 and 11, along with its qualifications + Few cases] [Connect with neo-liberalism:
connection with modern pluralistic society]
Lord Neuberger: “The right to protest is a right to protest, right or wrong”
6. Reasonable Expectation of Privacy & its connection with abortion
- When is there expectation of privacy
- Privacy from a feminist lens
7. Balancing the Rights
Denning Law School
Huzaifa Muqadam
Jurisprudence & Legal Theory | Batch of 2024
While some of the human rights which are guaranteed under modern day constitutionalism are
absolute, the majority of the human rights are qualified. In that sense, the state is allowed to limit/
restrict the rights in certain circumstances.
- ECtHR method – proportionality [elaborate and explain – give one or two case examples][How
the courts utilized the concept of proportionality]
- UN/ Universal Declaration of Human Rights method – [research and explain]
- Personal Opinion
8. Abortion & Neo-Liberalism
- Abortion & personal choice
- Recent development – Overruling of Roe v. Wade by the US Supreme Court in Dobbs v. Jackson
- UK Abortion law – reasons + justifications
9. Conclusion
- Summary of the above
- Would you decide the case the same way? State your reasons?
- Appreciation of the role of liberalism in modern day
