Huzaifa Muqadam

Denning Law School

Jurisprudence & Legal Theory – 2024

Part A – Dulgheriu & Orthova v. London Borough of Ealing

1. Introduction (150 WORDS)

- Liberalism – a political, social and legal thought – shaping the modern day
society
- Liberalism – development of bodily autonomy
- Liberalism – pluralistic society & co-existence
- Set Case connection

2. Brief Facts (200 WORDS)

- Dulgheriu belonged to pro-life group and was part of group doing protest outside
abortion clinic
- Ealing issued PSPO prohibiting protest, maybe on the insistence of pro-choice
groups
- D has challenged the PSPO in the High Court claiming that the Ealing did not
give due regard to his Art 9, 10 and 11 rights
- High Court rejected his arguments, D appealed to COA
- COA rejected his appeal
- Case is about balancing competing rights – HRA demands the usage of
proportionality

3. History of Liberalism (150 WORDS)

- Started with enlightenment – idea of equality and liberty
- Bentham – no concept of unlimited liberty - liberty can be restricted on the basis
of utilitarianism
- Criticism of Bentham: It reduces morality to a mere calculation of pleasure and
pain, neglecting the importance of individual rights and justice.

4. Chicago School of Thought – Modern Day Harm Principle (150 WORDS)

- JS Mill: Laws and regulations should only be enacted to prevent harm to others,
not to enforce particular moral or religious beliefs.
- Criticism: What amounts to Harm is subjective

5. Application in the Set Case (150 WORDS)

- Abortion is a harm to the fetus or not? It depends if fetus is to be considered a
human being or not
- Dworkin in Life’s Dominion argues that there should be right to choice and if any
value is being attached to life, that is just because of spiritual / religious
arguments
Huzaifa Muqadam
Denning Law School
Jurisprudence & Legal Theory – 2024

- Counter Arguments: Harm to a fetus should be considered as a harm to an

individual. Just b/c that individual does not exist independently should not make
any difference
- Abortion is legal in UK

6. Pluralism and Right to protest (150 WORDS)

- 19th and 20th Century – Concept of human rights developed
- Enshrinement of human rights in Constitutions
- Human rights – pluralism lead to coexistence – interfaith cooperation, political
differences and dialogue
- Pluralism can provide solution to moral disagreement – pluralism is possible only
with freedom of right to protest
- Pluralistic view on Abortion can be seen in US courts – Roe v. Wade overruled
by Dobbs. Jackson

7. Abortion & Right to Protest (200 WORDS)

- Competing rights – proportionality is used in ECtHR jurisprudence (Para 69)
- In International law such as UDHR, the only barometer is principle of legality
- Right to religion includes a right to convince one’s neighbour (Barenkevich v
Russia) (para77)
- Couderc: “The right to protest is applicable not only to information or ideas that
are favourably received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb. Such are the demands of
pluralism, tolerance and broadmindedness without which there is no “democratic
society”. (para86)
- Over here – the protest was not simply causing irritation, annoyance, offence,
shock or disturbance to the users, but rather causing lasting psychological and
emotional harm of service users (para 89).

8. Conclusion (150 WORDS)

- Present case is an example of implementation of harm principle.
- Harm in modern day is to be seen from feminist lens – Harm can be emotional
or psychological as well.
- Harm principle, as given by Mill and Hart – important guiding principle for modern
legal theory