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The approach of English law towards duty of care has been inconsistent, illogical and unfair on the claimant - Case Study Example

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The Law of Tort is supposedly used to remedy damage inflicted where redress is not available in penal law. In cases of physical damage, law and jurisprudence have come up with rules that have made it relatively easier for claimants to seek redress, although it might be argued that recent decisions1 have actually raised the ante and made it more difficult for claims based on physical injury to prosper…
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The approach of English law towards duty of care has been inconsistent, illogical and unfair on the claimant
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Download file to see previous pages The author is of the belief that it is when one looks at the cases involving gender orientation discrimination that one sees best how English law is inconsistent, illogical and unfair on the claimant. The cases examined will demonstrate not only legal contortionism at play, but language contortionism as well. After all, as stated by Andrew Altman in the article Legal Realism, Critical Studies and Dworkin, (1986) the law is infused with irresolvably opposed principles and ideals, and this legal indeterminacy, as it is called, compels the judge to make a choice that is not dictated by law. Once-sacrosanct legal precepts are being dismantled, stare decisis as a doctrine is being reexamined, and the infallibility of the courts as repository of truth and justice is being questioned. The law is no longer a fabric of clearly-defined spectrums, but is rather a patchwork quilt of various shades of gray.
Taking this view is important in that it stimulates self-interrogation. It does away with the all-too-convenient givens of a legal system - that there is but one set of "correct" rules and that legal decisions are but logical outcomes of tested principles that are empirically-replicable. It aspires to expose the ideological content of the law obscured by layers upon layers of social conditioning by demonstrating how the large areas of legal indeterminacy provide fertile ground for the cooptation of the legal system to reinforce existing power arrangements.
This brings us to our discussion on tort cases involving gender discrimination. Conaghan (1996) states:
From a social perspective, feminists have argued that women suffer particular harms and injuries as women: their experience of pain and injury is indistinguishable, to a large extent, from the experience of men. This claim has at least two dimensions. On the one hand, pregnancy and childbirth, menstrual and/or ovulation pains are obvious examples of gender specific "harms". Men do not/cannot experience these traumas directly. On the other hand, the concept of gendered harm can also embrace those harms, which, although not exclusive to women in any biological sense, are risks which women are more likely to incur than men - the risk or rape, incest, sexual harassment, spousal abuse, or, more contentiously, the risk of harmful medical intervention.
By and large, there is no dearth of legislation prohibiting discriminatory practices against women. However, in practice, jurisprudence has made it difficult for women to raise tort-related claims. Certainly, there are cases that are cut-and-dried; for instance, when it is patently obvious that there is discrimination on the basis of gender. However, in this day and age, it is less likely to find a case wherein the discrimination is so obvious that it unquestionably amounts to an illegal act. One would be hard put to find an employer who would dare violate the stringent regulations against workplace-related discrimination, instance. There is a greater likelihood that the discrimination would be insidious, perhaps having to do with a careless statement loosely made that betrays the ...Download file to see next pagesRead More
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