The Temporal Dimension of Self-Defence: Anticipation, Pre-emption, Prevention and Immediacy

Gill, T.D.

doi:10.1093/jcsl/krl018

Cited by 9 publications

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“…66 See https ://www.radio maryj a.pl/infor macje /s-piotr owicz -alarm uje-tk-stani e-sie-sedzi a-we-wlasn ejspraw ie/. 67 Gill (2006). 68 "The rights of Parliament have been infringed".…”

Section: The Nature Of the Defence (Or Self-defence) Against The Attamentioning

confidence: 99%

The Clash of Powers in Poland’s Rule of Law Crisis: Tools of Attack and Self-Defense

Matczak

2020

Hague J Rule Law

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Many people must be wondering how it is possible that Poland, not so long ago hailed for its exemplary transition from a communist dictatorship to a liberal democracy, could have so swiftly descended into authoritarianism via a crisis in the rule of law. The majority of commentators point to the size and ferocity of the attack on those mechanisms meant to safeguard the rule of law, whereas few focus on the weakness of their defence. This article attempts to redress that imbalance. The crucial facts of the Polish crisis are first presented, and the nature of both the attacks on the rule of law in Poland and the measures taken in its defence are then presented. In describing their defence, this article not only draws on Nicholas Barber's concept of the self-defence of institutions, but attempts to improve upon it in the light of the Polish crisis. Further in the article, I argue that one of the reasons for the success of the assault on the rule of law is the formalistic legal mindset that is prevalent among Polish lawyers. This mindset is characterized by a reductionism of the interpretative premises to be applied when deciding constitutional cases. This reductionism is conspicuous in the application of bright-line rules with no consideration of general constitutional principles. I argue that the development of a robust, non-formalistic methodology of legal decision-making is a prerequisite for a successful defence of the rule of law.

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“…66 See https ://www.radio maryj a.pl/infor macje /s-piotr owicz -alarm uje-tk-stani e-sie-sedzi a-we-wlasn ejspraw ie/. 67 Gill (2006). 68 "The rights of Parliament have been infringed".…”

Section: The Nature Of the Defence (Or Self-defence) Against The Attamentioning

confidence: 99%

The Clash of Powers in Poland’s Rule of Law Crisis: Tools of Attack and Self-Defense

Matczak

2020

Hague J Rule Law

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“…Yet they argue that the temporal test of the Webster formula must be broadly interpreted and that such 'interpretation must not restrict measures to mere reaction or interception of an attack, but rather includes actions of a truly anticipatory character in the face of a clear and concrete threat of an attack within the foreseeable future'. 66 Moreover, only a limited number of expansionist scholars share such a view. Most of them criticize the pure temporal dimension of the imminence requirement and propose a series of non-temporal criteria for assessing the imminence of an attack or, more fundamentally, the legality of an anticipatory action in self-defence.…”

Section: Arguments On the Scope Of The Notion Of Imminencementioning

confidence: 99%

The Law of Self-Defence and the New Argumentative Landscape on the Expansionists’ Side

Steenberghe¹

2016

Leiden Journal of International Law

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Recent developments in legal scholarship evidence that the orthodoxy on the law on the use of force has dramatically switched from a restrictivist to an expansionist perspective. This article seeks to analyse this recent shift, especially with respect to the law of self-defence, from an expansionist point of view. Its purpose is to examine the argumentative landscape which currently exists on the expansionists’ side about that law. It observes that such argumentative landscape has significantly changed, as expansionists tend to pay less attention to the traditional arguments based on state practice and increasingly rely on policy considerations in order to strengthen and to go deeper in their wide conception of the law of self-defence. It calls into question such increasing recourse to policy oriented arguments and argues that those arguments cannot justify alone any evolution of the law of self-defence, while emphasizing that state practice remains central in that respect and explaining the different ways through which this practice may play such a role.

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The State Conduct Element

Kreß

2017

The Crime of Aggression

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The Temporal Dimension of Self-Defence: Anticipation, Pre-emption, Prevention and Immediacy

Cited by 9 publications

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The Clash of Powers in Poland’s Rule of Law Crisis: Tools of Attack and Self-Defense

The Clash of Powers in Poland’s Rule of Law Crisis: Tools of Attack and Self-Defense

The Law of Self-Defence and the New Argumentative Landscape on the Expansionists’ Side

The State Conduct Element

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