On the Law of Self-Defense (And Why Transparency About our Value-Judgments is the Missing Piece in Today's Justice Reform Debate)

2021 ◽  
Author(s):  
T. Markus Funk, PhD
Keyword(s):  
Value Judgments ◽  
Self Defense ◽  
The Law ◽  
Reform Debate

Military Professionalism and Humanitarian Law

2018 ◽  
Author(s):  
Yishai Beer
Keyword(s):  
International Law ◽  
Humanitarian Law ◽  
New Paradigm ◽  
The Core ◽  
Humanitarian Mission ◽  
Self Defense ◽  
Professional Perspective ◽  
The Law ◽  
Preemptive Strike ◽  
Military Professionalism

This book seeks to revitalize the humanitarian mission of the international law governing armed conflict, which is being frustrated due to states’ actual practice. In order to achieve its two aims—creating an environment in which full abidance by the law becomes an attainable norm, thus facilitating the second and more important aim of reducing human suffering—it calls for the acknowledgment of realpolitik considerations that dictate states’ and militaries’ behavior. This requires recognition of the core interests of law-abiding states, fighting in their own self-defense—those that, from their militaries’ professional perspective, are essential in order to exercise their defense. Internalizing the importance of existential security interests, when drawing the contours of the law, should not automatically come at the expense of the core values of the humanitarian agenda—for example, the distinction rule. Rather, it allows more room for the humanitarian arena. The suggested tool to allow for such an improved dialogue is the standards and principles of military professionalism. Militaries function in a professional manner; they respect their respective doctrines, operational principles, fighting techniques, and values. Their performances are not random or incidental. The suggested paradigm surfaces and leverages the constraining elements hidden in military professionalism. It suggests a new paradigm in balancing the principles of military necessity and humanity, it deals with the legality of a preemptive strike and the leveraging of military strategy as a constraining tool, and it offers a normative framework for introducing deterrence within the current contours of the law.

Excusable consent in duress

Legal Studies ◽  
2017 ◽  
Vol 37 (3) ◽  
pp. 418-436
Author(s):  
Alexander F H Loke
Keyword(s):  
Theoretical Basis ◽  
Analytical Framework ◽  
Contract Law ◽  
Value Judgments ◽  
Additional Element ◽  
The Law ◽  
Will Theory

While the illegitimate pressure theory provides a more satisfactory theoretical basis for duress in contract law than the overborne will theory, it insufficiently addresses why a victim who has given deliberated consent should be excused from contractual responsibility. The paper proposes that the additional element of ‘excusable consent’ enhances the current analytical framework: first, by recognising that the law makes value judgments of both the threatening party's actions and the victim's response; secondly, by lightening the burden of the illegitimate pressure element and providing it greater focus; and, thirdly, by providing a better fit for considerations such as ‘no practical alternatives’ that strain the existing framework.

WITCH-KILLINGS AND THE LAW IN UGANDA

2020 ◽  
Vol 35 (2) ◽  
pp. 270-296
Author(s):  
Rukundo Solomon
Keyword(s):  
Pragmatic Approach ◽  
Physical Force ◽  
Loved One ◽  
Delicate Balance ◽  
Self Defense ◽  
The Law ◽  
The Witch

AbstractPeople believed to be witches have been killed in many parts of Africa since precolonial times. Belief in witchcraft persists today among many people, occasionally resulting in the killing of the suspected witch. The killer views witchcraft as an attack similar in nature to the use of physical force and therefore kills the witch in an attempt to end the perceived attack. As it stands today, the law in Uganda fails to strike a balance between the rights of the deceased victim violated through murder and those of the accused who honestly believes that he or she or a loved one was a victim of witchcraft. This article argues that the defenses that are currently available—mistake of fact, self-defense, insanity, and provocation by witchcraft—are insufficient, as they fail to strike that delicate balance. A more pragmatic approach to the issue of witch-killing, one that deals with the elimination of belief in witchcraft, is necessary.

scholarly journals THE DOCTRINE OF BENEFIT AND BURDEN: REFORMING THE LAW OF COVENANTS AND THE NUMERUS CLAUSUS “PROBLEM”

2018 ◽  
Vol 77 (1) ◽  
pp. 72-96
Author(s):  
Chris Bevan
Keyword(s):  
Indirect Method ◽  
Theoretical Issue ◽  
Recent Reform ◽  
Numerus Clausus ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Reform Debate

AbstractThe doctrine of benefit and burden – an indirect method for enforcing the burden of positive freehold covenants – developed as an exception the strict Austerberry rule that the burden of positive covenants cannot bind successors directly at law. Three recent Court of Appeal cases (Davies v Jones; Wilkinson v Kerdene and Elwood v Goodman) confirm the continued existence and application of the doctrine but also reveal its deficiencies and limitations. This article explores the contemporary application of the doctrine, identifies its theoretical, historical and elemental frailty and, drawing on recent reform proposals of the Law Commission, highlights the case for reform. In so doing, this article argues that a vital theoretical issue has been overlooked in the reform debate: the numerus clausus principle.

Collective Security and Collective Self-Defense Under the Charter of the United Nations

1948 ◽  
Vol 42 (4) ◽  
pp. 783-796 ◽  
Author(s):  
Hans Kelsen
Keyword(s):  
United Nations ◽  
International Law ◽  
League Of Nations ◽  
Individual Member ◽  
Collective Security ◽  
Enforcement Action ◽  
Self Defense ◽  
The United Nations ◽  
The Law ◽  
The Individual

Collective security is the main purpose of the United Nations, just as it was the main purpose of its predecessor, the League of Nations. What does collective security mean? Under general international law the principle of self-help prevails. The protection of the legal interests of the states against violations on the part of other states is left to the individual state whose right has been violated. General international law authorizes the state, i.e., the individual member of the international community, to resort, in case of a violation of its rights, to reprisals or war against that state which is responsible for the violation. Reprisals and war are enforcement actions. Insofar as they are reactions against violations of the law, and authorized by it, they have the character of sanctions. We speak of collective security when the protection of the rights of the states, the reaction against the violation of the law, assumes the character of a collective enforcement action.

scholarly journals Algunas consideraciones sobre la independencia de la justicia

2012 ◽  
pp. 109-114
Author(s):  
María Fernanda Murillo Delgadillo
Keyword(s):  
Judicial Independence ◽  
Armed Groups ◽  
Inherent Value ◽  
Self Defense ◽  
Public Servant ◽  
The Law

La independencia de la justicia se concibe como un valor inherente a la función del servidor público, representa una cualidad y un derecho que los Estados deben garantizara sus administrados. Colombia es un país generador de agresiones contra la justicia, las que se acrecientan por la presencia de grupos paramilitares que, pese a estardesmovilizados, tienen bajo su control gran parte del territorio patrio. En este informe veremos la concepción, “el deber ser” de la independencia judicial, y después abordaremos la problemática de las Autodefensas Unidas de Colombia (AUC), algunas manifestaciones de su presión y los tipos de procesos en los cuales interfieren, en cuatro ciudades, Bogotá, Cali, Medellín y Tunja. Palabras claveIndependencia judicial, intromisión,prensa, grupos armados al margen de la ley, paramilitarismo.AbstractThe independence of justice is seen as an inherent value to the role of public servant and represents a quality and right that States must guarantee to their people. Colombia is a country that generates attacks against justice, aggressions that are enhanced by the presence of paramilitary groups which, despite being demobilized, control much of the homeland. In this report we will see the concept, what “should be” judicial independence, then we address the problem of the United Self-defense groups of Colombia (AUC), some demonstrations of their pressure and the type of processes in which they interfere, in four cities:Bogotá, Cali, Medellín andTunja. KeywordsIndependence of justice, meddling, press, armed groups outside the law, paramilitary activity. 

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