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

Abstract

AbstractRecent 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.