What is the role of necessity as a defense in criminal law?

In the criminal law of many nations, necessity can serve as either a justification or an exculpation for violating the law. Defendants argue that their actions, though illegal, were necessary to prevent a greater harm and were not covered by more specific legal defenses like self-defense. This defense acknowledges that sometimes breaking a minor law is the only way to avoid a more significant negative outcome.

What is the core argument made by defendants who invoke the necessity defense?

Defendants using the necessity defense argue that they should not be held liable for their criminal actions because their conduct was essential to prevent a greater harm. This defense is typically raised when the defendant believes their illegal act was the only viable option to avert a more severe consequence, and no other specific legal defense applies.

Why do legal systems generally permit some individuals to be excused from liability when they cause harm while performing socially useful functions?

States often allow certain individuals to be excused from criminal liability when they intentionally cause injury, loss, or damage while engaged in socially useful functions. This is considered a matter of political expediency, recognizing that essential services or duties sometimes require actions that might otherwise be illegal, provided they are done for a greater good.

Can you provide an example of a scenario where a drunk driver might attempt to use the necessity defense?

A drunk driver might contend that they drove their car while intoxicated out of necessity to escape a situation where they were being kidnapped. This hypothetical scenario illustrates how a defendant might argue that their illegal act (drunk driving) was a direct response to an immediate and severe threat.

What are the general requirements that defendants must demonstrate to successfully use the necessity defense in most common and civil law jurisdictions?

Generally, defendants must affirmatively show four key elements to use the necessity defense: (a) the harm they sought to avoid must outweigh the danger of their prohibited conduct; (b) they must have had no reasonable alternative course of action; (c) they must have ceased the prohibited conduct as soon as the danger passed; and (d) they must not have created the danger they sought to avoid. These conditions ensure the defense is applied narrowly and only in truly exceptional circumstances.

How does the requirement that the harm avoided must outweigh the harm caused apply to the necessity defense?

This requirement means that the potential negative outcome the defendant was trying to prevent must be significantly more severe than the harm caused by the illegal action they took. It's a form of legal cost-benefit analysis, ensuring that the illegal act was a proportionate response to the threat.

What does it mean for a defendant to have had 'no reasonable alternative' when invoking the necessity defense?

The 'no reasonable alternative' condition means that the defendant must prove that there were no other legal or less harmful options available to them to avoid the threatened harm. If a safer or lawful path existed, the necessity defense typically fails.

Why is it important for a defendant to cease the prohibited conduct as soon as the danger has passed when claiming necessity?

This requirement ensures that the illegal conduct is strictly limited to the period of actual necessity. Once the immediate threat is gone, the justification for breaking the law disappears, and the defendant is expected to return to lawful behavior.

What is the rule regarding a defendant's role in creating the danger they are trying to avoid when using the necessity defense?

A crucial aspect of the necessity defense is that the defendant must not have been the one who created the danger they sought to avoid. This prevents individuals from intentionally causing a dangerous situation and then using that situation as a justification for illegal actions.

How do the general requirements for the necessity defense apply to the example of a drunk driver escaping a kidnapper?

In the drunk driver example, the necessity defense would likely fail if the driver continued driving further than was reasonably necessary to escape the kidnapper or if other reasonable alternatives, such as calling for help, were available. The defense requires strict adherence to the principle of necessity and proportionality.

How might the necessity defense be applied in scenarios involving emergency services like fire departments?

The necessity defense can apply to actions taken by emergency services. For instance, if a fire department needs to destroy property to create a fire break to stop a wildfire, or if civil defense organizations need to trespass or build earthworks to contain a flood, these actions might be justified under necessity.

What common feature do examples like creating fire breaks or building flood defenses share in relation to the necessity defense?

These examples share the common feature of individuals intentionally breaking the law because they believe it is urgently necessary to protect the community from harm. They involve proactive measures taken to prevent a larger disaster.

Why is stealing food to feed one's children generally not considered a valid defense of necessity in some states?

In some jurisdictions, stealing food to feed children is not recognized as a necessity defense because the existence of welfare benefits and other legal strategies means there are often alternatives to breaking the law. The claim of urgent necessity that cannot be avoided by any other means is thus defeated.

What is the 'test of proportionality' in the context of the necessity defense?

The test of proportionality is a legal standard applied in some jurisdictions to the necessity defense. It allows the defense only when the degree of harm actually caused by the defendant's illegal actions is reasonably proportionate to the degree of harm that was threatened.

How can the proportionality test for necessity be described as a form of cost-benefit analysis?

The proportionality test functions like a cost-benefit analysis because it requires a weighing of the negative consequences of the illegal act against the severity of the harm that was averted. The illegal act is only justified if the benefits (harm avoided) clearly outweigh the costs (harm caused).

What are the three main requirements for the necessity defense in Canada?

In Canada, the three requirements for the defense of necessity are: (1) an urgent situation of imminent peril or danger, (2) the absence of any reasonable legal alternative, and (3) proportionality between the harm inflicted and the harm avoided. These criteria help define the narrow circumstances under which the defense is applicable.

How are the first two requirements for the necessity defense in Canada evaluated?

The first requirement, an urgent situation of imminent peril or danger, and the second requirement, the lack of a reasonable legal alternative, are evaluated in Canada using a modified objective standard. This means considering what a reasonable person would have perceived and done in similar circumstances, with some consideration for the defendant's subjective situation.

According to the Canadian Supreme Court case R v Latimer, how is the third requirement for the necessity defense evaluated?

According to the Canadian Supreme Court in R v Latimer (2001), the third requirement for the necessity defense—proportionality between the harm inflicted and the harm avoided—is evaluated on a purely objective standard. This means the court assesses whether the action taken was a reasonable and proportionate response to the threat, regardless of the defendant's personal beliefs.

What is the term used in Denmark and Norway that is equivalent to the necessity defense in criminal law?

The equivalent of the necessity defense in Denmark and Norway is known as emergency law or emergency right, referred to as nødret in Norwegian and nødrett in Danish. This legal concept allows for actions that would normally be unlawful if taken to avert an immediate danger.

How is nødret (emergency law) in Denmark and Norway related to, yet distinct from, self-defense?

Nødret is considered related to self-defense as both involve actions taken in response to a threat. However, nødret is distinct because it can apply when the threat is not necessarily from a human aggressor, and it can extend to protecting others or property, potentially even involving the killing of a person posing an immediate threat to multiple others, which might go beyond typical self-defense parameters.

What are some common legal examples of nødret (emergency law) in Denmark and Norway?

Common legal examples of nødret include breaking windows or other objects to escape a fire, commandeering a vehicle to use as an emergency ambulance, disregarding traffic rules to rush a dying patient to a hospital, and, in extreme cases, killing an individual who poses an immediate threat to several other people. These examples highlight situations where immediate action is required to prevent severe harm.

Under what specific condition can nødret (emergency law) be invoked in Denmark and Norway?

In Denmark and Norway, nødret can only be invoked when no other option is available to avert the danger. This emphasizes the principle that the defense is a last resort, applicable only when all other reasonable alternatives have been exhausted.

Does English law generally recognize a necessity defense for the crime of murder?

No, English law generally does not recognize a necessity defense for murder. Landmark cases like R v Dudley and Stephens and R v Howe have established that the defense is not available for homicide, even in extreme circumstances.

Are there any exceptions to the general rule that necessity is not a defense for murder in English law?

While the defense is largely unavailable for murder, there are a few statutory exemptions and specific medical cases where actions that might otherwise constitute murder could potentially be excused or justified. However, these are very narrow exceptions to the general rule.

What are the key elements required for the necessity defense in Singapore, according to its Penal Code?

In Singapore, the necessity defense requires the absence of criminal intent, the action to be taken in good faith (demonstrating due care and attention), and the primary goal to be the prevention of harm. The harm being prevented must also be sufficiently serious and imminent to justify or excuse the illegal act.

What does the requirement of 'good faith' entail in the context of Singapore's necessity defense?

In Singapore's legal framework for the necessity defense, 'good faith' implies that the defendant acted with due care and attention. This means they exercised reasonable diligence and judgment in assessing the situation and choosing their course of action, rather than acting recklessly or negligently.

What was the outcome of the 2020 cases in Switzerland involving climate activists who pleaded necessity?

In two separate cases in 2020, Swiss courts did not convict climate activists of trespassing and damaging property. The activists successfully pleaded a necessity defense, arguing their actions were justified due to a climate emergency.

What specific circumstances led the climate activists in Switzerland to plead the necessity defense?

The climate activists in Switzerland pleaded necessity in the face of what they described as a climate emergency. Their unauthorized demonstrations inside Crédit Suisse branches were seen by them as a necessary response to this perceived existential threat.

Under which Taiwanese laws can necessity be raised as a defense?

In Taiwan, necessity can be raised as a defense under both the Criminal Code and the Administrative Penalty Act. This indicates that the legal system recognizes the principle that certain illegal actions may be excused if they are necessary to prevent greater harm.

How was the necessity defense treated in the United States case of United States v. Schoon?

In the case of United States v. Schoon, the necessity defense was rejected for criminal acts conducted to meet political ends. The court ruled that the elements required for the necessity defense did not exist in that particular case.

What actions did the defendants take in the United States v. Schoon case?

In United States v. Schoon, the defendants gained admittance to an Internal Revenue Service (IRS) office, where they chanted slogans, splashed simulated blood on surfaces, and obstructed the office's operations. These actions were part of a protest related to political issues.

What specific legal ruling was made regarding the necessity defense in United States v. Schoon?

The court in United States v. Schoon ruled that the elements of the necessity defense were not met in that case. This decision effectively denied the use of the necessity defense for the defendants' political protest actions.

What is the legal position on the necessity defense in Kansas regarding legal versus illegal actions taken to avoid harm?

In Kansas, the necessity defense may not be used if the harm the defendant claims to be avoiding through their actions was legal, while the action undertaken to prevent it was illegal. This means the defense is generally unavailable when trying to prevent a legal harm by committing an illegal act.

How did the Kansas Supreme Court's ruling on necessity apply to the case of Scott Roeder, who assassinated George Tiller?

The Kansas Supreme Court's ruling meant that Scott Roeder could not use the necessity defense to justify the assassination of George Tiller, as Tiller's actions (providing late-term abortions) were legal in Kansas. Therefore, Roeder could not claim he was preventing a greater evil by committing an illegal act to stop a legal one.

What defense was allowed for Scott Roeder in the trial for the assassination of George Tiller, in the absence of a necessity plea?

Although the necessity defense was disallowed, the judge allowed Roeder's defense team to present a case for voluntary manslaughter. This permitted them to argue that the defendant sincerely believed he was committing a lesser crime (manslaughter) to prevent a greater evil (the continuation of legal abortions).

What was the outcome of the 'Winooski 44' case in Vermont concerning the necessity defense?

In the 'Winooski 44' case in Vermont, activists were acquitted of charges after successfully using a necessity defense. This demonstrates a jurisdiction where the defense was accepted for the defendants' actions.

What is the principle in Judaism that allows for the breaking of laws in certain circumstances?

In Judaism, the principle of pikuach nefesh permits the violation of almost any law, except those prohibiting murder, adultery/incest, and blasphemy/idolatry, for the purpose of saving a life. This principle highlights the supreme value placed on human life within Jewish law.

What are the specific exceptions to the pikuach nefesh principle in Judaism?

The principle of pikuach nefesh, which allows for the breaking of laws to save a life, has three strict exceptions in Judaism: laws against murder, laws against adultery and incest, and laws against blasphemy or idolatry. These are considered absolute prohibitions that cannot be overridden, even to save a life.

What related legal concepts are mentioned in the 'See also' section of the article?

The 'See also' section lists related legal concepts such as 'Competing harms' and 'Opinio juris sive necessitatis'. These terms touch upon similar ideas of justification for actions based on circumstances or perceived legal necessity.

In Canada, what is the standard of evaluation for the urgency and lack of alternatives when claiming necessity?

In Canada, the urgency of the situation and the lack of reasonable legal alternatives for the necessity defense are evaluated using a modified objective standard. This standard considers what a reasonable person would perceive and do, while also allowing some consideration for the specific circumstances faced by the defendant.

What is the distinction between the necessity defense and self-defense in the context of Danish and Norwegian nødret?

While both nødret (emergency law) and self-defense involve actions taken in response to threats, nødret is broader. It can apply when the threat is not from a human aggressor and can justify actions to protect others or property, potentially even including lethal force against a third party posing a threat, which may extend beyond the typical scope of self-defense.

What specific legal precedent is cited in relation to the evaluation of proportionality for the necessity defense in Canada?

The Canadian Supreme Court case of R v Latimer (2001) is cited as the precedent for evaluating the proportionality requirement of the necessity defense on a purely objective standard. This means the court assesses the reasonableness of the harm inflicted versus the harm avoided without subjective considerations of the defendant's beliefs.

How does the necessity defense in Singapore address the defendant's intent and the nature of the harm?

In Singapore, the necessity defense requires the absence of criminal intent and that the action be taken in good faith with due care and attention. Furthermore, the harm being prevented must be sufficiently serious and imminent to justify the illegal act.

What specific legal principle was invoked by climate activists in Switzerland when pleading necessity?

The climate activists in Switzerland invoked the principle of necessity in the context of a perceived climate emergency. They argued that their illegal actions, such as trespassing and property damage, were justified responses to this broader environmental crisis.

In the United States case United States v. Schoon, what was the court's reasoning for rejecting the necessity defense?

The court in United States v. Schoon rejected the necessity defense because it determined that the elements required for the defense were not present in the case. Specifically, the court found that the defendants' actions, which involved protesting at an IRS office, did not meet the criteria for necessity.

What is the significance of the R v Dudley and Stephens case in English law regarding the necessity defense?

The case of R v Dudley and Stephens is significant in English law because it established that the necessity defense is generally not available for murder. This precedent holds that even in dire circumstances, necessity cannot justify taking a human life.

How does the necessity defense in Taiwan apply to both criminal and administrative law?

In Taiwan, the necessity defense is recognized under both the Criminal Code and the Administrative Penalty Act. This dual application suggests that the legal system acknowledges the principle of necessity across different branches of law when actions are taken to prevent greater harm.

What is the core principle of pikuach nefesh in Judaism?

Pikuach nefesh is a fundamental principle in Judaism that mandates the preservation of human life above almost all other religious obligations. It allows for the violation of virtually any commandment, with very few exceptions, if doing so is necessary to save a life.

What specific types of laws are considered absolute and cannot be overridden by the principle of pikuach nefesh in Judaism?

The principle of pikuach nefesh does not permit the violation of laws against murder, adultery/incest, and blasphemy/idolatry, even if doing so could save a life. These are considered the most severe prohibitions in Jewish law.

How does the necessity defense differ from self-defense in common law jurisdictions?

While both necessity and self-defense can justify otherwise illegal actions, self-defense typically involves responding to an immediate threat of unlawful force from another person. Necessity, on the other hand, can encompass a broader range of threats, including natural disasters or unavoidable circumstances, and may involve actions to protect oneself or others from harm, even if no direct aggressor is present.

What is the purpose of the necessity defense in criminal law?

The purpose of the necessity defense is to provide a legal justification or excuse for committing an otherwise criminal act when that act was necessary to prevent a greater harm, and no reasonable legal alternative existed. It acknowledges that in certain extreme circumstances, breaking the law might be the lesser of two evils.

Necessity Criminal Law Wiki: The Doctrine of Necessity: Legal Justification and Excuse in Criminal Law

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The Necessity Defense

Legal Justification and Excuse

In criminal law, the defense of necessity posits that an individual should not be held liable for committing an otherwise unlawful act if that act was necessary to prevent a greater harm. This defense functions either as a justification (acknowledging the act was technically illegal but permissible under the circumstances) or an excuse (acknowledging the act was illegal but the actor lacked culpability due to overwhelming pressure). It is invoked when conduct is undertaken to avert imminent danger, and no other legal or reasonable alternative exists.^[1]^[2]

Rationale and Application

The rationale behind recognizing necessity stems from principles of proportionality and the avoidance of greater evils. It acknowledges that in extreme circumstances, individuals may be compelled to break the law to prevent catastrophic outcomes. However, its application is strictly limited to ensure it does not undermine the rule of law or encourage reckless behavior.^[3]

Limitations and Exclusions

Crucially, the defense of necessity is generally not available for certain severe offenses, such as murder, in many common law jurisdictions. Furthermore, it typically requires that the defendant did not create the danger they sought to avoid and that the illegal conduct ceased once the immediate danger passed.^[4]

Core Elements of Necessity

Imminent Peril

The situation must present a clear and imminent danger or peril. This threat must be immediate and substantial, requiring prompt action to avert it. Vague or future threats are generally insufficient to invoke the defense.

No Reasonable Alternative

The defendant must demonstrate that there were no reasonable legal alternatives available to address the threat. If a legal course of action could have achieved the same objective, the necessity defense is typically unavailable.

Proportionality

The harm caused by the defendant's illegal conduct must be reasonably proportionate to the harm sought to be avoided. The law requires a balancing act: the offense committed must not be significantly worse than the harm prevented. This is often evaluated objectively.

Self-Created Danger

Generally, the defense is unavailable if the defendant intentionally or negligently created the dangerous situation they claim necessitated their illegal actions. The peril should ideally arise from external circumstances beyond the defendant's control.

Jurisdictional Perspectives

Canada

In Canada, necessity is recognized for crimes committed in urgent situations of clear and imminent peril where the accused had no safe or legal alternative. The defense requires proof of:

An urgent situation of imminent peril.
No reasonable legal alternative.
Proportionality between the harm inflicted and the harm avoided.

Elements one and two are assessed using a modified objective standard, while the third is purely objective.^[1]

Denmark & Norway

These jurisdictions recognize nødret (emergency law/right), akin to necessity but distinct from self-defense. Examples include breaking property to escape a fire or commandeering a vehicle for medical emergencies. It applies only when no other option is available.^[1]^[2]

England

English law generally does not recognize necessity as a defense for murder, with limited statutory exemptions and specific medical cases. Landmark cases like R v Dudley and Stephens highlight this strict limitation.^[3]

Singapore

Necessity is a defense under the Penal Code, requiring a lack of criminal intent, good faith, and the goal of preventing serious and imminent harm. The act must be justified or excused by the circumstances.^[5]^[6]

Switzerland

In Switzerland, climate activists have successfully used the necessity defense in cases involving property damage during protests, arguing it was necessary due to the climate emergency.^[7]^[8]

Taiwan

Necessity is recognized as a defense under both the Criminal Code and the Administrative Penalty Act, provided the conditions of imminent threat and lack of alternatives are met.^[9]^[10]

United States

The necessity defense is recognized but narrowly applied. It was notably rejected in United States v. Schoon for acts related to political ends, emphasizing that the defense is not available when the alleged necessity arises from political motivations or when legal alternatives exist. Some states, like Kansas, have specific rulings preventing the defense if the avoided harm was legal while the action taken was illegal.^[11]^[12]^[13]^[14]^[15]

Necessity in Religious Law

Judaism

Jewish law recognizes the principle of pikuach nefesh (saving a life), which permits violating virtually any commandment, except those concerning murder, incest, or idolatry, to preserve human life. This principle underscores the paramount importance of life preservation.

Catholicism

Within Catholic moral theology, necessity can sometimes mitigate culpability or justify actions that would otherwise be considered wrong, particularly when adhering to the principle of double effect or when facing extreme duress. Canon law also addresses situations where necessity might excuse non-compliance with certain rules.^[3]

Further Considerations

Related Legal Concepts

The doctrine of necessity is closely related to other legal concepts that address justifications and excuses for criminal conduct. Understanding these distinctions is crucial for a comprehensive grasp of criminal defenses:

Competing Harms: A broader principle where one illegal act is justified to prevent a greater harm.
Duress: Involves committing an offense under threat of immediate death or serious bodily injury from another person.
Self-Defense: Justifies the use of force to protect oneself or others from imminent unlawful harm.
Opinio Juris sive Necessitatis: A concept in international law concerning customary law formation, where state practice is accepted as law out of a sense of legal obligation or necessity.

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References

See R v Dudley and Stephens [1884] 14 QBD 273 and R v Howe [1987] 1 AC 417

Article 24 of the Criminal Code of the Republic of China.

Article 13 of Administrative Penalty Act.

State v. Roeder, 300 Kan. 901, 336 P.3d 831 (2014)

Anti-abortion activist can't use 'necessity defense' in slaying .

A full list of references for this article are available at the Necessity (criminal law) Wikipedia page

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This is not legal advice. The information provided on this website is not a substitute for professional legal consultation, diagnosis, or treatment. Always seek the advice of a qualified legal professional with any questions you may have regarding a legal matter. Never disregard professional legal advice or delay in seeking it because of something you have read on this website.

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The Doctrine of Necessity

💡 Dive in with Flashcard Learning! 💡

The Necessity Defense 🛡️

⚖️ Legal Justification and Excuse

📜 Rationale and Application

🚫 Limitations and Exclusions

Core Elements of Necessity 🧩

🚨 Imminent Peril

➡️ No Reasonable Alternative

⚖️ Proportionality

✅ Self-Created Danger

Jurisdictional Perspectives 🌍

🇨🇦 Canada

🇩🇰 Denmark & Norway

🇬🇧 England

🇸🇬 Singapore

🇨🇭 Switzerland

🇹🇼 Taiwan

🇺🇸 United States

Necessity in Religious Law 📜

✡️ Judaism

⛪ Catholicism

Further Considerations 🔗

⚖️ Related Legal Concepts

Teacher's Corner 🧑‍🏫

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Disclaimer ⚠️

📜 Important Notice

Dive in with Flashcard Learning!

The Necessity Defense

Legal Justification and Excuse

Rationale and Application

Limitations and Exclusions

Core Elements of Necessity

Imminent Peril

No Reasonable Alternative

Proportionality

Self-Created Danger

Jurisdictional Perspectives

Canada

Denmark & Norway

England

Singapore

Switzerland

Taiwan

United States

Necessity in Religious Law

Judaism

Catholicism

Further Considerations

Related Legal Concepts

Teacher's Corner

True or False?

Test Your Knowledge!

Gamer's Corner

Discover other topics to study!

References

Feedback & Support

Disclaimer

Important Notice