Duhaime's Law Dictionary

Necessity Definition:

A defense or excuse from conviction of a crime committed.

Related Terms: Murder, Necessitas Indicit Privilegium Quoad Jura Privata

"The law of necessity", one can find in a 1672 case, Manby v Scott, "dispenses with things which otherwise are not lawful to be done."

"Necessity creates the law," one can find in the reasons of the English Court in the maritime law case referred to as The Gratitudine:

"It supercedes rules; and whatever is reasonable and just in such cases is likewise legal."

The defence of necessity is not of universal acceptance. In the United States, Justice Carl Gaertner of the Missouri Court of Appeal used these words in State v Deiner:

"Crucial to the application of the doctrine is the imminence of the danger and the existence of an emergency situation. ... The application of the defense (of necessity) is limited to the following circumstances: (1) the defendant is faced with a clear and imminent danger, not one which is debatable or; (2) the defendant can reasonably expect that his action will be effective as the direct cause of abating the danger; (3) there is no legal alternative which will be effective in abating the danger; and (4) the legislature has not acted to preclude the defense...."

Missouri has a statute which extended the defence but not to murder (§563.026, Missouri Revised Statutes, 2011):

"... conduct which would otherwise constitute any crime other than a class A felony or murder is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability of avoiding the injury outweighs the desirability of avoiding the injury sought to be prevented by the statute defining the crime charged."

In English law, at this time, there is no defence of necessity in spite of the statements made in historical works. For example, as far back as 1551, one can find these words in the English law reports:

"In every law there are some things which when they happen a man may break the words of the law, and yet not break the law itself; and such things are exempted out of the penalty of the law, and the law privileges them although they are done against the letter of it, for breaking the words of the law is not breaking the law, so as the intent of the law is not broken. And therefore the words of the law of nature, of the law of this Realm, and of other Realms, and of the law of God will also yield and give way to some acts and things done against the words of the same laws, and that is, where the words of them are broken to avoid greater inconveniences, or through necessity, or by compulsion…"1

In the 1651 book by English philosopher Thomas Hobbes, Leviathan:

"If a man by the terror of present death, be compelled to do a fact against the law, he is totally excused; because no law can oblige a man to abandon his own preservation. And supposing such a law were obligatory: yet a man would reason thus, if I do it not, I die presently: if I do it, I die afterwards; therefore by doing it, there is time of life gained; nature therefore compels him to the fact."

William Blackstone's famous description came under the heading "choice of two evils" (Book 4 of his Commentaries on the Laws of England, circa 1756):

"Choice Between Two Evils. This species of necessity is the result of reason and reflection and obliges a man to do an act, which, without such obligation, would be criminal. This occurs, when a man has his choice of two evils set before him, and chooses the less pernicious one. He rejects the greater evil and chooses the less. As where a man is bound to arrest another for a capital offence, and being resisted, kills the offender, rather than permit him to escape."

The defence of necessity was rejected by Justice Coleridge in the famous and tragic case of murder and death on the high seas, R. v Dudley.2 More recently, these words of Justices Alfred Denning and Davies in Southwark v Williams:

"Necessity would open a door which no man could shut.... The plea would be an excuse for all sorts of wrongdoing (Denning).

"Necessity can very easily become simply a mask for anarchy (Davies)."

In Canada, such a defence has a tenuous hold in the current jurisprudence. Note these hesitant words of then Chief Justice Brian Dickson of Canada's Supreme Court in the 1976 decision R v Morgentaler:

"If it (i.e. the defence of necessity) does exist it can no further than to justify non-compliance in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible."

In R. v. Goltz, Justice La Forest wrote this for the majority of Canada's Supreme Court, citing a previous decision of the same court (Perka v. The Queen), and reading the defence into Canada's Criminal Code:

"The common law defence of necessity ... doctrine exists as an excusing defence, operating in very limited circumstances, when conduct that would otherwise be illegal and sanctionable is excused and made unsanctionable because it is properly seen as the result of a morally involuntary decision, to do an act which in the eyes of society is thought to have positive social value outweighing the detrimental effect of the contravention. It only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril, and where there are no reasonable legal alternatives to the conduct pursued."


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