On Necessity as a Defence to Crime: Possibilities, Problems and the Limits of Justification and Excuse
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Criminal Law and Philosophy 3 (1):29-49 (2009)
The article reviews recent developments in England in the law of necessity as a defence to crime and calls for its further extension. It argues that the defence of necessity presents the criminal law with difficult questions of competing values and the ordering of harms. English law has taken a nuanced position on the respective roles of the courts and the legislature in the ordering of harms, although the development of the law has been pragmatic rather than coherently theorised. The law has granted necessity some scope as an exculpatory principle in the law of general defences, but it has also respected the primacy of the legislature as the legitimate arbiter of many of the competitions of value that necessity throws up. The recognition of necessity has not been in the form of a single unified defence of that name. Rather it has taken the form of a number of defences, based on a principle of necessity, but with different nomenclature and different rationales. This approach to necessity is defended as right in terms of principle and policy. Any further development of necessity as a general defence should be restricted to two contexts, namely those of emergencies, and of conflicts of duty, where a danger of death or serious injury is present
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References found in this work BETA
Alan Brudner (1987). A Theory of Necessity. Oxford Journal of Legal Studies 7 (3):339-368.
R. A. Duff (1993). Choice, Character, and Criminal Liability. Law and Philosophy 12 (4):345 - 383.
Simon Gardner (1991). Necessity's Newest Inventions. Oxford Journal of Legal Studies 11 (1):125-135.
Jeremy Horder (2004). Excusing Crime. OUP Oxford.
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