On Necessity as a Defence to Crime: Possibilities, Problems and the Limits of Justification and Excuse

Criminal Law and Philosophy 3 (1):29-49 (2009)
Abstract
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
Keywords Defences  Necessity  Justification and excuse
Categories (categorize this paper)
Options
 Save to my reading list
Follow the author(s)
My bibliography
Export citation
Find it on Scholar
Edit this record
Mark as duplicate
Revision history Request removal from index
 
Download options
PhilPapers Archive


Upload a copy of this paper     Check publisher's policy on self-archival     Papers currently archived: 9,357
External links
  • Through your library Configure
    References found in this work BETA
    Alan Brudner (1987). A Theory of Necessity. Oxford Journal of Legal Studies 7 (3):339-368.
    Simon Gardner (1991). Necessity's Newest Inventions. Oxford Journal of Legal Studies 11 (1):125-135.

    View all 9 references

    Citations of this work BETA

    No citations found.

    Similar books and articles
    Analytics

    Monthly downloads

    Added to index

    2010-08-10

    Total downloads

    51 ( #26,515 of 1,088,781 )

    Recent downloads (6 months)

    1 ( #69,666 of 1,088,781 )

    How can I increase my downloads?

    My notes
    Sign in to use this feature


    Discussion
    Start a new thread
    Order:
    There  are no threads in this forum
    Nothing in this forum yet.