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
Learn more about PhilPapers
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
|Keywords||Defences Necessity Justification and excuse|
|Categories||categorize this paper)|
|Through your library||Configure|
Similar books and articles
Yasemin Işiktaç (2007). The Philosophy of the Turkish Legal Revolution. The Proceedings of the Twenty-First World Congress of Philosophy 3:3-12.
Milton Fisk (1970). Are There Necessary Connections in Nature? Philosophy of Science 37 (3):385-404.
Javier Kalhat (2008). Necessity and Language: The Gap is Still Very Real. Philosophical Investigations 31 (3):227–236.
John Bramhall (1655/1996). A Defence of True Liberty From Antecedent and Extrinsecall Necessity. Routledge/Thoemmes.
Dennis Patterson (2012). Alexy on Necessity in Law and Morals. Ratio Juris 25 (1):47-58.
John Gardner (2007). Offences and Defences: Selected Essays in the Philosophy of Criminal Law. Oxford University Press.
Brian Skyrms (1980). Causal Necessity: A Pragmatic Investigation of the Necessity of Laws. Yale University Press.
Guy Rohrbaugh & Louis deRosset (2004). A New Route to the Necessity of Origin. Mind 113 (452):705-725.
Added to index2010-08-10
Total downloads51 ( #25,954 of 1,018,179 )
Recent downloads (6 months)1 ( #65,321 of 1,018,179 )
How can I increase my downloads?