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Published online by Cambridge University Press: 01 January 2020
The defence of necessity has had a long, though confused, legal career. Like self-defence, consent, duress, insanity and mistake of law, necessity is rooted in moral intuitions about when conduct which causes harm to another's person or property is not wrong, or should be tolerated, permitted or praised. If a man is literally starving to death and steals a loaf of bread, we are reluctant to say that his extreme circumstances should make no difference at all to the way we treat him at trial. And if two men, adrift at sea, are clinging to a log which can only support the weight of one, we are once again reluctant to say that if one pushes the other off the log, it is just a case of murder. These intuitions are deepseated; but it is extremely difficult to articulate the defence they seem to support, or to isolate the circumstances which mark the difference between a situation where the defence ought to apply and where it ought not.
1 For the earlier view, see Aristotle's Magna Moralia, 1188 b17-24, and 37: What is done from necessity is involuntary - not accompanied by thought.’ See also Ethica Eudemia, 1223 a 10-12: We do not praise or blame that which is due to necessity, or chance, or nature, but only for what we ourselves are causes of.' Thomas Hobbes in Leviathan offered the psychological refinement that the urge or passion of self-preservation causes a man to be compelled to do what is against the law (Everyman Edition, 258). ·
2 ‘The law presumes that an act or omission done or neglected under the in∼ fluence of pressing danger was done or neglected involuntarily’ (Moak's Underhill on Torts, 14). This presumption was still in use in Filippone v. Reisenburger (1909) 119 N.Y.S. 679.
3 The view summarized here can be found in various forms in the following: Prosser, Law of Torts (fourth edition, 1971 ), 98 ff.; Fleming, The Law of Torts (fifth edition, 1977), 92 ff.Google Scholar; LaFave, and Scott, Handbook on Criminal Law (1972), 381 ff.Google Scholar; Williams, G. ‘The Defence of Necessity,’ Current Legal Problems, 6 (1953) 216;CrossRefGoogle Scholar and Glazebrook, P.E. ‘The Necessity Plea in English Common Law,’ Cambridge Law Journal, (1972) 87.Google Scholar
4 The Gratitudeine (1801) 3 Rob. Chr. 255, per Sir William Scott, at 266
5 Situation I is adapted from an example used by Fried, Charles in Right and Wrong (Cambridge, MA: Harvard University Press 1978), 49.Google Scholar
6 Situation II is a simplified version of John F. Kennedy Memorial Hospital v. Heston (1971) 279 A. 2d 670 (N.J.S.C.). See as well, Marshall v. Curry (1933]3 D.l.R. 260 (N.S.S.C.).
7 See, e.g. Lafave and Scott, 381.
8 Lynch v. Director of Public Prosecutions, [1975]1 All E.R. 913 (H.L.)
9 Lafave and Scott, 381
10 Surocco v. Geary, 3 Cal., 69; 58 Am. Dec. 385 (1853)
11 See U.S. v. Berrigan 283 F. Supp. 336 (D. Md. 1969) and U.S. v. Moylan 417 F. 2d 1002 (4th Cir. 1969) where the defence was raised to Justify anti-war activities. In Moylan at 1009 the court stated that’ … it implies no disparagement of their idealism to say that society will not tolerate the means they chose to register their opposition to the war.'
12 [1939]1 K.B. 687. The same defence failed in Morgentaler v. The Queen (1975) 20 C.C.C. (2d) 449, 53 D.L.R. (3d) 161 (S.C.C.).
13 (1609) 12 Co. Rep. 63. And compare Aristotle in Ethica Nicomachea 1110 as-10 where, while discussing whether some actions done from fear of greater evil are involuntary or voluntary, he states: ‘Something of the sort happens also with regard to the throwing of goods overboard in a storm; for in the abstract no one throws goods away voluntarily, but on condition of its securing the safety of himself and his crew any sensible man does so.'
14 See Austin's, J.L. important essay ‘A Plea for Excuses,’ Proceedings of the Aristotelian Society, 57 (1956-57),Google Scholar and D'Arcy, E. Human Acts (Oxford: Oxford University Press 1966),Google Scholar especially Part I, Chapter 2. The distinction between Justifications and excuses is throughly treated in Fletcher, George P. Rethinking Criminal Law (Boston: Little, Brown 1978),Google Scholar Chapter 10.
15 Cf. Fletcher, 788 ff.
16 See the Model Penal Code, s. 3.02. This criterion is discussed in Arnolds and Garland, ‘The Defence of Necessity in Criminal law: The Right to Choose the lesser Evil,’ Journal of Criminal Law and Criminology, 65 (1974) 289, and Kenny Outlines of Criminal Law (nineteenth edition, 1966), 73.
17 (1884) 14 Q.B.D. 273 and 1 Wallace June 25 1842, Fed. Case No. 15, 383
18 See ‘The Case of the Speluncean Explorers: Harvard Law Review, 61 (1949) 616.
19 See Fried, C. ‘Reason and Action,’ Natural Law Forum, 11 (1966) 44Google Scholar where Fried argues for the heroic course on the ground of common humanity, expressed as love, friendship, mutual respect and loyalty.
20 470 S.W. 2d 565 (Mo. 1971). Supreme court Decision: 405 U.S. 1073 (1972)
21 585 F. 2d 1087 (D.C. Cir. 1978). See also, People v. Harmon, 53 Mich. App. 482 (1974), People v. Luther, 394 Mich. 619 (1975), People v. Lovercamp, 43 Cal. App. 3d 823 (1974), and People v. Unger, 66 Ill. 2d 333 (1977).
22 See Ploof v. Putnam (1908) 71 Atl. Rep. 188 (Vt. S.C.) and Fleming, The Law of Torts (fifth edition, 1977), 94.
23 Depue V. Flateau 100 Minn. 299 (1907)
24 Cf. Whalley V. The Lancashire and Yorkshire Railway Co., (1884) 13 Q.B. 131.
25 Mulloy V. Hop Sang, [1935] 1 W.W.R. 714 (Alta. S.C.A.D.) and Murrary v. McMurchy, [1949] 2 D.l.R. 442 (B.C.S.C.)
26 ‘A Defence of Abortion,’ Philosophy and Public Affairs, 1 (1971-72) 47-66
27 Situation VI is adapted from one of the very few torts cases where necessity was raised in defence to a battery: Laidlaw v. Sage 52 N.E. 679 (N.Y. 1899).
28 See Fleming, The Law of Torts (fifth edition, 1977), 94-5; Prosser, Law of Torts (fourth edition, 1971), 126-7; and Vincent v. Lake Erie Transportation Co. (1910)
124 N.W. 221 (Minn. S.C.).
29 (1971) 2 All E.R. 175 (C.A.)
30 A shorter version of this paper was read at the Canadian Philosophical Association meeting in Montreal, June 1980. I would like to thank my commentator, Professor Brenda Baker, and the referee of this Journal for their helpful suggestions.
