Talk:Necessity (criminal law)

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There needs to be a disambiguation page for necessity. There is the philosophical/political use of this word as well. — Preceding unsigned comment added by Pazouzou (talkcontribs) prev) 21:18, 23 September 2004 (UTC)

I entirely agree. So much of philosophical inquiry focusses around the relationship between cause and effect. Needless to say, necessity plays a large role in this relationship. SJCstudent 03:35, 21 January 2006 (UTC)
@SJCstudent: Ten years later, Necessity is still not a disambiguation page. Instead, it only contains a link to Necessity (disambiguation). Could there be another reasonable name for this article? Jarble (talk) 04:24, 3 April 2016 (UTC)
I'll do a bold move to Necessity (criminal law). – Fayenatic London 07:45, 28 April 2017 (UTC)

Check wording of Element 3[edit]

Can someone please check the wording of Element 3 in this article which states:

3. the accused must be proportionality between the harm inflicted and the harm avoided

The wording here does not make sense to me. There must be a wording mistake in here.
H Padleckas 05:02, 21 October 2005 (UTC)

Example is Wrong Under NY Law[edit]

The example given is most assuredly wrong, at least as a matter of New York State law. New York collapses justification and necessity into a single concept of justification in NY Penal Law Art. 35. I will try to revise this. cpro 21:13, 9 February 2006 (UTC)

I fixed it, in part, but noticed that the discussion of R. v. Dudley & Stephens is wrong. cpro 22:12, 9 February 2006 (UTC)

Thank you for the material on New York State. It is always useful when someone with knowledge of another jurisdiction clarifies their law. In that vein, I would observe that R v Dudley and Stephens is an English case and that the judgment is accurately paraphrased. Whether another jurisdiction interprets the words differently is a separate issue which could be addressed under the relevant heading on the page. David91 03:09, 10 February 2006 (UTC)
I agree in retrospect that "wrong" is too strong--it had been too long since reading the case and Custom of the Sea. However, I still feel that the sentence "Since they could never be sure that the killing was actually necessary from one minute to the next, the defense was denied," while it accurately reflects a small part of the opinion, neglects the extended discussion that makes Dudley a famous case in all common-law jurisdictions. On my quick re-read, I would say that this is the most interesting passage:

But, further still, Lord Hale in the following chapter deals with the position asserted by the casuists, and sanctioned, as he says, by Grotius and Puffendorf, that in a case of extreme necessity, either of hunger or clothing; "theft is no theft, or at least not punishable as theft, as some even of our own lawyers have asserted the same." "But," says Lord Hale, "I take it that here in England, that rule, at least by the laws of England, is false; and therefore, if a person, being under necessity for want of victuals or clothes, shall upon that account clandestinely and animo furandi steal another man's goods, it is felony, and a crime by the laws of England punishable with death." (Hale, Pleas of the Crown, i. 54.) If, therefore, Lord Hale is clear - as he is - that extreme necessity of hunger does not justify larceny, what would he have said to the doctrine that it justified murder?

Also, to what jurisdiction does the principal example refer? That would surely be the minority view in the United States. cpro 16:02, 10 February 2006 (UTC)

Ah, I envy you the chance to read. What a luxury! On Dudley, I can only rely on fading memory. As to the hypothetical example, it has a comtemporary feel because of the shoot-to-kill issue in London recently, but it paraphrases R v Dadson's "wise after the event" is not a defence. The point of Dudley, as I recall, was that life is never certain. If they had killed the weakest and one minute later, a ship had appeared to rescue them, they would all have felt pretty silly. Dadson shot a felon but, at the time he pulled the trigger, he had no idea who he was shooting at. There was an actus reus and mens rea of wounding. Retrospective justification is not a defence but it could mitigate sentencing. If the hungry had waited, eating the naturally dead body would not have been criminal. That they intentionally killed the cabin boy was the complete offence and the fact that it probably saved their lives was interesting casuistry but not a defence. I am happy to split the page by jurisdiction. I have already created a number of dedicated English law pages and this can be another. Your material is more than sufficient to make up a U.S. page if you think that the New York State law is the general rule. David91 17:44, 10 February 2006 (UTC)

I'm not sure that NY is the general rule. Many states adhere more closely to the Model Penal Code which is (if I recall) more strict. I think, though, that from a legal (as opposed to a philosophical) perspective the interesting questions pertaining to necessity as a defense to crime are:
  1. Whether you must actually prevent greater harm, or merely have a reasonable belief that you are doing so.
  2. How the court treats the balancing of harms (e.g. many lives > one life > property).
  3. Whether law enforcement officers have a more robust defense than a private individual.

My objection to the Dudley discussion is, in retrospect, not that it is wrong, but that it focuses on the less interesting aspects of the decision.

And, for the record, I only have time because a partner I work for has not emailed me back yet ;-) cpro 18:39, 10 February 2006 (UTC)

As I am still waiting for feedback from above, I made some changes that I hope improve the page. Let me know what you think. cpro 19:54, 10 February 2006 (UTC)

I am grateful to the partner for allowing you the time (albeit inadvertently). I have the time, being housebound, but surrendered my library when I retired so cannot simply look up the material I need (hence, my envy). The problem with this topic is that it tramples like an elephant all over the philosophical map and keeping it on track is difficult. English law is very simple. It puts "necessity" into a little box and never lets it out unless it is absolutely necessary (sorry). The reason for this may be simply put. We subdivide what you term "justification" into a myriad of components, including laws on self-defence, defence of others and defence of property (both common law and statutory), duress, the separate defence of mistake, and the major public policy issues subsumed in justifiable homicide. Thus, whereas the U.S. might be able to devise a single proportionality test as a common denominator to all aspects of justification, we have a complex web of interlocking statutes and case law to negotiate. When I redrafted the page, I tried to "keep it simple" for the lay reader and simply mentioned the policy issues in the most general of terms. I would be quite interested to redraft the page in co-operation with you to explain the complexity to the readers. Thus, taking your first question: Dadson answers the first element that retrospective justification is not a defence so whether or not it later turns out that you have prevented greater harm is irrelevant. If you had a reasonable but mistaken belief, that could negate the mens rea requirement or fall within one of the statutory "reasonable excuse" provisions, say as for criminal damage caused, but allowing it to apply to an intentional homicide would be problematic. I have already addressed the position of law enforcement officers both directly and indirectly on self-defense (theory) and self-defence in English law. David91 03:33, 11 February 2006 (UTC)

Needs rewrite[edit]

This is a very bad example at least with respect to US law since US law has a lot of specific statutes related to the use of deadly force and force by police officers, and it would not be necessary to use the necessity defense in any of these cases.

Where a criminal defendant asserts necessity as a defense to murder, the analysis can be highly controversial. For example, consider the following two situations involving a police officer causing the death of an individual intentionally:

  • An officer, having a good-faith reasonable belief that a person is a terrorist about to detonate a bomb in a public place, shoots and kills that person. The officer is correct, and this act saves many innocent lives.
  • An officer, having a good-faith reasonable belief that a person is a terrorist about to detonate a bomb in a public place, shoots and kills that person. Upon investigation, the person turns out to be an entirely innocent individual mistaken for a terrorist.

In the former case, the law may consider this a justifiable homicide and excuse the officer from liability on the ground of necessity. In the latter case, the law may hold that the belief in the necessity of the action, no matter how reasonable, should not be enough to exculpate the culpability attaching for a death caused intentionally if the action does not, in fact, avert a greater harm. In some jurisdictions this is the rule of law. In some jurisdictions however, the defence of mistake of fact can be open to the defendant, provided that the accused acted on reasonable belief.

The controversy is generated by the fact that both officers honestly believe that the killing is justified as necessary but one is excused from liability because, by chance, the threat is real, and the other is denied the defense because his or her honest belief proves to be wrong. The argument is that there should be no distinction between them based on the wisdom of hindsight. Either they should both be liable or they should both be excused. Some jurisdictions that allow the defense adopt a reasonable belief standard.

Roadrunner (talk) 15:28, 4 January 2008 (UTC)

Interwiki links[edit]

Some iw links go to articles about the philosophical concept, e.g. the German one. I think they should be deleted, but bots will restore them if I do. Is there any way to stop that?Sjö (talk) 06:03, 25 June 2008 (UTC)

McVeigh deletion[edit]

I deleted this:

"Circa 1997, Timothy McVeigh unsuccessfully used the necessity defense in his trial for the bombing of the Alfred P. Murrah Federal Building, arguing that it was a justifiable response to government crimes at Waco, Texas."

If McVeigh raised a defense of necessity, it should be cited. But what I deleted is worse than merely being uncited, because the necessity defense doesn't even come into it. Necessity is not retrospective. If McVeigh attempted to argue that his action was necessary to punish a previous crime, not to prevent a future crime, then his necessity defense was wacky. Necessity doesn't work like that at all. I suspect that McVeigh's necessity defense (if there was one - no cite!) was based on something else. (talk) 10:18, 2 August 2008 (UTC)


This article is incomplete: The doctrine of necessity also exists in English common law and in other common law jurisdictions. The present article is only about US law. Peterkingiron (talk) 18:15, 10 February 2012 (UTC)

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