Necessity

In U.S. criminal law

Criminal law

Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

, necessity may be either a possible justification

Justification (jurisprudence)

Justification in jurisprudence is an exception to the prohibition of committing certain offenses. Justification can be a defense in a prosecution for a criminal offense. When an act is justified, a person is not criminally liable even though his act would otherwise constitute an offense. For...

 or an exculpation for breaking the law

Law

Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

. Defendant

Defendant

A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...

s seeking to rely on this defense

Defense (legal)

In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...

 argue that they should not be held liable for their actions as a crime

Crime

Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...

 because their conduct was necessary to prevent some greater harm and when that conduct is not excused under some other more specific provision of law such as self defense. Except for a few statutory exemptions and in some medical cases there is no corresponding defense in English law

English law

English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

.

For example, a drunk driver might contend that he drove his car to get away from a kidnap (cf. North by Northwest). Most common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 and civil law

Civil law (legal system)

Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...

 jurisdiction

Jurisdiction

Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

s recognize this defense, but only under limited circumstances. Generally, the defendant must affirmatively show (i.e., introduce some evidence) that (a) the harm he sought to avoid outweighs the danger of the prohibited conduct he is charged with; (b) he had no reasonable alternative; (c) he ceased to engage in the prohibited conduct as soon as the danger passed; and (d) he did not himself create the danger he sought to avoid. Thus, with the "drunk driver" example cited above, the necessity defense will not be recognized if the defendant drove further than was reasonably necessary to get away from the kidnapper, or if some other reasonable alternative was available to him. However case law

Case law

In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...

 suggests necessity is narrowed to medical cases.

The political necessity defense saw its demise in the case of United States v. Schoon. In that case, thirty people, including appellants, gained admittance to the IRS office in Tucson, where they chanted "keep America's tax dollars out of El Salvador," splashed simulated blood on the counters, walls, and carpeting, and generally obstructed the office's operation. The court ruled that the elements of necessity did not exist in this case.

General discussion

As a matter of political expediency, states usually allow some classes of person to be excused from liability when they are engaged in socially useful functions but intentionally cause injury, loss or damage. For example, the fire services and other civil defence organization

Organization

An organization is a social group which distributes tasks for a collective goal. The word itself is derived from the Greek word organon, itself derived from the better-known word ergon - as we know `organ` - and it means a compartment for a particular job.There are a variety of legal types of...

s have a general duty to keep the community

Community

The term community has two distinct meanings:*a group of interacting people, possibly living in close proximity, and often refers to a group that shares some common values, and is attributed with social cohesion within a shared geographical location, generally in social units larger than a household...

 safe from harm. If a fire or flood is threatening to spread out of control, it may be reasonably necessary to destroy other property to form a fire break, or to trespass on land to throw up mounds of earth to prevent the water from spreading. These examples have the common feature of individuals intentionally breaking the law because they believe it to be urgently necessary to protect others from harm, but some states distinguish between a response to a crisis arising from an entirely natural cause (an inanimate force of nature), e.g. a fire from a lightning strike or rain from a storm, and a response to an entirely human crisis. Thus, parent

Parent

A parent is a caretaker of the offspring in their own species. In humans, a parent is of a child . Children can have one or more parents, but they must have two biological parents. Biological parents consist of the male who sired the child and the female who gave birth to the child...

s who lack the financial means to feed their child

Child

Biologically, a child is generally a human between the stages of birth and puberty. Some vernacular definitions of a child include the fetus, as being an unborn child. The legal definition of "child" generally refers to a minor, otherwise known as a person younger than the age of majority...

ren cannot use necessity as a defense if they steal food. The existence of welfare benefits and strategies other than self-help defeat the claim of an urgent necessity that cannot be avoided in any way other than by breaking the law. Further, some states apply a test of proportionality. So the defense would only be allowed where the degree of harm actually caused was a reasonably proportionate response to the degree of harm threatened. This is a legal form of cost-benefit analysis

Cost-benefit analysis

Cost–benefit analysis , sometimes called benefit–cost analysis , is a systematic process for calculating and comparing benefits and costs of a project for two purposes: to determine if it is a sound investment , to see how it compares with alternate projects...

.

Specific jurisdictions

• England
  Necessity in English law
  In English law, the defence of necessity recognises that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which this defence has succeeded...
  
  
• Canada
  Necessity in Canadian law
  Canadian criminal law allows for a common law defence of necessity. The leading case for the defence is Perka v. The Queen [1984] 2 S.C.R. 232 in which Dickson J...
  
  
• International

Customary International Law

Under International law, a customary international obligation or an obligation granted under a Bilateral Investment Treaty may be suspended under the Doctrine of Necessity. It is "an exception from illegality and in certain cases even as an exception from responsibility." See Continental Casualty Company v Argentine Republic, ICSID Case No ARB/03/09.
In order to invoke the Doctrine of Necessity:
(1) Invoking State must not have contributed to the state of necessity,
(2) Actions taken were only way to safeguard an essential interest from grave and impending danger.
Id. at page 72, paragraph 165.

In specific states

• Alabama
• Alaska
• Arizona
• Arkansas
• California
• Colorado
• Connecticut
• Delaware
• Florida
• Georgia
• Hawaii
• Idaho
• Illinois

• Indiana
• Iowa
• Kansas
• Kentucky
• Louisiana
• Maine
• Maryland
• Massachusetts
• Michigan
• Minnesota
• Mississippi
• Missouri
• Montana

• Nebraska
• Nevada
• New Hampshire
• New Jersey
• New Mexico
• New York
• North Carolina
• North Dakota
• Ohio
• Oklahoma
• Oregon
• Pennsylvania
• Rhode Island

• South Carolina
• South Dakota
• Tennessee
• Texas
• Utah
• Vermont
• Virginia
• Washington
• West Virginia
• Wisconsin
• Wyoming