Talk:Necessity

From Wikipedia, the free encyclopedia

There needs to be a disambiguation page for necessity. There is the philosophical/political use of this word as well.

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)

[edit] Check wording of Element 3

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)

[edit] Example is Wrong Under NY Law

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)