Justification: Necessity - The Nature And Domain Of Necessity, Contours Of The Necessity Defense, Relation To Other Defenses
theory excuse
THOMAS MORAWETZ
THOMAS MORAWETZ
The prohibitions of criminal law apply in "normal" situations. The various criminal defenses delineate situations that are, in relevant ways, exceptional. Persons may not kill, but the defense of self-defense makes clear that they may do so in the exceptional circumstance of being threatened with deadly force. Similarly, one may commit harm with legal impunity if under the influence …
The Model Penal Code, which has generally been a template for many criminal statutes in the last thirty years, describes the necessity defense as follows: (1) Conduct which the actor believes to be necessary to avoid an evil to himself or another is justifiable, provided that: (a) the evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the o…
Self-defense and legal authority. Commentators have taken contrasting positions on the relation of necessity to other defenses. The Model Penal Code says that it expresses the overarching principle behind legal justification. Other commentators such as P. R. Glazebrook have argued that it is an interstitial concept, designed to fill gaps between other established defenses. The Code position is eas…
The utilitarian bases of the necessity defense are problematic if it is seen as a guide for action, a rule permitting actors to choose the lesser evil even when doing so involves a violation of law. Given the uncertain nature of the determination itself, one may question whether actors will generally be able to choose the lesser evil correctly and whether knowledge of the availability of the defen…
American Law Institute. Model Penal Code and Commentaries: Official Draft and Revised Comments. Philadelphia: ALI, 1980. …
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