doctrine of necessity

doctrine of necessity

1. (philosophy, metaphysics, theology) Necessarianism, especially as espoused by Joseph Priestley.
   • 1803, John Dawson, The Doctrine of Philosophical Necessity Briefly Invalidated‎, page 7:

     In examining the doctrine of necessity, I shall endeavour to bring what I have to say about the subject into as narrow a compass as possible, and for that purpose the following axioms are premised; as in all sciences, some principles must be taken for granted, else nothing can be proved.

2. (law) A principle whereby a normally criminal act is justified by the necessity of preserving something of greater utilitarian value than that lost or sacrificed; not to be confused with self-defence.
   • 1995, Bryan A. Garner, necessity, entry in A Dictionary of Modern Legal Usage, 2nd Edition, Oxford University Press, page 583,

     The doctrine of necessity might lead a court to approve a doctor′s decision to perform an illegal, third-trimester abortion in order to save the mother′s life.

   • 2005, Jerome Hall, General Principles Of Criminal Law‎, page 434:

     It is therefore clear that neither the English court nor Cardozo considered the ethics of the doctrine of necessity. They rejected the doctrine because, in effect, they denied that a state of necessity could ever exist.

3. (politics, law) The principle that, in a situation of emergency or exigent circumstance, a state may legitimately act in ways that would normally be illegal.
   • 2008, Simeon C. R. McIntosh, Kelsen in the “Grenada Court”: Essays on Revolutionary Legality‎, page 27:

     So Their Lordships, conceding that the Governor General′s actions were unconstitutional, reasoned that those actions might nonetheless be validated on the doctrine of necessity.

4. (politics, law) The principle that the laws, of governance in action, should be deemed valid insofar as they do not contradict the constitution. Validated on the basis that maintenance of government is of greater utilitarian value than maintenance of the law.
   • 1989, Ian Greene, The Charter of Rights‎, page 197:

     According to the doctrine of necessity, civilization cannot exist without the rule of law. Therefore, the courts cannot tolerate a legal vacuum. The doctrine of necessity holds that the laws of an illegal government must be deemed to be effective to the extent that they do not violate the constitution.

5. (politics, international law) The principle that a state in immediate peril to its existence, from a situation not of its own doing, may in extremis be justified in violating a right of another state.
   • 1991, Eduardo Jiménez de Aréchaga, Attila Tanzi, Chapter 17: International State Responsibility, Mohammed Bedjaoui (editor), International Law: Achievements and Prospects, UNESCO, Martinus Nijhoff Publishers, page 354,

     The enumeration of situations where the doctrine of necessity has been invoked forms either a catalogue of serious breaches of international law or of cases susceptible of being explained without an appeal to the doctrine of necessity.

• (necessarianism): doctrine of philosophical necessity
• (principle of preservation of greater utilitarian value): duress of circumstances

• martial law
• rule of law