Necessity as an ex post exception

Note: this is the second in a series of five posts on the common law doctrine of necessity.

In our previous post (9/1), we presented three general theories of the legal doctrine of necessity. Here, we consider the first of those theories in greater detail: necessity as an ex post exception. First, let’s review the standard legal or common law definition of this doctrine. Briefly, necessity is an affirmative defense (i.e. it must be pled and proved by the defendant) and can work either as an excuse or a justification. (Cf. Suber, 1998, p. 91.) When a defendant invokes necessity as an excuse, he means to say that he lacked the requisite mens rea (i.e. criminal intent) when he acted. A classic example of excuse is the insanity defense (diminished mental capacity) in criminal cases. By contrast, when necessity is invoked as a justification, the defendant is conceding that he intentionally breached a legal duty but that his breach was the lesser of two evils. Classic examples of common law justification are self-defense and defense of others.

In both of these classic defense theories (excuse and justification), the key point is that the doctrine of necessity has the effect of releasing one from legal responsibility. (Cf. Suber, 1998, p. 84.) In other words, although the law as a whole remains in place, necessity (when successfully invoked) authorizes a narrow exception to the law based on the facts of a particular case. Theoretically, this view of necessity—i.e. necessity as a legal exception—is ex post and narrow. Or in the words of one legal scholar (Agamben, 2005, p. 24): “more than rendering the illicit licit, necessity acts here to justify [or excuse] a single, specific case of transgression by means of an exception.”

By way of example, consider the case of the fake bishop, that is, “the case where a person who could not accede to the episcopate [but who] has in fact already been ordained as bishop” (Agamben, p. 26). (This canonical example (pun intended) originally appeared in the work of the jurist Gratian, pictured below.) In this case, the “transgressive deed” or rule-violation has already occurred. So, what is to be done? The Church could either elect to strip the pretender of his position (once the error is discovered) or to ratify the anomaly by leaving things as they are. If the latter option is chosen, the Church is not suspending its rules (i.e. the qualifications necessary for a person to be appointed a bishop in future cases); instead, it is merely making an ex post exception to its rules in this one case. Thus, on this narrow view of the doctrine of necessity, “Necessity … merely releases a particular case from the literal application of the norm.” (Agamben, p. 25.)

In our next blog post (9/5), we shall consider an alternative and more broad theory of necessity: necessity as a source of law.

Image result for gratian jurist

Sources: Giorgio Agamben, State of Exception, University of Chicago Press (2005); Peter Suber, The Case of the Speluncean Explorers: Nine New Opinions, Routledge (1998).

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