Note: this is the fourth of five posts on the doctrine of necessity.
In our previous posts (9/1, 9/4, and 9/5), we referred to the work of legal scholar Giorgio Agamben (in particular, his beautiful book State of Exception), and building on his ideas we presented two competing theories of the doctrine of necessity: one narrow; the other broad. Under the narrow view of necessity, this legal doctrine operates as a limited dispensation or ex post exception to law, one that excuses or justifies an illegal act when that act is the lesser of two evils, while under the broad view, the doctrine of necessity is turned on its head. According to the broad view: necessity is the law (i.e. the ultimate ground and original source of law), so all necessary acts are inherently lawful ex ante.
Both of these competing theoretical pictures of necessity, however, are problematic. Generally speaking, the narrow view is too narrow, while the broad view is too broad. Let’s discuss the problems with the narrow view first. If necessity functions as a dispensation (i.e. an excuse or justification), then the “law of necessity” is not (at least not in the literal sense) a legal doctrine–hence the paradoxical maxim “necessity knows no law.” Instead, it is something external to law, operating as an ad hoc and extra-legal exception to law. The broad view, by contrast, is problematic because it is inconsistent with how the doctrine of necessity actually operates in practice. If necessity were the true source of law, for example, then the defense of necessity should operate as a legal trump card in civil and criminal cases. Yet it is the defendant who is always required to plead and prove that he acted in necessity.
Accordingly, here we present a third picture of necessity: necessity as a safety valve or gap filler. All legal systems (and all systems of rules generally) will have unavoidable gaps or blind spots. Consider, for example, H.L.A. Hart’s example (from the 1950s) of a local ordinance prohibiting motor vehicles in the park. A situation may occur that was unforeseeable when the law was first enacted. Does a miniature drone, for example, fall under the definition of a motor vehicle? Or the law in question might be open to multiple or conflicting interpretations, such as the meaning of the word “willful” in the simple murder statute in Lon Fuller’s fictional “Case of the Speluncean Explorers.” (See our blog post of 8/29.) Given that blind spots or gaps are inevitable in law, the doctrine of necessity (like the various rules of equity in common law systems) can be seen as a safety valve or gap-filling device, but one that authorizes judges, police, and even private citizens to literally take the law into their own hands in emergency situations. On this gap-filling or safety-valve view of necessity, we are all law-makers … We will discuss the implications for this third view of necessity in our next blog post (9/7).