Unformatted text preview: ) there were no other legal alternatives to violating the law; and (5) the legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue. Finally, a sixth factor generally has been held to require that the circumstances that occasion the necessity were not caused by the negligent or reckless acts of the defendant in the first instance. Courts generally require that all the factors be proven for the defendant to succeed in the necessity defense. In this discussion of terrorism and the necessity doctrine, the Author will refer to these six factors as follows: (1) the choice of evils factor; (2) the imminence factor; (3) the causal nexus factor; (4) the legal-way-out factor; (5) the preemption factor; and (6) the clean-hands factor. The necessity doctrine permits law violations to avert the greater of two evils
John Alan Cohan, STETSON LAW REVIEW, Spring 2006, p. 905 The doctrine of necessity holds that certain conduct, though it violates the law and produces a harm, is justified because it averts a greater evil and hence produces a net social gain or benefit to society. Granville Williams expressed the necessity doctrine in this way: "Some acts that would otherwise be wrong are rendered rightful by a good purpose, or by the necessity of choosing the lesser of two evils." Williams offered the following example: "Suppose that a dike threatens to give way, and the actor is faced with the choice of either making a breach in the dike, which he knows will result in one or two people being drowned, or doing nothing, in which case he knows that the dike will burst at another point involving a whole town in sudden destruction. In such a situation, where there is an unhappy choice between the destruction of one life and the destruction of many, utilitarian philosophy would certainly justify the actor in preferring the lesser evil." The utilitarian idea is that certain illegal conduct ought not be punished because, due to the special circumstances of the situation, a net benefit to society has resulted. This utilitarian rationale is sometimes criti...
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This document was uploaded on 11/20/2013.
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