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Excused Necessity in Western Legal
Philosophy
Khalid Ghanayim
Introduction
The possibility of saving a human life by causing death of another person who was
not involved in creating the danger is a situation that has fascinated the legal world
since antiquity. A well-known case in western thought is the dilemma referred to
as "two men and a plank." Two men are shipwrecked on the high sea. As their
strength ebbs and they are about to drown, they see a wooden plank that is just large
enough to support one man. There are two variations to this case. According to
one version, when one of the men has already managed to grab hold of the plank
and lie upon it, the other-in order to save his own life-pushes the first off the
plank and drowns him. In the other version, neither has possession of the plank.
The two men race toward it. One of them pushes the other, and grabs hold of the
plank. The question is whether a person may save himself at the expense of
another's life?
This case has been the cause of much debate among jurists and philosophers.
Some legal systems regard it as a case of necessity that affords an excusing defence.
An actor who saves his own life at the expense of another enjoys the defence of
excusing necessity, and will not be punished for his conduct.' Other legal systems
view the situation as one that affords a defence that significantly mitigates, and
that may completely exempt the actor from punishment. In other words, the defence
requires that the court significantly diminish the criminal responsibility of an actor
who saves his own life at the expense of another, and the court may (but is not
obliged to) exempt the actor from any punishment.2 As opposed to these two
approaches, some legal systems grant no defence whatsoever. The actor, at least
in principle, bears full criminal responsibility for murder.'
Some of world's greatest philosophers, from antiquity to the present, have
addressed the Plank problem. The debate is not confined to the issue of "solving
the riddle," but extends even to the question of its authorship and origin. Some
attribute the Plank case to the Greek sceptic Carneades, who was Scholar of the
This research was made possible through a grant from the Government of Canada: Canadian Studies
Faculty Research Award Program, The Israel Association for Canadian Studies and Halbert Exchange
Program, and The Minerva Foundation. I would like to thank Klaus Bernsmann, George Fletcher,
Randal Graham and Richard Bronaugh for their questions, criticism and fruitful remarks. Special thanks
to Kaye Joachim and the staff of Bora Laskin library, University of Toronto, who supported my
research, and to Avinoam Sharon for translating the paper into English.
1. As in German, Austrian, Swiss, Italian, Spanish, Portuguese, Japanese, South-Korean, Israeli
and (perhaps) Canadian law. See K. Ghanayim, "Excused Necessity: A Defence in Criminal
Code" [unpublished, copy with author].
2. As in the Scandinavian legal systems; see Ghanayim, supra note 1.
3. This is the case in English law; see Ghanayim, supra note 1.
Canadian Journal of Law and Jurisprudence
Vol. XIX, No.1 (January 2006)
Ghanayim
Academy in the second century B.C. Thus, the case is often referred to as the Plank
of Carneades.' Cicero ascribes it to the second century B.C. stoic philosopher
Hecaton of Rhodes.' Others assign it to Carneades' opponents.6
The case is deemed a "standard in European legal literature."7' The problem posed
by this example, and others like it, was also addressed in ancient Eastern philosophy
(Islamic and Jewish philosophy). Thus, we find a discussion between Rabbi Akiba
and Ben Petura of a case of two men lost in the desert, who have only one bottle
of water. If they share the water, both will die of thirst before they reach civilization.
Islamic legal philosophy deals with same issues and discusses the question if the
necessity is a good defence.8 The questions posed by the Plank of Carneades, and
situations like it, have served as the subject of philosophical debate throughout the
world, and throughout the ages. Moreover, the plank case is the basis of a dramatic
poem.'
In Roman times, situations that afforded a defence of necessity were treated casuistically, but the Roman jurist Domitus Ulpian believed that any act intended to
avoid a threat to human life was not punishable." Canon Law continued in the casuistic mode. Although Canon Law took the view that necessity makes the prohibited
permissible and mitigates punishment, and that necessity is not subject to
law -quod non est licitum in lege, necessitasfacit licitum, necessitas non habit
legem. However, these statements remain obscure, and only the case of stealing
food in a situation of hunger merited any widespread attention." The approach was
derived above all from the religious injunction to "love thy neighbour as thyself,"
as developed primarily by St. Thomas Aquinas. Aquinas held that the duty to love
one's neighbour prohibited theft, including the theft of food. Each person must bear
4. See A. Aichele, "Was ist und wozu taugt das Brett des Karneades" (2003) I1 Jahrbuch fur Recht
und Ethik 245; E. Weiglin, "Das Brett des Karneades" (1942) 88 GS 116; W. Ktiper, Immanuel
Kant und das Brett des Karneades (Heidelberg: MUller, 1999); J. Hruschka, "On The History
of Justification and Excuse in Cases of Necessity" in FestschriftforSummers-Prescriptive
Formalityand Normative Rationality in Modern Legal Systems (Berlin: Duncker & Humblot,
1994) 337.
5. See Cicero, On Duties, ed. by M.T. Griffin & E.M. Aktins (Cambridge: Cambridge University
Press, 1991) Book III, para. 89 at 134; A.R. Dyck, A Commentary on Cicero, De Officiis (Ann
Arbor: University of Michigan Press, 1996) at 612.
6. See Ktper, supra note 4.
7. Hruschka, supra note 4 at 339.
8. See Babylonian Talmud, Bava Metzia 62a. On Judaism and Islam see K. Ghanayim, "Excused
Necessity in Eastern Legal Philosophy" [unpublished, copy with author].
9. See Henrik Ibsen, Peer Gynt, trans. by Peter Watts (London: 1966) Act Five at 165.
10. See K. Janka, Der strafrechtlicheNotstand (Erlangen: Deichert, 1878) 34ff.
11. See K. Rabe, Die Entwicklung des Notstandes von der Auflddrungszeit bis zum Reichsstrafgesetzbuch (Hannover: Gottingen Universit~it Dissertation, 1930) 10; Janka, supra note 10 at 49ff; W.
Ktiper, "Notstand I (strafrechtlich)" in A. Erler & E. Kaufmann (Hrsg.), Handworterbuchzur
deutschen Rechtsgeschichte, Band III (Berlin: Schmidt, 1984) 1065f; R. Stammler, Darstellung
der strafrechtlichen Bedeutung des Notstandes (Erlangen: Deichert, 1878) at 17-21; A. Meissner,
Die Interessenabwagungsformelin der Vorschrift iiber den rechtfertigendenNotstand (Berlin:
Duncker & Humblot, 1990) at 73f; K. Bernsmann, "Entschuldigung" durch Notstand (Ko1n:
Heymann, 1989) 259f; D. Cohen, "The Development of the Modern Doctrine of Necessity: A
Comparative Critique" in A. Eser & G. P. Fletcher, eds., Justificationand Excuse: Comparative
Perspectives (Huntington, NY: Juris, 1999) 11(Freiburg: Eigenverlag Max-Planck Institut fiir
auslandisches und internationales Strafrecht, 1988) 971 at 977.
Excused Necessity in Western Legal Philosophy
his own burden in life, and may not transfer it to the shoulders of another. An
exalted purpose does not make a prohibited, anti-social act permissible (the ends
do not justify the means). However, when an immediate threat to life can be averted
only by stealing food, such theft is permitted. This exception, as well, is based upon
the command to love thy neighbour as thyself. When human life is under immediate
threat, private property becomes public property for the public good- in necessitate
omnia sunt communia-and any endangered person may use it to avert the threat.
The "true" owner of the property must come to the aid of his fellows, and accept
the infringement of his proprietary rights (the duty of social solidarity)."
This approach was also adopted by Hugo Grotius. '3The rationale for the
approach was the human survival instinct. It should be noted that the prevailing
view was that the rationale of the human survival instinct-and, therefore, the necessity defence itself-applied only in regard to property damage. The necessity
defence could not be called upon to justify the infringement of a legally protected
interest if that interest were life or physical integrity. This conclusion follows
ineluctably from St. Thomas Aquinas approach, because unlike property, a human
life or a human body cannot become a public asset. Moreover, the prohibition upon
killing is a religious duty that does not admit of taking an innocent life in a case
of necessity.'4 Some scholars, however, recognized the necessity defence in the case
of abortion.'
In this paper, I intend to present the positions of Pufendorf, Kant, Fichte, and
Feuerbach on the question of the applicability of the necessity defence to cases
of a life for a life. It was Pufendorf who revived the Plank dilemma and made it
an attractive subject for philosophical debate. 6 Pufendorf greatly influenced the
philosophers who followed him. 7 Kant is the philosopher who exerted the greatest
12. On the approach of Thomas Aquinas, see Meissner, supra note 11 at 78f; J. Renzikowski,
Notstand und Notwehr (Berlin: Duncker & Humblot, 1994) 192; J. Kohler, "Rechts- und
Wirtschaftsphilosophie: Das Notrecht" (1914/15) 8 ARSP 411 at 414ff.
13. See Grotius, De Jure Belli Ac Pacis (Paris: 1625)- Vom Recht des Krieges und des Friedens
(Neuer deutscher Text und Einleitung von Schaetzel, Tilbingen: Mohr, 1950), 2. Buch, 2. Kapitel,
VI-IX, 149ff.
14. St. Thomas Aquinas recognized the state's right to put people to death, as well as the right of
self-defence. See Kohler, supra note 12 at 416ff. We should also mention the view of English
scholars who rejected the necessity defence where it would involve the killing of a third party,
because they reasoned that the sovereign could not abrogate a religious prohibition. Also see
W. Blackstone, IV Commentaries, 16th ed. (London: Cadell, 1825) 30ff; and see I. Kant, The
Metaphysics of Morals, trans. and ed. by Mary J. Gregor (Cambridge: Cambridge University
Press, 1996) at 337. See infra note 88 on Hobbes, who took the view that the State (the Law)
is not religious, and is not bound by religious obligations. Therefore, Hobbes recognized necessity
as a defence even when the defensive conduct involved taking a life.
15. See Kiper, supra note 11 at 1065f; Janka, supra note 10 at 51ff; Stammler, supra note II at 21ff.
The Catholic moralists did not accept necessity as a defence in the case of an abortion intended
to save a woman's life. They took the view that abortion is prohibited even when it is necessary
in order to save the mother's life, see Kohler, supra note 12 at 419.
16. See J. Hruschka, "Zurechnung und Notstand: Begriffsanalysen von Pufendorf bis Daries" in J.
Schr6der (Hrsg.), Entwicklung der Methodenlehre in Rechtswissenschaft und Philosophievon
16. bis zum 18. Jahrhundert(Stuttgart: Steiner, 1998) 163. It should be noted that the writings
of Hobbes and Bacon influenced Pufendorf.
17. See J. Hruschka, "Zur Interpretation von Pufendorfs Zurechnungs- und Notstandslehre in der
Rechtslehre der Aufkhirung" in M. Beetz/G. Cacciatore (Hrsg.), Die Hermeneutik im Zeitalter
der Aufldrung (K61n: Boehlau 2000) 181ff.
Ghanayim
influence upon German law. 8 The German legal system was the first to address
this subject to any significant extent. German law chose to recognize necessity as
a defence in situations of a life for a life, and thus greatly influenced the many legal
systems that chose to follow the same course. 9
Kant's philosophical approach greatly influenced the views of Fichte," and of
Feuerbach.2 ' Fichte will be examined because his approach is very similar to that
of Pufendorf. Feuerbach was a German philosopher whose views influenced the
criminal law of Bavaria, which formed the basis of the German Criminal Code of
1871,2' - which remains in force to this day. However, it is Kant's philosophy that
will form the main focus of this examination. Kant's philosophy is the most complex, and it is the approach that exerted the greatest influence upon Continental
law. Moreover, of late, Anglo-American jurists have been showing a growing interest in Kant's writings,23 and interest in Kant's approach to the Plank dilemma is
no longer limited to scholars of the criminal law but has come to the attention of
private law scholars, as well.24 The main purpose of this article is to present the
approaches of the philosophers on the plank case, and so the excused necessity.
The intention is that this article have to be a good basis for discussing and analysing
the excused necessity in criminal law; that-because there are papers that present
Kant's view on excused necessity in different, and I think in a wrong way.25 This
paper will not discuss the views of the philosophers in light of modem theories,
26
such as the Utilitarian theory and the Law and economics school.
It is worth noting that the philosophers in the 17th century, such as Pufendorf
and Antonius Matthdius ,27and even earlier, discuss not only the scope of the defence,
but also the nature of the defence, such as justifying defences, excusing defences,
and defences that only negating punishment. For example, Pufendorf distinguishes
between a lawful act performed under circumstances of self-defence and an act
that warrants only excuse.
The distinction between justification and excuses is well-known in all legal systems, and accepted in most codes, such as the German penal code.2 8 Few scholars
18. See H-H. Jescheck, "Methoden der Vorbereitung und Durchfuhrung der deutschen
Strafrechtsreform" in Jescheck (Hrsg.), Strafrechtsreform in der Bundesrepublik Deutschland
und Italian (Baden-Baden: Nomos, 1981) 11, 12f; U. Neumann, "Der strafrechtliche
N6tigungsnotstand: Rechtfertigungs- oder Entschuldigungsgrund?, 1988 JA 329, 332; and G.P.
Fletcher, Rethinking Criminal Law (Boston, MA: Little, Brown, 1978) at 819ff.
19. Infra note 184.
20. See text belonging to infra notes 61-68.
21. See text belonging to infra notes 183-92.
22. See text in infra note 184 on excusing necessity.
23. See e.g., A. Brudner, "A Theory of Necessity" (1987) 7 Oxford J. Legal Stud. 339 at 352ff; D.
Klimchuk, "Necessity, Deterrence, and Standing" (2002) 8 Legal Theory 339 at 344ff; A.
Ripstein, "In Extremis" (2005) 2 Ohio St. J. Crim. L. 415.
24. See e.g., E.J. Weinrib, "Deterrence and Corrective Justice" (2002) 50 UCLA L. Rev. 621 at 632ff.
25. See text belonging to infra notes 130 and 159.
26. These Utilitarian theories, in modem law sense like Bentham's, are rejected by the philosophers
like Kant; see text belonging to infra notes 154-56.
27. See H. Welzel, Die NaturrechtslehreSamuel Pufendorfs (Berlin: de Gruyter, 1958) 89f; Janka,
supra note 10, 80ff; Rabe, supra note 11,13ff; Hruschka, supra note 4, 337ff; Hruschka, supra
note 16, 169ff.
28. See infra note 184 on sec. 35 of the German penal code.
Excused Necessity in Western Legal Philosophy
continue to adopt the view that the distinction between justification and excuses
is without any ramification. They claim is that criminal punishment is the means
for implementing legal rules; it is the criminal justice system's "teeth" in enforcing
legal principles. Without punishment, compliance with the law is a matter of personal choice. Viewing a particular act as one that is antisocial and excused is merely
a recommendation lacking practical effect. The protection afforded to the interest
infringed by the antisocial but excused conduct is nominal and theoretical. In the
instant case, refraining from imputing criminal responsibility to the actor for antisocial excused conduct weakens the protection granted to the interest, to some
extent. Moreover, when society looks at the bottom line of conviction or acquittal,
it makes no difference whether the conduct was justified and socially acceptable,
or antisocial but legally excused.29
Although no criminal penalty is imposed upon an excused actor, i.e., the actor
is completely acquitted of punishment, such an acquittal does not play the same
role or bear the same significance as being exonerated due to the justification of
the conduct. The criminal law fulfils an educational role that is also expressed in
the distinctions that it makes among different kinds of acquittal. Thus, viewing an
act as one of justified necessity, like saving a life at the expense of damaging property, indicates that the act is acceptable in the eyes of society, and that doing it is
both correct and desirable. The public is encouraged to perform like acts. As
opposed to this, when conduct is merely excused, like saving one life at the expense
of another, the implication is that the act is both antisocial and prohibited. Society
refrains from imposing criminal punishment in recognition of the actor's dire circumstances. The acquittal is not an expression of the conduct's acceptability.
Therefore, reinforcing public faith in respecting social values and criminal norms
requires that we clearly distinguish among the various defences to criminal liability.
Moreover, the public distinguishes among the various defences, as well as among
the different types of acquittal.3" Thus, for example, damaging property in order
to save a human life is a justified act by reason of justified necessity. As opposed
to this, an antisocial act that is merely excused, as in the case of a life for a life
in a situation of necessity, is a prohibited act. The argument that society does not
afford importance to the reasons for acquittal-e.g., acquittal by reason of justified
necessity, as opposed to acquittal by reason of excused necessity--stands in stark
contrast to the worldview of modem societies. The argument would have us equate
property and life, which is equivalence unacceptable to any modern society.
Additionally, the distinction between a justifying defence and an excusing defence
is of practical consequence. One may not oppose or defend oneself against conduct
done under the circumstances of justifying defence. Thus, one may not act to prevent
29. See e.g., M. Gur-Arye, "Should a Criminal Code Distinguish between Justification and Excuse?"
(1992) 5 Can. J. L. & Jur. 215 at 229.
30. See W. Perron, "Die Stellung von Rechtfertigung und Entschuldigung im System der Strafbarkeit"
in A. Eser & H. Nishihara (Hrsg.), Rechtfertigung und Entschuldigung IV (Freiburg: Eigenverlag
Max-Planck-Institut fUr auslindisches und internationales Strafrecht, 1995) 70; A. Eser,
"Justification and Excuse: A Key Issue in the Concept of Crime" in A. Eser & G.P. Fletcher,
eds., supra note II at 17, 24.
Ghanayim
damage to property that is intended to save a life. As opposed to this, a person has
a right to oppose (in self-defence or by necessity) conduct that is merely excused.3
Therefore, there are two alternative courses, or two possibilities for accomplishing
the purpose of the criminal law: Either an act is justified and permitted, or it is
unlawful and prohibited.32 The law must distinguish the defences to criminal responsibility, and cannot employ such terms as "does not bear criminal responsibility."
The law cannot define necessity as a situation that negates punishment without
defining it as a defence to criminal liability. Such a definition could lead to the mistaken conclusion that acting under such circumstances is permissible and socially
acceptable." Such an approach is unacceptable because when we in justify conduct
performed in a state of necessity that causes harm equal to the harm prevented we
send a message that the actor's interests are to be preferred to those of his innocent
victim, and may even make that assumption. An approach that justifies taking the
life of an innocent bystander in order to save the life of the actor comprises an
underlying assumption that the actor's life is more valuable than the life of his victim. The victim's autonomy is not protected. He is no longer an end in himself,
but to some extent, a means for protecting the life of the actor. A society that values
the individual and his needs as a free, autonomous being, cannot justify conduct
that inflicts harm equal to that it prevents. Such conduct is antisocial, and
prohibited. ' .
1. Pufendorf was the first German philosopher to attempt to establish general
principles concerning necessity. His treatises were the first to address general issues
of criminal law and jurisprudence. His writings primarily concentrate on the general
part of criminal law, that is, the general principles for criminal liability (the structure
of criminal offences), and he established a doctrinal distinction between the general
part and the specific part of criminal law. His works were characterized as treatises
on the general part of the criminal law (the theory of the criminal offence), and
on the general part of jurisprudence.
31. See M. Kremnitzer & K. Ghanayim, "Proportionality and the Aggressor's Culpability in SelfDefense" (2004) 39 Tulsa L. Rev. 875.
32. See BVerfGE 39, 1, 44; HJ Hirsch, "Die Stellung von Rechtfertigung und Entschuldigung im
Verbrechenssystem aus deutscher Sicht" in A. Eser & W. Perron (Hrsg.), Rechtfertigung und
Entschuldigung III (Freiburg: Eigenverlag Max-Planck Institut fuir ausliindisches und internationales Strafrecht, 1991) 39f; A. Onagi, Die Notstandsregelung im japanischenund deutschen
Strafrechtim Vergleich (Baden-Baden: Nomos, 1993) 45. Also see Kant's approach infra notes
94ff, according to which an act that inflicts harm to the life of the actor can be either justified
(in circumstances of self-defence) or unlawful (in a case of necessity); there is no third option.
33. See also The Queen v. Dudley and Stephens, (1884) 14 Q.B.D. 273, in regard to the problem
in English law, which rejects necessity based upon an absence of reasonable expectation of normative conduct, due to the claim that exoneration could be taken to mean that the conduct is
justified. Also see the problems associated with trying the case in American law, People v. Goetz,
68 NY 26 96 (1986).
34. On these distinction, see Eser, supra note 30 at 17; J. Hruschka, "Verhaltensregeln und
Zurechnungsregeln" (1991) 22 Rechtstheorie 449; H-H. Jescheck & Th. Weigend, Lehrbuch
des Strafrechts Allgemeiner Teil, 5. Aufl. (Berlin: Duncker & Homblot, 1996) 332-33; Fletcher,
supra note 18 at 761; G.P. Fletcher, "Should intolerable conditions generate a justification or
an excuse for escape?" (1979) 26 UCLA L. Rev. 1359; see also Perka et. al. v. The Queen (1985)
14 C.C.C. (3d) 385; R. v. Ruzic, (2001) 153 C.C.C. (3d) 1.
Excused Necessity in Western Legal Philosophy
In 1668, Pufendorf5 became the philosopher to define necessity as a general
doctrine of criminal law that applies to all criminal offences, and which is part of
the general part of the criminal law.36 Up until then, necessity was treated casuisticaly,37 and only applied to a small number of offences. Pufendorf became interested in the case of an actor who, through no fault of his own, finds himself in a
situation that endangers his life or presents a severe threat to his limb, and that can
be avoided only by infringing the legally protected interests of a third party. In such
a case, Pufendorf holds that: "self-preservation is valued so highly that it is held
to exempt a man in many cases from the obligation of the common laws, if that
is the only way it can be secured. For that reason, 'necessity', it is said, 'knows
no laws'."3
In a situation of necessity, the actor can take whatever action may be necessary
to thwart the impending danger, even if that action harms the legally protected interests of another, including life, physical integrity, health, liberty or property. This
approach represented an expansion of the legal situation that then existed, which
allowed only for the possibility of inflicting harm to property (and to a foetus in
39
the case of abortion).
The underlying rationale of necessity is human self-preservation -imbecillitas
humana.4 In situations that threaten life, severe physical harm, or impairment of
health a person cannot be obligated to refrain from saving himself. "Since man values his own preservation so highly, one does not readily presume that any obligation
has been imposed on him which should take precedence over his own safety."'" The
human instinct for self-preservation is stronger than any duty. Of course, God (religious law) and the Sovereign (positive law) can require that people refrain from
endangering others, or even oblige them to put their own lives at risk. But the situation of necessity is different: "legal obligations are not presumed to be always
so strict ... laws, particularly positive laws, and all human costumes are generally
regarded as making an exception for the case of necessity." 42
"Necessity knows no law" is the rule according to Pufendorf. In a case of necessity, the law does not impose an obligation, i.e., the legal prohibition loses its imperative force. There is simply no law that requires that a person refrain from
preserving his life, even if saving oneself comes at the cost of harming another.
Interestingly, according to Pufendorf, the exemption from criminal responsibility,
35. Pufendorf's theory is referred to as the "Legal Vacuum Theory."
36. It should be noted that English thinkers like John Locke, French thinkers like Rousseau, American
scholars like John Wise, and Italian scholars, as well, were influenced by Pufendorf. See Welzel,
supra note 27 at 2f.
37. See text belonging to supra notes 10-15.
38. S. Pufendorf, On the Duty of Man and Citizen According to Natural Law, ed. by James Tully,
trans. by Michael Silverthorne (Cambridge: Cambridge University Press, 1991) Book I, Ch. 5,
para. 18.
39. See Welzel, supra note 27, 91; KUper, supra note 4, 31; see also text belonging to supra notes
11-15.
40. See Pufendorf, supra note 38, para. 18; and see Janka, supra note 10, 78ff; Welzel, supra note
27, 89ff; H. v. der Linde, Rechtfertigung und Entschuldigung im Strafrecht? (Frankfurt a/M: Lang,
1988) 39. Pufendorf relied upon the doctrine of self-preservation as developed by Hobbes.
41. Pufendorf, supra note 38, Book 1, Ch. 5, para. 18.
42. Ibid.
Ghanayim
i.e., the rationale of necessity is not the extreme emotional state in which the actor
finds himself, but a human instinct for self-preservation that is not obliged to respect
criminal norms. Thus Pufendorf states: "For this reason, 'necessity' it is said,
'knows no laws'."
Another question that interested Pufendorf was the nature of the necessity
defence. Is necessity a justifying defence that grants the actor a right? Is it an excusing defence that negates culpability? Or is it a defence that merely negates the imposition of punishment, i.e., a defence that applies only if the actor fulfils all of the
elements of the offence, including culpability? Pufendorf was of the opinion that
in a case of necessity there is no offence. Thus, he rejected the view of the Dutch
philosopher Antonius Matthius, according to which necessity is but a defence to
punishment for an offence that has been committed.43 In a case of necessity, there
is simply no offence.
In stating that the law does not govern necessity, Pufendorf backed away from
question of the nature of necessity. According to Pufendorf, necessity is neither
a justifying defence nor an excusing defence, since the law does not govern necessity, i.e., it does not fall within the purview of the law and is injusticiable.' Therefore
the situation does not admit of a criminal offence. One might say that, according
to Pufendorf, penal norms are instructions to do or not to do. They are intended
to instruct individuals to adopt certain forms of conduct as opposed to others, when
such a choice is possible, and the individual is at liberty to make such a choice.
When an individual cannot be required to adopt a particular course of action, as
in the case of necessity for the purpose of preserving human life, the criminal law
is without force. In such cases, there is no criminal prohibition, the situation does
not fall within the scope of the offence, and is of no concern to the criminal law.
The conduct exists in a legal vacuum and is injusticiable.
Pufendorf brings examples to demonstrate his approach. He refers to a situation
very similar to the American Holmes case,45 which also shares certain characteristics
of the English Dudley and Stephens case.' Pufendorf's case is described as follows:
If in a shipwreck more men have leapt into a lifeboat than it can carry and the lifeboat
does not belong to one of them by any particular right, it seems one should draw lots
as to who should be thrown overboard, and anyone who refuses to take his chance
in the lottery may be tossed out in any case without reference to the draw, on the
ground that he intends the death of all of them. 7
43. On the approach of Matthjius, see Janka, supra note 10 at 73ff. Also see the position of J.S.F.
BCihmer, according to which the instinct of self-preservation negates culpability (the anti-social
nature of culpability-qualitasdes dolus iniuriosi), in other words, it is a defence of absence
of culpability. See KUper, supra note II at 1066.
44. It must be noted that the view of Pufendorf "Law does not govern necessity" does not mean that
necessity defence is not subject to the law or is not of interest for the law. According to Pufendorf,
the law has to define the necessity defence and its scope, and than all cases that fall within the
scope of the necessity defence can not constitute a criminal offence; these cases are outside the
law and injusticiable. It means that necessity is a criminal law defence, but not one of justification,
excuses or even defence negating the imposition of punishment for a committed offence.
45. US v. Holmes, 26 Fed. Cas. 360.
46. The Queen v. Dudley and Stephens, (1884) 14 Q.B.D. 273.
47. Pufendorf, supra note 38 at para. 20.
Excused Necessity in Western Legal Philosophy
Pufendorf also addresses the Plank of Carneades case, and takes the view that each
can48 push the other in order to save himself, even if it means the certain death of
the other.49 Pufendorf also considers the case of a person who is being pursued by
an assailant who threatens his life, and whose escape route is blocked by an innocent
bystander. According to Pufendorf, the pursued person must, to the extent possible,
ask the person standing in his way to step aside. If the bystander does not step aside,
or if it is not possible to ask, then pushing him aside becomes permissible. However,
when the person blocking the way is "an infant or cripple, there will at least be
some excuse for the pursued."5
In her discussion of the Plank case, Professor Finkelstein' presents the view
of Hecaton, according to which the two men must cast lots in order to decide which
must relinquish the plank and die so that the other might live. She also presents
Pufendorf's approach, and expresses the opinion that Pufendorf "moved far beyond
Hecaton." She adds: "Moreover, Pufendorf thinks that even if one has drawn the
short straw in a lottery, one is entitled to resist being pushed off the plank when
the other attempts to enforce the bargain. The plank problem has shifted from a
52
problem of distribution to one of individual right."
One might disagree with Professor Finkelstein's characterization of Pufendorf's
view. In the case of a boat, Pufendorf requires a lottery, while he does not require
a lottery in the Plank case. This distinction can be explained by the fact that in the
case of a boat, there is time to cast lots, while such an opportunity is absent from
the Plank case, where the two do not have any practical ability to hold a lottery. 3
If the possibility existed, it may be assumed that Pufendorf would require a lottery,
or at least would not reject the idea.
The problem with a lottery, from the perspective of modem law, is that it is not
binding. The person who loses the draw can withdraw his consent, since we are
concerned with life, which is not a freely dispositive value. 4 A person's agreement
to participate in a lottery does not place him under any legal obligation.
From a historical perspective, one can understand a demand for a lottery as a
48. The term "can" does not imply a legal right or license, since Pufendorf does not see necessity
as a justifying defence. According to Pufendorf, an act performed in a situation of necessity is
performed in a legal vacuum. The actor has the physical ability to act, as opposed to the legal
ability-in the sense of a right-to infringe the legally protected interests of others.
49. See Welzel, supra note 27 at 89ff; von der Linde, supra note 40 at 38f; Bernsmann, supra note
I1 at 281 f. Thomasius adopted Pufendorf's approach in its entirety, but took the view that the
survival instinct is not a doctrine that is based upon an absence of a reasonable expectation to
face the danger, as Pufendorf believed, but upon the natural and religious right to physical survival;
see Rabe, supra note I1 at 16; Janka, supra note 10 at 81. It is interesting to note that Pufendorf,
supra note 38 at para. 24 extended the underlying rationale of necessity. While in the case of
a danger to life, Pufendorf is of the opinion that the survival-instinct doctrine allows (not in sense
of right) the actor to infringe any protected interest in order to save his life, in the case of property
versus property he expresses the opinion that the actor can inflict harm upon another's property
in order to rescue his own, as the damaged property is not more valuable than the rescued property; see Welzel, supra note 27 at 92; Rabe, supra note I I at 15; Janka, supra note 10 at 79.
50. Pufendorf, supra note 38 at para. 22.
51. C.O. Finkelstein, "Two men and the Plank" (2001) 7 Legal Theory 279.
52. Ibid at 280.
53. Also see Bernsmann, supra note II at 345.
54. See Kant, supra note 14 at para. 335.
Ghanayim
matter of justice. In the seventeenth century-as in the nineteenth century, which
witnessed the American Holmes case, and the English Dudley and Stephens
case-shipwrecks on the high seas were not uncommon. People were thrown off
lifeboats to prevent sinking, and shipmates were killed and eaten by starving survivors. In order to prevent arbitrariness, and to allow some sense of a fair chance
for all the survivors, a lottery was required.5 Holding a lottery came to be viewed
as a "custom of the sea."56 Holding a lottery is not a condition that derives from
the human-survival-instinct rationale that underlies necessity, and even contradicts
that rationale.
As stated, Pufendorf does not grant a person right to act in life-threatening circumstances. Necessity is not a justifying defence. Justification is recognized only
in self-defence against an unlawful assailant. Pufendorf employs such descriptions
as "lawful defence," and "the right to self-defence."" A situation of self-defence
grants a right, which constitutes a justifying defence. In a situation of self-defence,
the assailant must accept the infringement of his interests, i.e., he enjoys no right
to defend himself. 8 However, a situation of necessity grants no right, and does not
constitute a justifying defence. According to Pufendorf, there is no offence. In considering a situation of stealing food to prevent starvation, Pufendorf is of the opinion
that the owner is not obliged to accept the theft when that theft will leave him starving." One may, therefore, infer that according to Pufendorf, a victim in a situation
of necessity-such as the person pushed off the plank-need not accept the
infringement of his life, and he can defend himself.' ° The situation of necessity creates a general defence, which is neither a justification nor an excuse; an act done
under the circumstances of necessity is outside the preview of the law-injusticiable. In the necessity situation the people may act in a way that rescue the life
from the endangering situation; i.e. the people do not have a right to act, have not
to act in such way; most people are likely to act in such way, as a reaction of the
human self-preservation.
Pufendorf's approach is open to criticism. Pufendorf takes the position that
when an assailant is pursuing his victim and threatening his life, the victim must,
to the extent possible, ask bystanders to clear the path. If they do not stand aside,
or if the victim lacks the time to ask, he enjoys the necessity defence under which
the situation does not fall within the preview of law. However, when the people
blocking the victim's paths is an infant or cripple the victim enjoys only an excusing defence. In other words, the victim in the first situation is better off. Thus,
the situation of necessity (the conduct that does not fall within the preview of law)
is preferable to that of excuse. This distinction is not clear, particularly when the
55. Also see Bernsmann, supra note II at 338.
56. See A.W.B. Simpson, Cannibalismand the Common Law (Chicago, 1L: University of Chicago
Press, 1984) at 144-145.
57. See the German text of his book Ober die Pflicht des Menschen und des Biirgers nach dem Gesetz
der Natur (Frankfurt: Insel, 1994) at para. 11-13. The English translation renders these as "defence
may rightly be made," and "innocent self-defence."
58. See Pufendorf, supra note 38 at para. 13.
59. See ibid. para. 23.
60. But see Pufendorf's statements supra notes 47 and 50.
Excused Necessity in Western Legal Philosophy
victim in the first situation lacks the time to ask bystanders unaware of his plight
to stand aside, and the underlying principle for the defences in both cases is the
human self-preservation.
II. Fichte's 6' approach to necessity is identical to that of Pufendorf. Fichte does
not develop a general theory of necessity, and does not define its scope. The only
situation that Fichte addresses is that of the Plank of Carneades. Fichte is critical
of his predecessors' debate upon the necessity defence: "Much pains have been
taken to solve this law-problem, and various solutions have been proposed, simply
because the legal principle involved has not been clearly thought."62 Fichte's
approach to necessity is based upon the theory of "ensuring the freedom of the individual in an organized society" (subjektsbegriindendeFreiheitdes Individuums).
According to this theory, a society is a community between free Beings as such,63
and the purpose of the law, as a tool of society, is to ensure the coexistence of free
beings.' 4 The law derives its power from society (the individuals), and its purpose
is expressed in the establishing of rules of conduct that ensure the maximum freedom of individuals. When the individual's physical existence is not ensured, i.e.,
when it is endangered, the criminal law plays no role and legal rules are of no consequence, inasmuch as the purpose of the law is expressed in ensuring the freedom
and liberty of people whose physical existence is guaranteed. When the first
stage-the physical existence of the individual-is not ensured, there is no reason
to examine the second stage, which is meant to express the guarantee of the freedom
and liberty of the individual whose physical existence is assured. In Fichte's words:
The function "of the Science of Rights is, How may many free beings, as such, exist
together? In thus inquiring after the manner of such a coexistence, the possibility
of such coexistence is evidently presupposed; and hence, when this possibility does
not exist, the inquiry after the manner of its existence is clearly inadmissible."6
Fichte's approach is largely based upon Kant. Kant' is of the opinion that, in a lifethreatening situation, there is a subjective right to act, i.e., to use force without an
objective right. Two men stranded on the high seas have a subjective right to save
their lives. This is essentially a situation in which might make right. Fichte adopts
this view, and holds that civil law does not apply to such a situation. For Fichte,
this is the realm of natural law. A situation of a life-for-a-life returns man to the
status naturalis.Fichte states:
Hence there exists no positive right to sacrifice another individual to the preservation
of my existence; but neither is it against the conception of rights, that is, it is not in
conflict with any positive right of the other to sacrifice his life to the reservation of
my own. In short, the question of right and not right does not enter here at all. Nature
61. See J.G. Fichte, The Science of Rights, trans. by A.E. Kroeger (London: Truebner, 1889) at 336ff.
62. Ibid. at 337.
63. Ibid. at 18.
64. Ibid. at 337.
65. Ibid. at 337.
66. On Kant's approach, see text belonging to infra notes 81 ff.
Ghanayim
has cancelled her permissionfor both of us to life; and the decision is a matter which
physical strength or free will may settle.67
Fichte felt that when the lives of two or more people are endangered, and only one
can be saved, a person whose life is at risk does not have a right to live. Nature,
which gave him life, has taken that right away in a case of life-endangering situation, and each person can try to save his own life at the expenses of any other.
The decision as to who will be saved is entirely arbitrary and is based upon the
concept of survival of the fittest. In such cases, the law plays no role.
Although the individual has no right to save himself, since nature has also taken
away his right to live, killing another person is not unlawful, since nature has also
denied that person a right to life. Therefore, the act of killing cannot be deemed
unlawful. At the same time, the act of killing is not lawful, since no person has a
right to save himself at another's expense. In other words, he has no right to take
another person's life. The situation of a-life-for-a-life is, therefore, in a legal vacuum. According to Fichte, when a person saves himself, nature gives him back
his life.
Fichte distinguishes between law and morality. While the case of a life for a
life does not fall within the compass of the law-it cannot be legally evaluated,
and the legal prohibition upon killing is inapplicable-he argues that the moral
injunction upon killing remains. The moral prohibition stands above the law. Fichte
implores those in mortal danger: "Do nothing at all, but leave the matter to God,
who can certainly save you, if it is his will, and to whom you must surrender your
68
life if it is his will.
By modem standards, Pufendorf and Fichte's approach' is not conceptual, and
contradicts the fundamental purpose of the law. Therefore, it cannot form part of
the criminal law. A fundamental purpose of criminal law is to enable free people
to live together by safeguarding societal interests. The societal interest protected
by a criminal norm is the nucleus of the offence, and the ratio legis for its existence.
Defining a particular phenomenon as a criminal offence means that every act that
falls within the scope of the offence and threatens the protected interest is, as a rule,
prohibited. Only in exceptional circumstances, like self-defence, is such an act permitted. Defining a particular act as a criminal offence thus sends a public message
as to the proscription of that mode of conduct. It sends a message that one must
refrain from similar acts. Life threatening conduct is generally proscribed. It is permitted only in exceptional circumstances.
67. Fichte, supra note 61 at 337.
68. Ibid. at 337.
69. A similar approach was propounded by F.Oetker, "Notwehr und Notstand" inFestgabefirFrank,
Band I (Tiibingen: Mohr, 1930) 359, 368ff; J. Nagler, "Der Begriff der Rechtswidrigkeit" in
FestgabefiirFrank, Band I (Tubingen: Mohr, 1930) 339, 340ff, according to whom conduct performed in a situation of "excusing" necessity is not prohibited (unverboten); and see M. Conde,
"Necessity Defined: A New Role In The Criminal Defense System" (1981) 29 UCLA L. Rev.
409 at 439ff, according to whom necessity is neither justification nor excuse; its apart as a kind
of criminal defence, falling somewhere between the notion of justification and excuse. This is
similar to the approach of Roman law and Cannon law, according to which necessitas non habet
legem, in other words, necessity stands outside of the law.
Excused Necessity in Western Legal Philosophy
When we describe the nature of a particular act as being lawful and non-criminal
or unlawful and criminal, i.e., justified or unjustified in criminal law, we are making
a statement about the protection of a societal interest and, therefore, about the role
of criminal law. Thus, for example, conduct performed under circumstances that
constitute self-defence or justifying necessity (where the legal system recognizes
that defence) is the conduct that society deems correct and appropriate under those
circumstances. It is conduct that furthers the purpose of the criminal law. Such an
attitude toward the conduct encourages others to act in a similar way. As opposed
to this, unjustified conduct that is excused or left unpunished constitutes prohibited
conduct that does not serve the interests of the criminal law, and even harms it.
Viewing such conduct as prohibited serves to deter the public from acting in similar
ways, by strengthening public confidence in the effectiveness of criminal norms."
Moreover, as already pointed out, it is a function of the criminal law to defend
societal values. When we view a situation of necessity, in which two values compete
(in the sense that one must be saves at the expense of the other), as a situation that
stands without the boundaries of law and its values, we allow the law to retreat and
fail to perform its function in protecting societal values. Inapplicability of the law
implies that might mean right, which conflicts with the role of the law in protecting
societal values. When a particular phenomenon is removed from the incidence of
the law, it means that the societal values that the law protects in regard to that phenomenon are no longer protected, and there are no rules of conduct.7' Pufendorf's
and Fichte's theory removes an act of taking a human life from the incidence of
the law, so that the law no longer functions to guarantee protection of human life
as a legal interest. Such a position is incorrect. As long as a person is alive, his life
is a legal protected interest. The protection of human life ends only with death.
In a situation of necessity, the law must apply. 2
Moreover, under Fichte's "return to natural law" approach, a person in mortal
danger loses his right to live, the law does not operate, and every one of his protected interests can be infringed. Consider, for example, the case of Dudley and
Stephens.73 Under the "return to natural law" approach, the young sailor Parker,
being in mortal danger, stood outside of the law. By that conception, one might
say that his killers would have been at liberty to beat and sodomize him, even
though such acts would not have been relevant to saving their lives," and this position contradicts the role of the social contract in a modem state. 5
We may, therefore, conclude that the criminal law in general, and the criminal
70. On the role and importance of the nature of the defence, i.e., distinction between justification
and excuses, see text belonging to supra notes 28-34.
71. See Rabe, supra note II at 38; Janka, supra note 10 at 90.
72. Also see Janka, ibid.
73. See supra note 46.
74. Also see A. v. Hirsch, "Review Essay/Lifeboat Law" (1985) 4 Crim. Justice Ethics 88 at 91.
Other possible and acceptable understanding of Fichte is to say that a person in mortal danger
is outside the law-protecting of his life; i.e. only his life lost the legal protection; all other legal
interests enjoy the law protection. According to this understanding, all other legal interests fall
within the social contract and enjoy his protection.
75. See also Klimchuk, supra note 23 at 342.
Ghanayim
offence in particular, are based upon a concept of completeness and comprehensiveness. Every occurrence of a criminal nature must be examined in accordance
with the principles of the criminal law. No issue that is related to or that affects
the criminal law stands outside of its rules or of legal evaluation. An act performed
under circumstances of excusing necessity cannot be in a legal vacuum or outside
the realm of legal examination. It is the view of the law that any conduct that fulfils
the actus reus and the mens rea of the definition of the offence -as in the case of
an act performed in a situation of necessity-is conduct that infringes the legally
protected societal interest. In general, such conduct is antisocial and unlawful. In
exceptional cases, the conduct is acceptable by virtue of the existence of a justifying
defence. The law addresses the nature of the offence, i.e., whether or not the act
is antisocial. There is no possibility of an act being in a legal vacuum, standing
outside of the realm of law, and neither permissible nor prohibited. The act can
be either permitted or prohibited. There is no third alternative.76
It might be possible to consider the concept of a legal vacuum in regard to an
antisocial act-one that infringes a protected societal interest-that is removed from
the criminal sphere for reasons of policy, such as the subsidiary principle of criminal
law. For example, in certain legal systems,77 defamatory statements made only in
the presence of the victim do not constitute an offence. But even such a conception
is unacceptable. Such a removal of conduct from the incidence of the criminal law
does not express an evaluation of the nature of the act. Defamation of the victim
alone is a form of antisocial conduct, but it does not incur criminal liability.
Moreover, if we were to subscribe to the legal-vacuum theory, and accept the
idea that conduct can stand outside the realm of legal incidence, then it would not
be possible to require that any person face danger. Following those conceptions,
a person in mortal danger stands outside the law with regard the legal protection
of his life. Therefore, no one can be obliged to face danger. Such an approach contradicts the proper rule that rtquires that certain people, by reason of law or contract,
like police, soldiers, and fire fighters, be under an obligation to face danger, including mortal danger (as opposed to certain death), and that they cannot shirk that
responsibility."8
Fichte's approach is wrong from the perspective of the role of criminal law. The
law is intended to make it possible for free people to live together harmoniously.
Therefore, one can speak of a return to a state of nature in which there are no rules
of conduct only when the common existence of the entire society, or the majority
76. Also see A. Baumgarten, Notstand und Notwehr (TUbingen: Mohr, 1911) 29ff; Th. Lenckner,
in Schonke/Schr6der, Strafgesetzbuch Kommentar, 26. Aufl. (MUnchen: Beck, 2001) Vorbem
sec. 32ff para. 8; Rabe, supra note 11 at 38; Perka etal. v. The Queen, 14 C.C.C. (3d) 396ff.
77. For example, sec. 6 of the Israeli Defamation Act.
78. One might say that the special obligations imposed on police, fire fighters etc. are an exception
to the legal vacuum rule, so that these persons have to face the mortal dangers and can not be/
outside the law. According to this view, a person in mortal danger is in a legal vacuum, unless
he is under special obligation to face the danger. But Fichte did not support this view. When Fichte
discusses the shipwreck case, he did not differentiate between the Capitan of the ship, who is
specially obliged to face mortal dangers arise from the sea, and other persons, like passengers.
Fichte's view is that every person in mortal danger is outside the law and there is no legal obligation imposed on him.
Excused Necessity in Western Legal Philosophy
of society, is under threat of destruction. From this perspective, one cannot speak
of a return to natural law when one or more people are in mortal danger. Such a
situation does not present a threat to the life of "society.' 79
The conclusion is that modem law does not recognize any phenomenon like a
legal vacuum, or any act that stands outside the realm of legal evaluation.
III. Kant was acquainted with the theories of Cicero, Pufendorf, Thomas
Aquinas, and others who addressed the issue. Like them, Kant considered necessity
(necessitas) in relation to the Plank case. It should be noted from the outset that
Kant's approach on necessity is the source of considerable controversy, and is the
subject of different, at times unusual, interpretations. Moreover, some have
expressed the opinion that Kant's approach on necessity diametrically contradicts
the Kantian theory of punishment." Nevertheless, it is considered to be one of the
most interesting theories in the field of legal research, and I view it as one of the
most important theories of the greatest of philosophers.
Kant discusses necessity in his book The Metaphysics of Morals, 8 in the
Appendix (Anhang) to the chapter "Introduction to the Doctrine of Right" (Einleitung in die Rechtslehre),82 in which he considers the Plank case. Kant's starting
point is the theory of the Equivocal Right (ius aequivocum, das zweideutige Recht),
which refers to the right in narrow sense (ius strictum) and the right in a wider
sense (ius latum). The distinction is as follows: "An authorization to use coercion
is connected with any right in the narrow sense (ius strictum). But people also
think of a right in a wider sense (ius latium), in which there is no law by which
an authorization to use coercion can be determined."83 In other words, the right
in the narrow sense (ius strictum) refers to a right that gives an actor an authorization to employ coercive force (Zwangsbefugnis). Kant calls this "the true right."
The actor has a right to act and inflict harm. As opposed to this, there is a right
in the broader sense (ius latum), under which the actor does not have the right
to use force. In other words, the actor exerts force (Zwang), but does not have permission to do so.
The law of necessity (ius necessitas)falls within the scope of right in the broader
sense. Kant rejects the approach that grants the mortally threatened individual a
right and legal license to save his own life at the expense of such interests of others
as property. 8' Kant took the view: "'Necessity has no law' (necessitasnon habet
legem). Yet there could be no necessity that would make what is unlawful conform
Also see Kant, supra note 14 at para. 334.
See infra note 159.
Kant, supra note 14 at para. 234-36.
According to Ktiper, supra note 4, W. Ktiper, "Es kann keine Not geben, welche, was unrecht
ist, gesetzm.ssig macht", in Festschriftfiir E.A. Wollf (Berlin: Springer, 1998) 285 at 289f. Kant's
discussion appears in the Appendix (Anhang) rather than in the Ground Principles of the Law
of Rights (Grundprinzipien der Rechtslehre) or their Introduction (Einleitung) is because, according to Kant, supra note 14 at para. 60, necessity doe not grant a right. It is an alleged right (vermeintliches Recht).
83. Kant, supra note 14 at para. 234.
84. The intention here is primarily to Grotius, who held that harm to property is justified in cases
of necessity. On Grotius's approach, see text belonging to supra note 13.
79.
80.
81.
82.
Ghanayim
with law"." Killing another person in a situation of necessity is objectively unlawful.
However, by virtue of the human survival doctrine of natural law, a person cannot
be held criminally responsible, inasmuch as "there can86 be no penal law that would
assign the death penalty to someone in a shipwreck who, in order to save his own
life, shoves another, whose life is equally in danger, off a plank on which he had
saved himself. For the punishment threatened by the law could not be greater than
loss of his own life. A penal law of this sort could not have the effect intended,
since a threat of an evil87 that is still uncertain (death by a judicial verdict) cannot
outweigh the fear of an evil that is certain (drowning). 88 89
In his lectures, Kant expands upon the reason why an actor would choose to
kill another person:
[B]ecause there can be no law that might enjoin omission of the action cum effectu;
for to punish with death a man who can save his own life no otherwise than by the
loss of the other's life, is merely to leave open to him the choice between two kinds
of death; either he chooses death in sparing the other's life, and here it is certain; or
he takes the other's life in preserving his own, and subjects himself to the rigour of
the law; he will do the latter, since perhaps he can escape the consequences by flight.
We have here a case, therefore, where a natural right cannot be applied in statu civili.'
Here, Kant also adds the argument of escape, in the sense of flight, and he might
have also added the failure of the prosecution's case for lack of evidence. While
in Metaphysics of Morals, Kant mentions only the "conflict" between immediate,
85. Kant, supra note 14 at para. 236.
86. As is pointed out by A. Wildt, "Zum Verhiiltnis von Recht und Moral bei Kant" (1997) 83 ARSP
159 at 161; Kbper, supra note 4 at 3 at n. 4, the term "can" for Kant refers to normative
"allowances" in the sense of "should".
87. Gregor, translated the term Obel as ill.
88. Kant, supra note 14 at para. 235-36. A similar approach is found in Th. Hobbes, Leviathan, ed.
by M. Oakeshott (Oxford: Blackwell, 1946) at 197: "If a man, by the terror of present death,
be compelled to do a fact against the law, he is totally excused; because no law can oblige a man
to abandon his own preservation. And supposing such a law were obligatory; yet a man would
reason thus, IfI do it not, I die presently; if I do it, I die afterwards;therefore by doing It, there
is time of life gained; nature therefore compels him to the fact."; also see 0. W. Holmes, The
Common Law (1881), ed. by M.D. Howe (Cambridge, MA: Harvard University Press, 1963)
40, according to whom "[T]he law cannot prevent it by punishment, because a threat of death
at some future time can never be a sufficiently powerful motive to make a man choose death
now in order to avoid the threat."
89. It is interesting to note Kant's approach to self-defence. Kant recognizes self-defence as an objective right that grants the victim the right to employ force. Kant rejects the view that the legislature
can limit the scope of self-defence in cases of defence of life. Kant states in his lectures, Kant's
Gesammelte Schriften, XXVII.2.2, p. 1374 (Naturrecht,Feyerabend) "If my life is possibly but
not certainly endangered, the state cannot enact a moderating law [a law that forbids me to protect
my life] because 1)the most severe punishment that the state can impose is not greater than the
present evil. The law cannot prevent me from protecting my life. Such a law would be absurd.
2) Such a law would be unjust because if the state cannot protect me then it cannot issue commands." In other words, according to Kant, self-defence is an objective right, and the legislature
cannot restrict its scope, and if it purports to do so, the limitation is unjust. Moreover, such a
prohibition lacks deterrent force.
90. Immanuel Kant, Lectures on Ethics, ed. by P. Heath & J.B. Schneewind, trans. by P. Heath
(Cambridge: Cambridge University Press, 1997) Part IV. Kant on the metaphysics of morals:
Vigilantus's lecture notes, para. 599-600; and see Kant's Gesammelte Schriften, XXVII.2.2, p.
1353 (Naturrecht, Feyerabend).
Excused Necessity in Western Legal Philosophy
certain death and possible death in the future, in this treatise he also raises the consideration that the actor might succeed in escaping. Moreover, in this work Kant
expressly states that the prohibition upon killing in a life-threatening situation lacks
cum effectue.9 1In his article "On The Common Saying: "This may be true in theory,
but it doesn't apply in practice," Kant argues, "the authorities cannot combine a
penalty with this prohibition, since this penalty would have to be death. But it would
be a nonsensical law which threatened anyone with death if he did not voluntarily
92 '
deliver himself up to death when in dangerous circumstances.
It is Kant's view that necessity does not afford the individual an objective right
and license to take another life. Necessity may not be governed by law, but it cannot
transform an unlawful act into a lawful one. Therefore, taking the life of another
person remains unlawful. However, we cannot demand that a person refrain from
saving himself, as that would spell certain death. Therefore, we cannot impute criminal liability (punishment) to the actor. The reason for this is the ineffectiveness
of the norm. The norm (the criminal prohibition of causing death) has no deterrent
effect when a person is faced with certain death. It should be emphasized that the
resultant killing constitutes a culpable criminal act, but it is not punishable: "the
deed of saving one's life by violence [the violent act of self-preservation] is not
to be inculpable (inculpabile)but only not punishable (impunibile)."93
The question, then, is what is the nature of necessity as a criminal defence? What
is the underlying substantive principle, and how can we reconcile necessity with
Kant's jurisprudence, and his retributive theory of punishment?
In the above statement about the double significance of a right,9' Kant posits
the situation of the use of force with the attendant objective right, as opposed to
a situation of use of force absent the objective right. This is, in fact, the sentence
that juxtaposes self-defence-which Kant views as a "sacred right" of man95- with
necessity. The distinction between self-defence and necessity derives from Kant's
Doctrine of Right. According to Kant, a right is "the sum of the conditions under
which the choice of one can be united with the choice of another in accordance
with a universal law of freedom."96
Kant employs the word "choice" to refer to voluntary action, to which there are
two relevant elements: the capacity and the action. According to Kant: "The faculty
of desire in accordance with concepts, insofar as the ground determining it to action
lies within itself and not in its object, is called a faculty to do or to refrain from
doing as one pleases. Insofar as it is joined with one's consciousness of the ability
to bring about its object by one's action it is called choice."97 In other words, when
91. On the meaning and effect of this term, see text belonging to notes infra 161-64.
92. Kant's Political Writings, ed. by H. Reiss and trans. by H.H. Nisbet (Cambridge: Cambridge
University Press, 1970), On the common saying: 'This may be true in theory, but it does not apply
in practice' at 61, 81-82.
93. Kant, supra note 14 at para. 236. 'Unpunishable' means that the perpetrator has a defence negating
the punishment; the law grant an acquittal and there is no legal sanctions; i.e., there is no criminal
record.
94. See supra note 83 and adjacent text.
95. Reflexion Nr. 7195, quoted in Kfiper, supra note 82 at 289 at n. 13.
96. Kant, supra note 14 at para. 230.
97. Ibid. at para. 213.
Ghanayim
the action is the product of choice, in the sense that the actor is responsible for his
actions or omissions. 98
Human rights thus underlie legal rules. Law is objective, by nature, and requires
that every individual respect and maintain it. The law reflects society's rules of conduct, as formulated by society. The law is the Magna Charta that ensures the freedom of the individual, and prevents arbitrary infringement of his liberty. The law
recognizes the principle of freedom of action. Every action is permitted, and no
action is punished, unless otherwise expressly stated. An action that is consonant
with society's rules, and that does not contradict commonly held rules of the individuals, is lawful, while an action that contradicts one of society's rules is unlawful.
The purpose of the law is to secure human freedoms-to prevent the hindering of
freedom. It is intended to prevent a return to the natural state in which "individual
human beings ... can never be secure against violence from one another, since each
has its own right to do what seems right and good to it ... [and] each follows its
own judgment."" Such a state is accompanied by a lack of basic security, and is
a "state devoid of justice (status inustitiavacuus)."''
In a natural state, man is in an intolerable situation, as it is difficult if not impossible to resolve conflicts and problems without an authorized, binding judge. Thus,
civil law is the Magna Charta of human freedoms.' Every individual must respect
the sphere (autonomy and freedoms) of every other. A person is permitted to do
whatever is consistent with the law. The law decides what is permitted and what
is prohibited. In other words, the law decides what actions a person may perform.
"Any action is right if it can coexist with everyone's freedom in accordance with
a universal law, or if on its maxim the freedom of choice of each can coexist with
everyone's freedom in accordance with a universal law."'' 0 2 From here we derive
the categorical imperative to "act externally that the free use of your choice can
coexist with the freedom of everyone in accordance with a universal law."' 3
Anyone who does not follow the imperative, and prevents others from realizing
their freedom, acts unlawfully. As Kant states: "If then my action or my condition
98. Also see M. Pawlik, "Die Notwehr nach Kant und Hegel" (2002) 114 ZStW 259, 274 ff. Kant
does not address the situation in which the assailant is not criminally responsible, for example,
where he acts without any mental element, is not culpable, or even where there is no conduct,
as where a foetus endangers a woman's life, or the case of Siamese twins. It might be argued that
Kant can accept, or at least does not reject the position that the actor has a right to defend himself
in a situation of necessity. On a discussion of this issue in modem Anglo-American law, see J.
Horder, "Self-Defence, Necessity and Duress: Understanding the Relationship" (1998) 11 Can.
J. L. & Jur. 143 at 146; J.C. Smith, JustificationandExcuse in the CriminalLaw (London: Stevens
1989) at 78f; I. Kugler, "Necessity as a Justification in Re A (Children)" (2004) 68 J. Crim. L.
440 at 443; Kremnitzer & Ghanayim, supra note 31, 875ff; Re A, (2000) 4 All E.R. 961.
99. Kant, supra note 14 at para. 312.
100. Ibid.
101. Also see Immanuel Kant, supra note 90 at para. 515, according to whom: "If we take men in
statu naturali, they are ex leges, under no legal order, and have no laws, only external power
to keep them upright. Each exercises his own choice, without acknowledging any general freedom." And see E. Ellis, "Provisional Right in Kant's Rechtslehre" in Kant und die Berliner
Aufldrung. Akten des IX. InternationalenKant-Kongress(Hrsg. von v. Gerhardt, R-P Horstmann,
R. Schumacher, Berlin: de Gruyter, 2001), Band 4, 100, 101.
102. Kant, supra note 14 at para. 230.
103. Ibid. at para. 231.
Excused Necessity in Western Legal Philosophy
generally can coexist with the freedom of everyone in accordance with a universal
law, whoever hinders me in it does me wrong; for this hindrance (resistance) cannot
coexist with freedom in accordance with a universal law."'" When faced with
unlawful conduct, the victim has a right to self-defence. This right to self-defence
is connected with an authorization to use coercion. The actor has the right to force
the assailant to retreat, i.e., he has the right to deflect the assault. "If a certain use
of freedom is itself a hindrance to freedom in accordance with universal laws (i.e.,
wrong), coercion that is opposed to this (as a hindering of a hindrance to freedom)
is consistent with freedom in accordance with universal laws, that is, it is right."'' 5
Kant terms this to be an objective right. It falls within the scope of a right in the
narrow sense, which is accompanied by an authorization to use coercion. This, in
essence, is Kant's opening statement that "an authorization to use coercion is connected with any right in narrow sense (ius strictum).'' 6
However, in a situation of necessity, the other person does not commit an unlawful act. He is not a wrongful assailant. Therefore, the actor does not have a right
to coerce the other person to return to his own sphere, i.e., to retreat. Kant fiercely
attacks those scholars who grant a person the right to save his own interests at the
expense of the interests of a third party. He states that "this alleged right is supposed
to be an authorization."' I7 In other words, this is but a claim to an alleged right, but
such a right does not exist. Moreover, according to Kant, justification of the
act-i.e., granting the actor a right-would constitute an irreconcilable internal
contradiction of the legal system. As stated by Kant: "It is evident that were there
such a right the doctrine of right would have to be in contradiction with itself. For
the issue here is not that of a wrongful assailant upon my life whom I forestall by
'0
depriving him of his life (ius inculpatae tatelae)."'
104. Ibid. at para. 230-31.
105. Ibid. at para. 231.
106. Supra note 83.
107. Kant, supra note 14 at para. 235.
108. Kant, supra note 14 at para. 235. In his lectures on ethics, supra note 90 at para. 516, Kant distinguishes between the situation in which one person is already holding on to the plank and has
saved himself, and the situation in which two people are approaching the plank. He states the
opinion that "the existence of a permissive law, in the case where preservation of life for two
people would depend on the possession of a thing. Can the other deprive a man who is already
in possession of the thing, to ensure his own survival at the price of the other's life? By right
of nature this is never so, precisely because the one to be despoiled already has possession, and
this thereby protecting his life; the other's need can never give a coercive right, insofar as the
ground of the action did not already rest beforehand on the legally valid right to coerce; for otherwise the other would already have had to possess the coercive right, and this is impossible.
But the case is altered, if neither of the two was yet in possession of the thing, and both were
endeavouring to seize possession of that whereby the life of one of them can be saved. In that
case, no right subsists between them, whereby one could be coerced by the other, nor is there
any means of preserving the natural urge to use force; if no concession is made, both lose their
lives, whereas by the universal law the life of at least one of them should have been preserved;
it is impossible, though, for either one to decide on employing the means to act in accordance
with the principle; so force must be permitted, in order thereby to institute a right to preserve
life. Here, too, therefore, the underlying maxim is that to institute a right, might precedes right,
in accordance with a permissive law." Only the first case, in which a person already has possession
of the plank, appears in Kant's writings: In The Metaphysics of Morals and in "On the common
saying: 'This may be true in theory ... ',". as is pointed out by Kiiper, supra note 4 at 36-43. Kant
abandoned the distinction between the two situations, and argued that in both cases the actor
has no right to save himself at the expense of the other. This conclusion derives from the
Ghanayim
The use of the words "it is evident," clearly shows that Kant does not recognize
any objective fight in a situation of necessity."l 9 In On Common Saying: "This may
be true in theory, but does not apply in practice," Kant argues: "Nor can a right
of necessity (ius in cast necessitates) be invoked here as a means of removing the
barriers which restrict the power of the people; for it is monstrous to suppose that
we can have a fight to do wrong in the direst (physical) distress.""' The word "monstrous" reveals Kant's contempt for the view that there is an objective right with
an authorization of the use of coercion.
Kant continues to attack the approach of those scholars who would grant the
actor an objective right-a right with an authorization to use coercion-saying:
"It is clear that this assertion is not to be understood objectively, in terms of what
a law prescribes, but only subjectively, as the sentence [or decision] that would be
given by a court.'"" Here, Kant distinguishes between objective fight and subjective
right. According to Kant, objective fight is what the law prescribes. In other words,
the actor has an objective right to use force only when the law grants that right.
That right exists against a wrongful assailant, i.e., in the case of self-defence." 2
As opposed to this, when a person saves himself at the expense of someone who
is not a wrongful assailant, the actor has no objective right. He enjoys only a subjective right granted by the court. The release from criminal responsibility in the
Plank case does not result from the existence of an objective right, but from the
situation being subjectively not punishable. It results from a subjective right.' Kant
further criticizes those who grant an objective right, saying: "[T]he jurists take this
subjective not punishable, by a strange confusion, to be objective not punishable."' 4
An objective right does not exist because it would mean "violence being permitted
against someone who has used no violence against me.""'
Kant rejects the view that self-preservation constitutes a reason to grant a right
to save one's life. He argues that "the preservation of life is not the highest duty;
one often has to give up life, merely in order to have lived in an honourable way.
There are many cases, and although the jurists say that preservation of life the highest duty, and that in casu necessitates we are bound to defend our life, this is not
the matter of jurisprudence at all; the latter has only to decide the rights and wrongs
distinction between self-defence, which grants a right to employ coercive force by right, and
necessity, which does not grant such a right.
109. Also see Kuper, supra note 4 at 4.
110. Kant's PoliticalWritings, supra note 92, "On the common saying: 'This may be true in theory,
but it does not apply in practice' at 81.
111. Kant, supra note 14 at para. 235.
112. On Kant's approach to self-defence, see J. Hruschka, "Die Notwehr im Zusammenhang von Kants
Rechtslehre" (2003) 115 ZStW 201; Pawlik, supra note 98 at 266; J.C. Joerden,
"Wahlfachklausur- Rechtsphilosophie: Das Notrecht" (1997) JuS 726; K. Kohl, "Die Gebotene
Verteidigung gegen provozierte Angriffe. Uberlegungen aus Anlass der neuesten Rechtsprechung
des Bundesgerichtshofes zur Notwehrprovokation" in FestschriftfiirBemmann (Baden-Baden:
Nomos, 1997) 193, 195; Kremnitzer & Ghanayim, supra note 31 at 891.
113. For a different approach, according to which necessity, according to Kant, does not grant a subjective right of release from criminal responsibility by the court, see A.D. Rosen, Kant's Theory
of Justice (Ithaca, NY: Cornell University Press, 1993) at 104ff.
114. Kant, supra note 14 at para. 236.
115. Ibid. at para. 235.
Excused Necessity in Western Legal Philosophy
of the duties that we owe to others, not those that we owe to ourselves."' 6 The duty
to preserve life is an ethical duty. Therefore, Professor Finkelstein's criticism of
Kant's approach would appear to be incorrect. Finkelstein argues that "presumably
a person of goodwill could conform to a penal law with moral content, even if this
'' 7
required him to act in the face of compelling consideration of self-interest."
Finkelstein's criticism of Kant's approach, and the claim that Kant's approach is
problematic, is therefore mistaken.
Although, the critique of Professor Finkelstein might be raised from the perspective of modem law,"' from the principled, doctrinal analysis of the defence
of excusing necessity, but not from Kant's conclusion. In modern law, excusing
necessity is a defence that is based upon substantive grounds (fundamental principles of law), as well as upon considerations of legal policy. The substantive
grounds back of excusing necessity-the mitigation of the anti-social nature of the
act, and the two-fold, substantial lessening of the actor's culpability-cannot establish excusing necessity as a defence. The addition of legal policy considerations
and considerations of justice support the possibility of treating excusing necessity
as a defence in criminal law."9 Clearly, Kant-like any philosopher- presents a
general theory and arguments, but does not address all of the issues and sub-issues
that relate to that theory. 2 Moreover, Kant distinguishes between a person's legal
obligations and his ability to meet2 them, as opposed to the ethical obligations that
guide a person's will and belief.' '
According to Kant, the release from criminal liability for unlawful killing is:
the deed of violence for self preservation, which is not punishable; because "there
can be no penal law... "22 In other words, it is not the deed of violence for selfpreservation that grounds a right to a release from criminal liability, but the ineffectiveness of the norm. The legal norm cannot be enforced upon a person who
is in mortal danger. Therefore, the norm has no deterrent value. There is a psychological dimension at play here. The norm lacks the power of psychological deterrence over a person in mortal danger.'23 The law is not viewed here as a categorical
imperative, in the sense of imposing punishment upon an actor who commits an
offence, but as a law that threatens potential transgressors with punishment.' 24 The
116. Immanuel Kant, Lectures on Ethics, Par 11.Moral philosophy: Collins's lectures notes, supra
note 90 at para. 377ff; and see Kant's Gesammelte Schriften, XXVII.2.2, at 1509 (Moral,
Mrongovius); and see L.A. Mulholland, Kant's System of Rights (New York: Columbia University
Press, 1990) at 210ff.
117. Finkelstein, supra note 51 at 281 at n. 9.
118. See also R. v. Howe, 1987 A.C. 417,432.
119. See M. Kremnitzer & K. Ghanayim, "New Humanistic Trends in Israeli Criminal Law" in
FestschriftfiirEser (Mtinchen: Beck, 2005) 513, 522-523; Ghanayim, supra note 1.
120. Also see Klimchuk, supra note 23 at 350.
121. See Weinrib, supra note 24 at 637.
122. Supra note 88.
123. See Kuper, supra note 4 at 14; Hruschka, supra note 4 at 348; Mulholland, supra note 116 at
194; Rosen, supra note 113 at 90ff.
124. See Kuper, supra note 4 at 16. Kohler, supra note 12 at 435; L. v. Bar, Gesetz und Schuld im
Strafrecht, Band III (Berlin: Keip, 1909) 235; E. v. Chmielewski, Grundder Straflosigkeitder
Notstandshandlung (Breslau: Breslau Universitit Dissertation, 1911) 13 view Kant's approach
to necessity as the basis for Feuerbach's psychological coercion theory (psychologische
Zwangstheorie)of punishment.
Ghanayim
law is impotent in the Plank case. For Kant, criminal punishment becomes a means
for deterrence.'25 In other words, the exemption from criminal liability does not
derive from the actor's mental state, but from the ineffectiveness of the norm.
Although Kant treats only of the case of a life for a life in the Plank case, his
approach that law does not govern necessity, and that no necessity can make an
unlawful act lawful, allows us to infer a general approach that rejects necessity.
According to Kant, there is no (objective) right of necessity.'26
A person is under no legal obligation of social solidarity. One is not required
to allow an infringement of one's fundamental rights.'27 The obligation to help one's
fellow is a moral obligation that cannot be enforced by law.' 8 Kant says that if a
person "lets his maxim of being unwilling to assist others when they are in need
become public, that is, makes this a universal permissive law, then everyone would
likewise deny him assistance when he himself is in need, or at least would be authorized to deny it."' 2' According to Kant, the law is not intended to enforce morals,
nor change human nature. Legal rules (societal rules) are objective by nature, and
are not contingent upon the will of the individual. The law does not retreat before
criminal behaviour, and every action by individuals is examined-and must be
examined-in accordance with the rules of law. No conduct can breach the rules
prescribed by law and stand outside of the compass of legal review. Therefore,
Bockelmann's '3° understanding of Kant, according to which the case of a life for
a life stands outside the realm of the law and legal review, is incorrect and contradicts Kant's basic view.
125. See W. Schild, "Anmerkungen zur Straf- und Verbrechensphilosophie Immanuel Kant" in
Festschriftfiir Gitter (Wiesbaden: Chmielorz, 1995) 831 at 834ff.
126. Also see K. Kiihl, "Freiheit und Solidaritat bei den Notrechten" in Festschriftfir H-J. Hirsch
(Berlin: de Gruyter, 1999) 259 at 265.
127. It has been noted that Kant changes the normally accepted term for self-defence, inculpataetatelae moderatio to ius inculpataetatelae, i.e., he drops the word moderatio, which means "moderation." Some interpret this to mean that Kant rejects proportionality in self-defence. In other
words, a person has a right to self-defence even when the harm inflicted is disproportional. From
this it would appear that the idea of social solidarity as a principle requiring proportionality does
not form part of Kant's jurisprudence. See Kant, supra note 14 at para. 453; also see Jorden,
supra note 112 at 726f; KUh, supra note 112 at 195; Hruschka, supra note 112 at 221f; M.
Pawlik, Der rechtfertigendeNotstand (Berlin: de Gruyter, 2002) 19f; Pawlik, supra note 98 at
275; D. Hbssl, "Recht und Zwangsbefugnis bei Kant" in Kant und die BerlinerAufkldrung. Akten
des IX. InternationalenKant-Kongress (Hrsg. von v. Gerhardt, R-P Horstmann, R. Schumacher,
Berlin: de Gruyter, 2001) Band 4, 161 ff; Sh. Byrd, "Kant's Theory of Punishment: Deterrence
in its Threats, Retribution in its Execution" (1989) 8 L. & Phil. 151 at 188; G. Fletcher,
"Punishment and Self-defense" (1989) 8 L. & Phil. 201 at 210f; according to Kant, the obligation
to help others expresses a rational principle based upon the theory of wisdom. According to Kant,
a person decides and acts rationally, and wisdom requires that we help one another. Kant proceeds
from the assumption that a rational person voluntarily helps his fellow. Isaiah Berlin was correct
in noting, in his Four Essays on Liberty (London: Oxford University Press, 1969) at 153, that
"this is a counsel of perfection".
128. See Ktiper, supra note 4 at 12f; R.G. Wright, "Treating Persons as Ends in themselves: The Legal
Implications of a Kantian Principle" (2002) 36 U. Rich. L. Rev. 271 at 307ff; E.J. Weinrib,
"Poverty and Property in Kant's System" (2003) 78 Notre Dame L. Rev. 795 at 799; Mulholland,
supra note 116 at 188ff.
129. Kant, supra note 14 at para. 453.
130. P. Bockelmann. Hegels Notstandslehre (Berlin: de Gruyter, 1935) 8ff; see also S. Uniacke, "The
Limits of Criminality: Kant on the Plank" in Henry Tam, ed., Punishment, Excuse and Moral
Development (Aldershot, UK: Avesbury, 1996) at 113, 114, 116, 120.
Excused Necessity in Western Legal Philosophy
One can but express surprise at such a conclusion, inasmuch as Kant expressly
states that killing another person in a situation of a life for a life is unlawful (objective unlawful), and that necessity cannot make an unlawful act lawful, despite the
principle that necessity is not governed by the law. 3 According to Kant, causing
the death of another person in a situation of necessity is a breach of law, and fulfils
all of the elements of the offence. The killing is unlawful since necessity does not
grant an objective right to take the other's life, and necessity is not a justifying
defence. This conclusion derives from the categorical imperative, which prohibits
taking the life of an innocent person. '32
The question is does the absence of subjective punishment mean, or can it be
interpreted to be an excuse? In other words, according to Kant, does necessity in
the life-for-a-life situation of the plank constitute an excusing defence?
At first glance, it would seem that this interpretation can be rejected. One might
say that in Kant's time the law did not distinguish between justifying and excusing
defences. Moreover, Kant expressly states that killing is a culpable criminal offence
33
(striiflich,culpabile). Since an excusing defence denies the element of culpability,'
the element of culpability is not present when there is an excusing defence. In other
words, if it is agreed that the element of culpability is present, and that an excusing
defence negates culpability, then it follows that there is no excusing defence. It follows that when causing death is a culpable unlawful act (as Kant holds)-i.e., an
act that fulfils the elements that constitute the definition of the offence, it is unlawful,
the element of culpability is present, and the conditions of necessity are also present-necessity cannot be viewed as an excusing defence. Moreover, Kant clearly
states that all of the elements of the offence are met, and the decision not to impute
criminal liability to the actor does not derive from the absence of a substantive element of the definition of the offence but from the fact that the legal norm cannot
be enforced. The norm lacks deterrent effect. The reason for not imposing criminal
liability upon the actor is not at all related to the substantive elements of the criminal
offence. 34
'
As opposed to this, it can be argued that the concept of culpability was not as
clearly developed in Kant's time as it is today. At most, one could claim that
131.Kant, supra note 14 at para. 235ff. Therefore, the claim of Stammler, supra note 11 at 37, that
the term "inculpabile" means "not wrongful" is incorrect. The causing of death in the Plank case
is wrongful.
132. See also Fletcher, supra note 18 at 819.
133. Finkelstein, supra note 51 at 281 confuses justification, excuse and culpability. She writes: "Kant
implicitly draws a distinction between the culpability of a deed and its punishability. This distinction is variously expressed as that between conduct rules and decision rules, or more familiarly,
between justification and excuse. What someone does by right, or according to rules of conduct,
he is justified in doing. A person who is excused, by contrast, has no such claim. He is merely
shown mercy, but the act is still prohibited, and he is still guilty." This approach confuses several
ideas, and makes imprecise use of the concepts. Finkelstein is correct in stating that the distinction
between justification and excuse is a distinction between conduct rule and decision rule. However,
the culpability refers to the actor, not to the action. A defence of non-culpability is a decision
rule. Under Anglo-American law, an excuse is a defence that negates the actor's culpability.
134. See also Bockelmann, supra note 130, 5; G. Jakobs, Strafrecht Allgemeiner Teil, 2. Aufl. (Berlin:
de Gruyter, 1993) 409 at n. 2; H. v. Femeck, Die Rechtswidrigkeit, Band 2/1 (Jena: Fischer, 1905)
43; Klimchuk, supra note 23 at 339.
Ghanayim
culpability was psychological, that is, it was expressed by the mental element and
capacity for legal responsibility.'35 In other words, the idea that a subjective excuse
could constitute a situation that negates culpability was not yet developed.
According to this line of argument, the fact that Kant expressly says that the element
of culpability is present does not negate the view of modern law that an absence
of subjective punishment denotes excuse. Professor Hruschka finds support for this
view in a lecture of Kant's student Friedrich Gentz made in response to Kant's essay
"On the Common Saying," (1793), in which Gentz distinguishes between justifications and excuses. Gentz says: "The decision to push an enemy with whom one
occupies a narrow plank after shipwreck into the sea rather than to surely drown,
is indeed never justified, but probably will be excused (since in extreme danger
36
one would have to be heroic to respond to the call of duty).'1
Gentz employs the terms "forgives" (nachsieht),and "pardonable" (verzeihlich),
"excuse" (Entschuldigung) in expressing release from criminal liability. Hruschka
is of the opinion that, for Kant, release from criminal liability is an excuse in modem
legal terms. Moreover, Hruschka notes that the concept of excuse was well known
in the 18th century,' 37 Kant was acquainted with it, used it in his lectures
(excusatio),38 and even employed the term "forgiveness," in saying that the actor
is granted forgiveness.'39 As for the statement that the act is culpable, Hruschka
suggests that the term inculpabile be understood to mean "unlawfully."" In other
words, Kant does not say that the act is culpable. Moreover, according to Kant,
self-defence is ius inculpataetutelage, and is directed against a wrongful assailant.
Thus, it would appear that Kant employs the term inculpatae to mean wrongful,
i.e., unlawful, and not inculpable. 4 '
The problem with this interpretation is that Kant specifically states that "the deed
of saving one's life by violence [the deed for self-preservation] is not to be inculpable (inculpabile)but only not punishable (impunibile), and by a strange confusion
jurists take this subjective not punishable to be objective not punishable."'42 Kant
135. On psychological culpability, see Ghanayim, supra note 1.
136. E Genz, "Nachtrag zu dem Rasonnement des Herm Professor Kant tiber das Verhiltniss zwischen Theorie und Praxis" in Dieter Henrich (Hrsg.), Kant- Genz-Rehberg: Ober Theorie und
Praxis (1793), (Frankfurt a/M 1967) 89ff, 106f. The translation is from Hruschka, supra note
4 at 338.
137. Hruschka, supra note 4 at 341. Therefore, the claim of Bockelmann, supra note 130 at 5; G.P.
Fletcher, "The Psychotic Aggressor-A Generation Later" (1993) 27 1sr. L. Rev. 229 at 231,
that the distinction between justification and excuse was not accepted in Kant's time would appear
to be incorrect. As stated above, text belonging to note 17, philosophers distinguished between
justifying defences and excusing defences, and between defences that negate punishment as
opposed to situations that remove the act from the criminal sphere.
138. See Immanuel Kant, Lectures on Ethics, Part 11.Moral Philosophy, supra note 90 at para. 295;
Kant's Gesannelte Schriften, XXVII.2.2, p. 1509 (Moral, Mrongovius); P. Menzer, Eine
Vorlesung Kants iiber Ethik (Berlin: Pan, 1924) 81, and Kant's Gesanmelte Schriften, XXVII.2. 1,
p. 570 (Metaphysik der Sitten, trans. by Vigilantius). Kant employs the term "Entschuldigung",
which means "Excuse"; in the translation by Vigilantius, supra note 90 at para. 570 the term
"Entschuldigung" was imprecisely translated as "exculpation."
139. Hruschka, supra note 4 at 342ff, and Joerden, supra note 112 at 727; and see W. KUper,
"Ttitungsverbot und Lebensnotstand" (1981) JuS 785 at 786.
140. Hruschka, supra note 4 at 346ff, and Joerden, supra note 112 at 727.
141. See Joerden, supra note 112 at 727.
142. Kant, supra note 14 at para. 236.
Excused Necessity in Western Legal Philosophy
clearly distinguishes between lawful and culpable. Moreover, according to Kant
an act of self-defence is an act that is objective lawful. It is a right that allows the
use of coercive force (right in the narrow sense). It should be noted that Hruschka,
the leading scholar on the subject of the interpretation of Kant's writings on necessity, recently changed his view. While in his early writings, Hruschka argued that
the Kant's distinction between "inculpable (inculpabile)" and "not punishable
(impunibile)" was, in modem legal parlance, a distinction between justification and
excuse, of late Hruschka has retreated from that position. In an article from 1998
he suggests that, in modem terms, Kant's distinction is between "justification and
'
quasi-excuse." 43
In an article from 2000, he argues that there is a technical flaw
in a law that cannot oblige a person to obey it, and therefore the penal norm has
no deterrent force. In other words, Kant's solution is essentially technical, and the
result is that the norm has no deterrent force, and therefore, the actor is not
punished.'" More recently, Hruschka has abandoned that argument in favour of
the view that the release from criminal liability derives from the ineffectiveness
of the norm, in the sense that it lacks deterrent force.'45
Another argument in favour of viewing Kant's approach to necessity as one of
excuse can be found in his use of the term "subjective not punishable." Kant bases
the discharge from criminal responsibility on "subjective not punishable," as an
expression of personal forgiveness of the actor. Moreover, Kant views the situation
as a request put before the judge. He says that the assertional right is only to be
understood subjectively, as the sentence that would be given by a court. According
to Gentz: "However, that which mankind forgives can never be a rule in a system
of law."' 46 In other words, the discharge of the actor from criminal responsibility
is not a conduct rule that guides a person's conduct, but a decision rule, which modem law views as an excusing defence.' 4
As opposed to this interpretation, one might point out that Kant says that the
reason for the exemption from criminal responsibility is that "there can be no penal
law...".I" The prohibition upon killing has no deterrent force. The norm is ineffective. The result is subjective not punishable. Kant points out that the exemption
from criminal liability derives from the fact that the law lacks the technical ability
"cum effectu" to enforce itself. The exemption is not related to any evaluation of
the act or of the actor. The prohibition simply lacks deterrent force.49 As Kbiper
states, the release from criminal responsibility does not derive from consideration
for the actor's psychological state as a result of the mortal threat, and the term
143. Hruschka, supra note 16 at 174 at n. 62; Hruschka, supra note 17 at 193.
144. Hruschka, supra note 17 at 193ff.
145. Hruschka, supra note 112 at 218. Here he joins the view that the actor fulfils all of the elements
of the offence, but criminal responsibility is not imputed to the actor because of lack of deterrence;
the approach in note 165.
146. Gentz, supra note 136 at 106.
147. See also J.Hruschka, supra note 34 at 449ff. Fletcher, supra note 124 at 231; On the distinction
between conduct rules and decision rules, see P. Robinson, "Rules of Conduct and Principles
of Adjudication" (1990) 57 U. Chi. L. Rev. 729.
148. See supra note 88.
149. See Kiper, supra note 4 at 48f; Ferneck, supra note 134 at 43; Mulholland, supra note 116 at
194; Klimchuk, supra note 23 at 340.
Ghanayim
subjectively not punishable does not relate to the actor's psychological state, but
is a term that stands in contrast to objectively lawful. The term objectively lawful
refers to what a law prescribes, which is rational or natural law, and stands in contrast to subjectively not punishable by the court, which is also a positive right. In
other words, the court will release the actor from criminal responsibility because
of the ineffectiveness of the norm.'50
In summary, Kant's view is that in life-and-death situations, under conditions
of necessity the taking of another person's life constitutes an act that fulfils all of
the elements of the offence. However, the actor cannot be held criminally responsible because the certain death that awaits him in the case of inaction is not worse
than the threat of uncertain death in the case of taking the other's life. Although
Kant treats only of the case of a life for a life, his theory, or the spirit of his theory,
allows us to argue that necessity as a defence that negates criminal punishment is
appropriate when the threatened harm to the actor in the case of injuring legally
protected interests does not outweigh the harm that awaits him if he refrains from
harming those interests, as would be he case, for example, in a situation of life ver5
sus other protected values, like physical integrity, health, liberty, or property. '
According to Kant legal rules are objective and coercive. Punishment results
from the perpetration of an offence. In a case of a life for a life, the actor fulfils
all of the elements of the offence, and therefore, in accordance with the Kantian
theory of punishment, he must be held criminally responsible and punished.
The Kantian Theory of Punishment:' 2 It is no secret that Kant takes a retributive
view of punishment, and his theory of punishment is based primarily upon retribution (ius talionis). Criminal punishment is retribution for committing an offence.
It is the natural result of a crime. The Kantian theory of punishment treats of the
question of whether criminal responsibility (punishment) can be assigned to the
actor, i.e., is criminal responsibility justified, necessary, or even possible.
150. See KUper, supra note 4 at 49f; H. v. Femeck, Die Rechtsvidrigkeit, Band I (Jena: Fischer, 1903)
312, and supra note 134 at 43.
151. Janka, supra note 10 at 87f; Rabe, supra note II at 25; Meissner, supra note II at 85; Ripstein,
supra note 23 at 426; Uniacke, supra note 130 at 114. It must be noted that according to Kant
(and following the German system) the balance between the interests is one of quality, not quantity, i.e., it is the balance between life versus life. According to Kant, the balance between the
life of one person against the life of 100 persons is the same as the balance between the life of
one person against the life of other person. Another note is that Kant deal only with life-endangering situation, and not with dangerous situation to other legal interest, as limb and liberty; in
a case of limb or liberty versus life, i.e., where a person save his own limb or liberty by killing
innocent person, Kant will say that the law (the legal norm on murder or manslaughter) has a
deter force; because the punishment threatened by the law (death) is greater than evil (danger
of limb or liberty). It must be also noted that according to Kant, every legal norm has the normal
(reasonable) deterrence in all cases (except in situation where the deterrence is zero, like in lifeendangering situation); according to Kant, there is no 20% or 50% of legal norm deterrence.
The deter effect of the norm by Kant deal with the law as abstract, i.e., the norm as a prohibition,
and not with the deter effect of the norm in concrete situation. Criticism on Kant, see Uniacke,
ibid. at 117-18. It must be also noted that this conclusion does not stay in conform to the consideration of escape which noted by Kant, supra note 90. It seems that the consideration of escape
can not play any rule in punishment; that is, I think the reason, why Kant did not mention the
consideration of escape in his book The Metaphysics of Morals.
152. On Kant's theory of punishment, see Kant, supra note 14 at para. 331ff.
Excused Necessity in Western Legal Philosophy
According to retributive theory (ius talionis),criminal responsibility must be
imputed to a person who commits an offence. Because the actor in the Plank case
fulfils all of the elements of the offence, including that of culpability, it may be
said that retributive theory requires that the actor be deemed criminally liable. The
justification for imposing criminal punishment is the commission of an offence:
"[P]unishment by a court (poenaforensis) ... be inflicted upon criminal only
because he has committed a crime."' 53 The argument that in our situation there is
no point to punishment, since any reasonable person would have acted in the same
manner as the actor, i.e., the argument that imposing punishment upon the actor
will not yield general deterrence (positive and negative prevention), nor can it deter
the actor, is unacceptable inasmuch as Kant expressly rejects such utilitarian arguments because: "Punishment by a court ... can never be inflicted merely as a means
to promote some other good for the criminal himself or for civil society .... He
must previously have been found punishable before any thought can be given to
drawing from his punishment something of use for himself or his fellow citizens.
The lav of punishment is a categorical imperative."'54 . "Hence its justice does not
follow, if it is inflicted to improve the criminal, or as an example to others. This
would simply have to do with its usefulness, and then it would be merely a means
to that intent, for example, if somebody is flogged, whether guilty or not, in order
to frighten people by his outcry, and create an impression"' 5
The law views the person as an end rather than as a means. Since utilitarianism
in the foregoing sense treats man as a means, the approach is unacceptable. The
categorical imperative is, therefore: "Always act so that you treat humanity, whether
in your own person or in another, as an end, and never merely as a means. ' 56
According to this approach, criminal punishment has no purpose other than punishment itself. Punishment is an end in itself, and not a means for achieving some
particular objective or purpose. It can, therefore, be argued that the Kantian theory
of retribution requires the imposition of criminal liability, i.e., punishment. 7
153. Ibid. at para. 331.
154. Ibid. at para. 331.
155. Kant, supra note 90 at para. 553.
156. Kant, On the foundation of morality: A modern version of the Grundlegung, trans. with comm.
by Brendan E.A. Liddell (Bloomington: Indiana University Press, 1970) para. 428 at 156ff.
157. This is the conclusion of pure retribution theory of punishment. It is worth to note that according
to scholars, Hegel is not a pure retributivist; on Hegel's theory of punishment see I. Primorac,
"Punishment as the Criminal Right" in (1980) 15 Hegel-Studien 187 at 193; A. Wood, Hegel's
Ethical Thought (Cambridge: Cambridge University Press, 1990) at 108; A.M. Quinton, "On
Punishment" in H.B. Acton, ed., The Philosophy of Punishment (London: Macmillan, 1969) at
55; H-Ch. Merle, "Was ist Hegels Straftheorie" (2003) 11 Jahrbuch fir Recht und Ethik 145. See
also Holmes, supra note 88 at 40. Hegel is of the opinion that when the actor averts the danger
that threatens his life by means of taking the life of another who was not involved in creating the
danger, the actor fulfils all of the elements of the offence, and it is therefore incumbent that we
impose criminal liability. However, Hegel recognizes the situation of averting a mortal threat by
inflicting property damage as justified. Hegel holds: "The particularity of the interests of the natural
will, taken in their entirety as a single whole, is personal existence or life. In extreme danger and
in conflict with rightful property of someone else, this life may claim (as a right, not a mercy)
a right of distress, because in such a situation there is on the one hand an infinite injury to a man's
existence and the consequent loss of rights altogether, and on the other hand only an injury to a
single restricted embodiment of freedom, and this implies a recognition both of right as such and
also of the injured man's capacity for rights, because the injury affects only this property of his."
Ghanayim
However, in the instant case (causing death in a situation of mortal danger), Kant
treats only of the stage of the threat of punishment. Kant's retributive theory of punishment treats only of the imposition of punishment, and does not treat of the threat
of punishment.'58 Kant's retributive theory does not treat of the question of whether
it is possible to threaten the imposition of punishment upon offenders. In the Plank
case, Kant says that the purpose of threatening punishment is expressed in the prevention of the breach of norms, i.e., the prevention of the perpetration of criminal
offences. This function cannot be fulfilled in a life-endangering situation since the
threat of punishment cannot outweigh what awaits the actor if he should refrain
from acting. The threat of an uncertain evil is not worse than the certain realization
of that same evil. When it is not possible to threaten the actor with criminal liability
for an act, criminal liability cannot be imposed upon the actor. The ineluctable result
is that the act is not punishable. The conclusion is that the reason for not imposing
criminal liability upon the actor has nothing to do with the elements of the offence
or with Kant's retributive theory of punishment. Therefore, the claim'59 that Kant's
approach contradicts the Kantian theory of punishment is incorrect."6 The reason
for the exemption from criminal liability derives from the practical impossibility
of enforcing the law.
Two possibilities present themselves to explain the conclusion that the absence
of punishment results from the ineffectiveness of the norm as a deterrent:
According to the first possible interpretation,' 6 the reason for not punishing the
actor who perpetrates a criminal offence is technical. The reason is that a necessity
situation is a subjectively practical impossibility (Dercasus necessitatesist ... eine
psychische (subjektiv praktische) Unndglichkeit). In a situation of immediate, certain threat to life, no law can obligate a person to refrain from saving his own life,
"because there can be no law that might enjoin omission of the action cum
effectu."' 62 In other words, it is impossible for the actor to obey the law. There is
a technical failure of the law that cannot force a person to obey, and therefore the
norm is without deterrent effect. Kant's solution is essentially technical, and the
result is that the norm is ineffective as a deterrent. Therefore, the actor is exempt
form criminal punishment.'63
158.
159.
160.
161.
162.
163.
G.W.E Hegel, Philosophy of Right, trans. by Knox (Oxford: 1942) at para. 127. Hegel is thought
of as the spiritual father of necessity based upon utilitarian theory as a justifying defence in German,
Swiss and Austrian law. See Jescheck & Weigend, supra note 34 at 354.
See Kuper, supra note 4 at 29 at n. 64; Meissner, supra note 11 at 84; Hruschka, supra note 4
at 348; Sh. Byrd, "Strafgerechtigkeit bei Kant" in FestschriftfiirLampert (St. Ottilien: EOS,
1990) 137; Hruschka, supra note 112 at 217f; Mulholland, supra note 116 at 194; See also
Weinrib, supra note 24 at 638ff; E. Schmidh~iuser, Vom Sinn der Strafe, 2. Aufl. (Gottingen:
Vandenhoeck & Ruprecht, 1971) 52f; K. Altenhain, "Die Begrindung der Strafe durch Kant
und Feuerbach" in FestschriftfiirKeller (TUbingen: Mohr Siebeck, 2003) 1ff; Klimchuk, supra
note 23 at 345.
Rabe, supra note 11 at 25f; Janka, supra note 10 at 87f; A. Geyer, Lehre von der Norwehr (Jena:
Mauke, 1857) 6; Weiglin, supra note 4 at 89f; Bar, supra note 124 at 234; Stammler, supra note
11 at 45f; Finkelstein, supra note 51 at 281 at n. 9; and see J.G. Murphy, "Does Kant have a
Theory of Punishment?" (1987) 87 Colum. L. Rev. 509 at 509ff.
See also KUper, supra note 4, 29 at n. 64; Meissner, supra note 11 at 84f; Hruschka, supra note
112 at 218; Byrd, supra note 158 at 137ff; Mulholland, supra note 116 at 194.
Meissner, supra note 11 at 85; KUper, supra note 4 at 49ff.
Kant, supra note 90 at para. 599-600.
See Hruschka, supra note 17 at 193ff.
Excused Necessity in Western Legal Philosophy
According to this view, the actor in the Plank case fulfils all of the elements of
the offence, and although the retributive theory of punishment requires that he be
punished, a technical flaw in the law precludes punishment. The criminal law fails
in this case in regard to punishment. Under this approach, Kant's solution is "no
solution" (Nichtlsung) or a "failed solution" (verungliickt).' 6 The criminal law
must provide general rules of conduct, with all the related defences, and may
not-and cannot-treat of technical reasons. The technical reason is nothing but
a legal fiction that has no place in criminal law. According to this interpretation,
the Kantian theory of punishment is purely retributive. Kant is an orthodox retributivist who rejects general deterrence in criminal law, even in terms of a threat of
punishment for potential offenders.
The second possibility' 61 is that the threat of imposing punishment upon potential
offenders is not part of Kant's theory of punishment, and that, for Kant, the threat
of punishment comprises elements of general deterrence.'" In other words, the subject of the justification of imposing punishment upon an actor who perpetrates an
offence is based upon Kant's retributive theory of punishment, and the threat of
imposing punishment upon a potential actor is based upon general deterrence.
Support for this view can be found in the following paragraphs, in which Kant refers
to general deterrence as part of the role of the criminal norm, or at least does not
reject it.'67 Kant writes:
Punishment in general is the physical evil visited upon a person for moral evil. All
punishments are either deterrent or retributive. Deterrent punishments are those which
are pronounced merely to ensure that the evil shall not occur. Retributive punishments,
however, are those pronounced because the evil has occurred. Punishments are therefore a means of either preventing the evil or chastising. All punishments by authority
are deterrent, either to deter the transgressor himself, or to warn others by his example.
But the punishment of a being who chastises actions in accordance with morality
is retributive. All punishments belong either to the justice or the prudence of the lawgiver. The first are moral, the second pragmatic punishments. Moral punishments
164. Janka, supra note 10 at 85; Bockelmann, supra note 130 at 10ff.
165. See Byrd, supra note 127 at 188ff; Byrd, supra note 158 at 137ff; Kremnitzer & Ghanayim, supra
note 31 at 890; Hruschka, supra note 112 at 218; Schild, supranote 125 at 834ff; T.E. Hill, "Kant
on Punishment: A Coherent Mix of Deterrence and Retribution?" (1997) 5 Jahrbuch fur Recht
und Ethik 291; Rosen, supra note 113 at 90f, 104f; T.E. Hill, "Kant on Wrongdoing, Desert,
and Punishment" (1999) 18 L. & Phil. 407ff; Klimchuk, supra note 23 at 345; and see Wright,
supra note 128 at 285ff; Weinrib, supra note 24, Kremnitzer & Ghanayim, supra note 119 at
523; and H. Koriath, "Ober Vereinigungstheorien als Rechtfertigung staatlicher Strafe" (1995)
Jura 625 at 632ff., according to whom Kant's theory of punishment does not reject deterrent
aspects.
166. See J-C Merle, "A Kantian Critique of Kant's Theory of Punishment" (2000) 19 L. & Phil. 311;
J-C Merle, "Eine kritische Alternative zu Generalprivention und Wiedervergeltung" in Kant
und die BerlinerAufkldrung. Akten des IX InternationalenKant-Kongress (Hrsg. von v. Gerhardt,
R-P. Horstmann, R. Schumacher, Berlin: de Gruyter, 2001), Band 4, 196ff in regard to the opinion
that the justifications of punishment, according to Kant, are special deterrence and rehabilitation.
167. See, for example, H.H. Lesch, Der Verbrechensbegriff(Kaln:Heymann, 1999) 23-40, who argues
that Kant recognized general deterrence as one of the purposes of punishment until rejecting
it in Metaphysics of Morals. In other words, until Metaphysics of Morals, Kant was not a strict
retributivist, and recognized general deterrence as one of the purposes of punishment. But with
Metaphysics of Morals, Kant rejected general deterrence as part of the purpose of punishment,
and became a strict retributivist.
Ghanayim
are imposed because a sin has been committed; they are consectaria of a moral transgression. Pragmatic punishments are imposed so that sin shall not be committed; they
are means of preventing crime. ,68
According to this interpretation, general deterrence refers to the threat of imposing
criminal punishment, whereas retribution refers to imposing punishment upon an
actor who has breached a norm. This interpretation does not contradict Kant's
retributive approach. Kant does not rule out the theory of general deterrence by
means of (the threat of) punishment. This approach does not contradict Kant's
approach to human dignity-in the sense that man is an end in himself-since it
speaks only of a threat of imposing punishment upon a potential actor, i.e., it warns
the potential offender, but does not punish him in order to deter others. This interpretation of deterrence is, therefore, different from the concept of general deterrence
in Bentham's utilitarian theory of punishment. The threat of imposing punishment
upon an actor-the deterrent force and effectiveness of a norm-does not treat a
person as a means.
Professor Finkelstein is critical of Kant's approach to necessity. She is of the
opinion that "Kant's argument that necessitous killing cannot be deterred is a dubious one. There are punishments worse than death, and one need only threaten to
inflict them with sufficient certainty to induce compliance in a rational agent."'69
This criticism might be raised against necessity as a defence in modem law, but
cannot be raised against Kantian theory of punishment. According to Kant's theory
of retributive punishment, punishment is retribution for the perpetration of an
offence. The severity of the penalty is proportionate to the severity of the offence
and the actor's culpability. Retribution is a measure of just punishment for the actor.
Therefore, retributive theory of punishment does not permit-and, indeed, prohibits- the imposition of punishment that exceeds the appropriate severity (the just
punishment) in accordance with retributive theory. 7°
Indeed, Finkelstein's criticism is somewhat absurd. In the Plank case, we are
concerned with an actor who is in mortal danger who saves his life by means of
killing another person. According to Finkelstein, in such a case it is possible to
impose a penalty more severe than death-which retributive theory views as the
appropriate penalty for the actor for taking a life. Since criminal punishment is retribution, it follows that for Finkelstein-who would impose a more severe penalty
than death -killing a person in order to save another is a more severe phenomenon,
168. Kant, supra note 138 at para. 286; see also Kant's Gesammelte Schriften, XXVII2.2 (philosophische Moral, Mongovius) p. 1435f. The same in Kant, Gesammelte Schriften XIX, S. 589; Kant's
Gesammelte Schriften, XXVII.2.2, p. 1391 (Naturrecht, Feyerabend); Kant's Gesammelte
Schriften, XXVII. ., p. 150 (PraktischePhilosophie, Powalski).
169. Finkelstein, supra note 51 at 281 n. 9.
170. As stated in note 151, according to Kant a criminal norm has the normal (reasonable) deterrence,
except in life-endangering situation where the deterrence is zero. Kant did not divide the deterrence in percentages, such as 20% or 50%. The deterrence by Kant deals with the norm as an
abstract prohibition. That is the reason why Kant adopts the pure retribution theory on imposing
punishment. Kant will not accept a theory that allows high punishment (or any punishment) to
achieve deterrence. Kant will not accept the theory that said: the punishment of murder must
be death by torture in order to achieve deterrence and protecting the life. See also the text belonging to infra note 172.
Excused Necessity in Western Legal Philosophy
i.e., worse regarding the wrongdoing of the act and the culpability of the actor, than
regular murder, i.e., the killing of a person without the simultaneous rescue of
another. That is an absurd result. Moreover, the Kantian theory of punishment forbids imposing punishment that infringes human dignity, even if the perpetrator acts
cruelly, or brutally, or tortures his victim.'
Kant is aware of the possibility of raising such objections as Finkelstein's, and
answers them in line with his thinking, stating:
[T]he law of retribution (ius talionis) ... can specify definitely the quality and the
quantity of punishment; all other principles are fluctuating and unsuited for a sentence
of pure and strict justice because extraneous consideration are mixed into them ...
If, however, he has committed murder he must die. Here there is no substitute that
will satisfy justice. There is no similarity between life, however wretched it may be,
and death, hence no likeness between the crime and the retribution unless death is
judicially carried out upon the wrongdoer, although it must still be freed from any
mistreatment that could make the humanity in the person suffering it into something
abominable. ,72
Professor Finkelstein continues her criticism of Kant's approach by arguing that
"his claim that undeterrable conduct ought not to be punished is problematic. Why
should the State fail to punish an individual to the full extent he deserves just
because his evil conduct was inevitable, given his strong, self-interested motivation?
That seems an unduly utilitarian consideration for a retributive theory of punishment."'' Professor Chapman is of the opinion that "the argument provided for
excuses by Bentham and Kant is surprisingly similar."'74 But the two approaches
differ in that according to Bentham "the conduct motivated by necessity is pointless
because it is undeterrable, Kant's argument is that because the legal order is
achieved in an essentially coercive way, and is it to be contrasted in this respect
with the autonomy that comes by way of free, moral action, then the law qua law
cannot operate on someone in necessitous circumstances because such a person
cannot coerced by law at all."' 75 Chapman goes on to say: "Hence punishment is
without its point. But this is true for any accused who has committed any crime
no matter what the particular circumstances (save possibly those where the punishment was not made public in advance). Thus, the argument of pointless punishment, when it focuses too much on the specific accused, has the effect of making
76
'
all punishment equally pointless. '
These criticisms are to be rejected by the Kantian theory of punishment. As
earlier stated, Kant distinguishes between the threat to impose punishment, which
171. Also see Weinrib, supra note 24 at 636; Mulholland, supra note 116 at 188f; Rosen, supra note
113 at 91 n. 28; J.G. Murphy, Retribution, Justice, and Therapy (Dordrecht: Reidel, 1979) at
85; T.E. Hill, "Kant on Punishment: A Coherent Mix of Deterrence and Retribution?" (1997)
5 Jahrbuch fuir Recht und Ethik 305; Byrd, supra note 158 at 146f; J. Waldron, "Lex Talions"
(1992) 34 Ariz. L. Rev. 25 at 40; Klimchuk, supra note 23 at 350; Ripstein, supra note 23 at
421-23.
172. Kant, supra note 14 at 332f.
173. Finkelstein, supra note 51 at 281 n. 9.
174. B. Chapman, "A Theory of Criminal Law Excuses" (1988) 1 Can. J. L. & Jur. 75 at 76.
175. Ibid. at 76 n. 7.
176. Ibid. at 77.
Ghanayim
comprises utilitarian elements, and the imposition of a purely retributive punishment. Therefore, there is no contradiction between Kant's approach to necessity,
77
which is based upon utilitarianism, and his retributive punishment theory.
Moreover, Kant does not base the exemption from responsibility upon the actor's
mental state. Although one can discern a psychological element in Kant's
approach, 7 1 the reason for exemption from criminal responsibility in the Plank case
is that the norm has no coercive force. 79 Additionally, if objections are raised against
modem law, those objections contradict the concept of culpability. Culpability is
a person's mental ability to act in accordance with the law, and expresses the measure of public reproach appropriate to the actor's antisocial conduct. The more reprehensible the actor's conduct the greater his culpability. The more deplorable the
actor's motive, e.g. racism, the more severe his culpability."s In the Plank case, we
are faced with the saving of a life that is in mortal danger. Saving a human life is
a good motive. Certainly, it cannot aggravate the actor's culpability. Therefore, a
person in mortal danger who acts to avert that danger acts in circumstances that
8
mitigate culpability.' '
For Kant, the scope of necessity is quite limited. Kant treats of certain danger
to life that is immediate or very near-the case of drowning. He does not consider
mortal threats that are uncertain or that are not proximate, but which also place
a person under not inconsiderable pressure to avert them. He also does not treat
of serious threats of grievous bodily harm or of severe impairment of health. It can
be argued that when a person is faced with such threats, and inflicting property
damage can avert them, Kant's theory grants a defence. This is because Kant views
punishment as retribution for antisocial conduct that is accompanied by culpability,
and the punishment for intentionally damaging property is not more severe than
the realization of the threatened serious harm to life or person. In other words, the
evil threatening the actor in the case of inaction is greater than the evil that awaits
him if he chooses to act. Therefore, prohibiting the destruction of property would
be ineffective. When an actor finds himself in a situation that threatens severe harm
to his person or health, or uncertain threat to life, and if that threat can be averted
by inflicting severe harm upon the person or the health of another, an actor will
choose to avert the threat, since the punishment for inflicting grievous bodily harm
may be severe, but from the perspective of the actor, it is not worse than permanent,
severe physical handicap or death. According to this assumption, the actor enjoys
a defence. The argument that in such cases the actor should be held criminally liable
in order to deter the public cannot stand, because Kant expressly rejects it. Kant
is interested only in imposing criminal punishment upon the actor.
But it is questionable whether Kant would accept these conclusions. It may be
assumed that Kant treats of the case of immediate danger to life because death (the
177.
178.
179.
180.
181.
See text belonging to supra note 165.
See text belonging to supra notes 123-24.
See text belonging to supra note 88, and see Byrd, supra note 127 at 190ff.
See Ghanayim, supra note 1.
For an in-depth examination of this subject, and on the argument that necessity is based, inter
alia, upon significant, double mitigation of culpability, see Ghanayim, ibid.
Excused Necessity in Western Legal Philosophy
result of the realization of the threat) induces a level of fear that is not shared by
any other social phenomenon. The case of a threat of certain death is exceptional,
and cannot serve to embody a general approach.
As earlier noted, Kant's approach exerted significant influence upon the development of the defence of excusing necessity in criminal law. It is argued that Kant's
approach is not dogmatic. Criminal law must develop fundamental principles by
which to treat of criminal phenomena. Technical solutions are nothing but fictions
that have no place in criminal law. Excusing necessity should be defined as a
defence in criminal law. Additionally, Kant views the ineffectiveness of the norm
as a reason for not imposing criminal responsibility upon the actor. Kant argues
that the threat of future evil is no worse than the threat of the certain realization
of the same threat. This argument can be said to comprise psychological elements,
in that it is the psychological state of the actor that is the deciding factor. Following
this line of reasoning, there need not be a mortal threat. It is sufficient that the actor
imagine that there is threat of certain death, even if that belief is unreasonable.
Therefore, when modem law demands an objective test, or a modified objectivesubjective test to examine the existence of a threat, the psychological state of the
actor is not the only deciding factor. In terms of the desired law, the appropriate
approach would be to recognize excusing necessity based upon the diminished antisocial nature of the act, and the substantial, double mitigation of culpability (as
substantive rationales in criminal law), and upon negative deterrence (individual
and general) as a consideration of the theory of punishment that constitutes an
aspect of justice (as an aspect of legal policy considerations).' 82
IV.As early as 1668, Pufendorf expressed the view that when an actor innocently
finds himself in a situation that endangers his life, or threatens grievous harm, and
the only means available for averting the threat involves infringing the rightsincluding taking the life-of an innocent third party, the actor is not criminally
liable. The rationale for this is the human survival instinct, in the sense that a person
cannot be required to face the danger. Feuerbach developed this reasoning into the
theory of psychological coercion,'83 which influenced the development of the doctrine of psychological pressure that formed the basis for recognizing excusing necessity in sec. 35 of the German Criminal Code,'" as well as the basis for the doctrine
182. See ibid.
183. A. Feuerbach, Lehrbuch des gemeinen in Deutschland gidtigen peinlichen Strafrechts. Mit vielen
Anmerkungen und Zusatzparagraphenund mit einer vergleichenden Darstellungder Fortbildung
des Strafrechts, 13. Aufl. (Hrsg. von C. J. A. Mittermaier, Giessen: Heyer, 1840) sec. 90, 91.
184. Feuerbach's approach was adopted in the Bavarian Criminal Code (1861), and the Prussian
Criminal Code (1851), see Chmielewski, supra note 124 at 15. The German Criminal Code of
1871, which remains in force to this day, is built upon those two laws. See C. Roxin, Strafrecht
Allgemeiner Teil, Band 1,3. Aufl. (MUnchen: Beck, 1997) 72ff. Section 35, which defines excusing necessity, has not been significantly changed.
Sec. 35. Excusing Necessity
"(1) Whoever commits a wrongful act in order to avert an imminent and otherwise
unavoidable danger to his own life, limb or liberty, or to that of a relative or person close
to him, acts without culpability. This rule does not apply in so far as under the prevailing
circumstances the perpetrator could be expected to have assumed the risk, especially
because he was himself the cause of the danger or because he found himself in a special
Ghanayim
of culpability.'85
Feuerbach attempts to treat of excusing necessity as part of his overall treatment
of the elements of the offence, within the general framework of the offence.
Feuerbach rejects the theories developed by Pufendorf, Kant, and Fichte, which
does not distinguish the element of the offence that is not realized in a case of necessity, and which fails to develop a theory or provide a solution that substantively
addresses the structure of the offence and the place of necessity within that structure.
In Feuerbach's writings one finds the beginnings of a general doctrinal approach
to criminal law, i.e., a fundamental examination of the offence, a definition of its
elements and structure, and the place of defences to criminality within that
structure.'86
Like his predecessors, Feuerbach considers the situation of a threat to life, or
a threat of grievous bodily harm. He is of the opinion that necessity is based upon
the doctrine of the human survival instinct in natural law. According to Feuerbach,
law is psychological coercion, and its role is to deter people from committing
offences. In a situation of threat to life or threat of grievous bodily harm, a person
cannot be required to face the danger. Facing the danger would mean death or severe
injury. The reason for exempting the actor from criminal responsibility is premised
upon the extreme psychological state of the actor. In such a situation, the actor lacks
the ability to act in accordance with the requirements of law, i.e., to respect society's
rules, and therefore is not responsible (Unzurechnungsfiihig).87
This is the conclusion to be deduced from Feuerbach's theory of punishment,
according to which the purpose of punishment is to prevent the infliction of social
harm, i.e., to prevent infringement of societal values by deterring the actor and the
general public.' 8 Here, Feuerbach relies upon Kant's view that the prohibition upon
killing lacks coercive force in a life-and-death situation,'89 and he takes the view
that the actor is therefore not responsible. When an actor cannot be prevented from
infringing society's protected interests, society's rules are not directed at him, and
the actor is not responsible for his actions.'" According to Feuerbach, legal capacity
for criminal responsibility (Zurechnungsfdhigkeit)and deterrence are identical.
185.
186.
187.
188.
189.
190.
legal relationship. If however, the perpetrator did not have to assume the risk with regard
to a special legal relationship, the punishment may be reduced in accordance with the
provisions of sec. 49 (1).
(2) If in committing the act, the perpetrator assumes the existence of circumstances
which under subparagraph (I) would excuse his conduct, he shall be punished only if
he could have avoided the error. The punishment shall be reduced in accordance with the
provisions of sec. 49 (1)."
See K. Kiihl, "Zur rechtsphilosophischen Begrundung des rechtfertigenden Notstandes" in
Festschriftfiir Lenckner (MUnchen: Beck, 1998) 143 at 147.
See Bockelmann, supra note 130 at 16.
Feuerbach, supra note 183, sec. 90 at 91.
Feuerbach, ibid. sec. 84. Feuerbach is considered the father of the theory of general deterrence
that underlies the Continental approach to criminal punishment exemplified in the legal systems
of such countries as Germany, Austria, and Switzerland. Feuerbach's theory of punishment is
also based upon the theory of psychological coercion, see Roxin, supra note 184 at 48f; G.
Stratenweth, Schweitzerisches Strafrecht-Allgemeiner Teil , 2. Aufl. (Bern: Stdmpfli, 1996)
21 f; Jescheck & Weigend, supra note 34 at 72ff.
On Kant's approach, see supra note 88.
See also Janka, supra note 10 at 93.
Excused Necessity in Western Legal Philosophy
Feuerbach's approach' 9 ' contributed to the development of the psychological
coercion theory that grounds the necessity defence in German law. While Feuerbach
believes that the actor is not responsible in the sense that, due to his extreme psychological state, he lacks the capacity for criminal responsibility (unzurechnungsfahig) in a life-and-death situation, others argue that an actor in circumstances of
necessity has criminal capacity (zurechsnungsfdhig), but is not culpable. The actor
is in a mental state in which he lacks psychological capability. This is how the psychological coercion theory that supported the enactment of the necessity defence
developed. Feuerbach, relying on Kant, made a significant contribution to the development of the necessity defence.'92
In modem law, excusing necessity is not based solely upon the actor's severe
mental distress. Excusing necessity is based upon the diminished antisocial nature
of the act, upon the substantial, double mitigation of culpability (as substantive rationales that require that we view necessity as a defence that significantly mitigates
criminal responsibility), and upon negative deterrence (individual and general) as
an aspect of the criminal punishment considerations that form part of the principles
of criminal justice. These considerations, as considerations of legal policy, support
viewing excusing necessity as a defence to criminal responsibility.'93
191. An approach similar to that of Feuerbach was expressed by F. Bacon, The Elements of the
Common Lawes of England (London: 1630, Reprint Amsterdam: Theatrum Orbis Terrarum,
1969) 29. Also see See P.R. Glazebrook, "The Necessity Plea in English Criminal Law" (1972)
30 Cambridge L. J. 110; R. v. Dudley & Stephens, (1884) 14 Q.B.D. 285. Bacon took the view
that the law cannot accuse and impose liability upon an actor who acts in coercive circumstances
that force him to act as he does. In such circumstances, the actor does not act voluntarily. In a
situation of necessity of conservation of life, the act is committed by reason of coercion and not
by free choice. In the case of the Plank of Carneades, Bacon states: "So if divers be in danger
of drowning by the casting away of some boat or barge, and one of them get to some plank, or
on the boates side to keep himself above water, and another to save his life thrust him from it,
whereby he is drowned; this is neither se defendendo nor by misadventure, but justifiable."
192. See Bemsmann, supra note II at 178.
193. See Ghanayim, supra note 1.