The Virtue of Necessity: Reshaping Culpability and the Rule of Law

Posted: 29 Jan 1999

Abstract

The prevailing rationale for the necessity defense is consequentialist: a defendant should be acquitted if his or her conduct increased net social welfare. Courts mouth this rhetoric but also erect high barriers in front of defendants who have strong balance of harms arguments ? for example defendants in civil disobedience cases (it?s hard to deny that the benefit of stopping an immoral or potential dangerous activity outweighs the harm of, say, trespass on government property). As a result, juries rarely see the defense. This article explains and attempts to resolve the tension between the net social welfare doctrine of necessity and the results in actual cases, and does so in a manner that has implications for our approaches to culpability and the rule of law generally. Necessity claims create anxiety for courts because they seem to allow ad hoc acquittals, thereby undermining the rule of law-based values such as consistency that we associate with the criminal law. The consequentialist formulation of the defense addresses this anxiety by treating necessity as if it were a simple mechanical inquiry into the relative weights of social harms and benefits. Yet when it comes time to decide a case, courts base their decisions not on net social welfare but on whether or not the defendant acted appropriately under the circumstances. This evaluation includes an assessment of harms, but it also sweeps more broadly to include normative issues that are too often masked or not easily contained by consequentialist analysis. This broader evaluation is nothing more or less than an inquiry into the personal moral culpability of the defendant. It turns out, in other words, that necessity claims can be restated as culpability claims, and any analysis of necessity must explain the defense?s relationship to principles of culpability.

There is no real alternative to a culpability-based approach. Efforts to fit necessity within the confines of consequentialism, or the common alternatives of voluntarism and character theories, simply don?t work because all of those approaches mask important normative questions and make untenable assumptions about human character and experience. Rather than push necessity and culpability into one or the other of these theories, courts and commentators should reconsider their approach. Culpability and necessity should be reconceived as frameworks for the broader moral inquiry that ranges across harm, choice, and issues of character ? and whatever other issues the decisionmaker chooses to consider ? to determine whether the defendant?s conduct was appropriate and desirable under the circumstances and in light of community values.

This is the point at which rule of law theorists begin to complain that case-by-case adjudication threatens the predictability that is essential to the criminal law. But predictability is an illusion even in the definition of offenses, and any effort to impose it on a defense threatens to do more harm than good to the overall structure of the criminal law. The key to the rule of law is not so much the application of clear and consistent rules in particular cases as it is the legitimacy of the system over time. And legitimacy, in turn, depends to a strong degree upon the attitude of citizens. If they believe that they can present their own explanatory narrative of their conduct, and that their narrative will be taken seriously (and that others will have the same opportunity), then they are more likely to believe the law is legitimate. Defenses such as necessity allow the presentation of these alternate narratives, and thus are crucial to maintaining the legitimacy of the criminal law.

The importance of legitimacy and the need for a moral evaluation also explain why necessity claims ? and issues of culpability generally ? should be entrusted to the jury. If culpability and necessity are frameworks within which the decisionmaker employs a shifting mix of factors to determine whether the defendant?s conduct was appropriate and desirable under the circumstances, then that decision cannot be left solely to the discretion of a judge. The normative evaluation of the defendant?s conduct should be made by the entity best situated to make a community moral judgment (not to mention the entity whose judgments are most likely to be accepted within a community). Entrusting the decision to the jury also promotes moral dialogue within the community and between the community and the criminal justice system, which is a central function of the criminal law.

Suggested Citation

Parry, John T., The Virtue of Necessity: Reshaping Culpability and the Rule of Law. Available at SSRN: https://ssrn.com/abstract=148012

John T. Parry (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6888 (Phone)
503-768-6671 (Fax)

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