The Defense of Necessity and Powers of the Government

Criminal Law and Philosophy, Vol. 3, 2008

Fordham Law Legal Studies Research Paper No. 1234342

14 Pages Posted: 19 Aug 2008 Last revised: 7 Sep 2008

Youngjae Lee

Fordham University School of Law

Abstract

If one of the lessons of the ubiquitous and highly problematic "ticking bomb" scenario is that torture may be justified under certain narrowly specified situations, why would we not want it made available as a weapon in the government's anti-terrorist activities? This is not a new question. It has been hotly debated, and a number of arguments have been made against the idea of formulating the torture policy on the basis of the ticking-bomb hypothetical. The question that this Essay addresses is related but narrower: if one starts from the proposition that the ticking bomb scenario demonstrates that a government official facing prosecution for torture may have available the necessity defense, what implications, if any, should the government be able to draw from the existence of the defense as it formulates its torture policy? This Essay discusses - and rejects - one common answer to this question - that the nature of the necessity defense is such that it can generate no forward-looking prescriptions. This Essay then advances a new argument on the basis of the nature and function of the necessity defense as not only spelling out morally permissible instances of harm infliction but also effecting a division of power between the state and citizens.

Keywords: Necessity, Ticking Bomb, Torture

Suggested Citation

Lee, Youngjae, The Defense of Necessity and Powers of the Government. Criminal Law and Philosophy, Vol. 3, 2008; Fordham Law Legal Studies Research Paper No. 1234342. Available at SSRN: https://ssrn.com/abstract=1234342

Youngjae Lee (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States
212-636-7662 (Phone)

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