A Choice Among Values: Theoretical and Historical Perspectives on the Defence of Necessity

39:4 Alberta Law Review 848-63, 2002

16 Pages Posted: 22 Jun 2012 Last revised: 30 Oct 2013

See all articles by Benjamin L. Berger

Benjamin L. Berger

York University - Osgoode Hall Law School

Date Written: 2003

Abstract

The author explores various theoretical approaches to the defence of necessity, rejecting both excusatory conceptions of the defence and those based on the notion of moral involuntariness. Rather, the author argues that necessity is properly understood as a justificatory defence based on a lack of moral blameworthiness. After extensively surveying the history of the defence in Canadian law, the author critiques the way in which the Supreme Court of Canada has restricted the defence. He contrasts the current Canadian approach with the treatment of the defence in other jurisdictions and concludes that Canadian law would be served best by a robust defence of necessity, which would acknowledge that, in some circumstances, pursuit of a value of greater worth than the value of adherence to the law can be justified.

Keywords: necessity, defence, law, criminal law, supreme court, canada

JEL Classification: K14, K40, K41, K42

Suggested Citation

Berger, Benjamin L., A Choice Among Values: Theoretical and Historical Perspectives on the Defence of Necessity (2003). 39:4 Alberta Law Review 848-63, 2002. Available at SSRN: https://ssrn.com/abstract=2088334

Benjamin L. Berger (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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