The Divorce or the Marriage of Morality and Law?: The Defence of Necessity in Pacific Island Countries
39 Pages Posted: 23 Jul 2013
Date Written: November 23, 2009
This article develops a new approach to the defence of necessity. Although the discussion is primarily situated in the context of the Pacific Island countries, it has relevance and application to criminal law theory more broadly and also to international criminal law. Working within the framework of the republican theory of criminal justice developed by Braithwaite and Pettit, it proposes two new codified defences: a defence of justified necessity judged according to an objective standard, and a defence of excused necessity judged according to a primarily subjective standard. It argues that each defence serves a different jurisprudential purpose, and that both are important in a fair and balanced criminal justice system. It also discusses the utility of other limitations on the defences, such as the requirement of imminent peril, its availability for murder and exclusion of self-induced necessity. Finally, it argues that adopting a uniform approach to criminal law reform in the region will encourage more cross-referencing between jurisdictions and thus foster the development of a more endogenous regional criminal law jurisprudence.
Keywords: criminal law, necessity, defence, Pacific islands, customary law, legal pluralism
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