On Necessity Defense in a Democratic Welfare State: Leaving Pandora's Box Ajar

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The necessity defense is barely accepted in contemporary Western jurisprudence. The courts, relying on the majority scholarship opinion, have reduced its margin of application to practically zero, since in the framework of contemporary social states, there is almost always a “legal alternative.” The imperiled agent who acts on his own behalf, regardless of whether he saves a higher interest than the one he injures, does not show due deference to democratic legal solutions and procedural channels. This article aims to contest this abrogative interpretation of the necessity defense and to outline the limits of its legitimate scope. Even in welfare states, there are actions in a necessity scenario that neither question the legal decisions of the democratically elected legislator, nor make a mockery of established procedural channels. A political-democratic understanding of the necessity defense, in short, does not mean its disappearance.