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Canadian Journal of Law and Jurisprudence

January, 2006

Editors: Richard Bronaugh & Peter Barton

*31 Excused Necessityin Western Legal Philosophy

Khalid Ghanayim[FNa1]

Copyright 2006 by Canadian Journal of Law and Jurisprudence; Khalid Ghanayim

Introduction

The possibility of saving a human life by causing death of another person who was not involved in creat-

ing the danger is a situation that has fascinated the legal world since antiquity. A well-known case in west-

ern thought is the dilemma referred to as two men and a plank. Two men are shipwrecked on the high sea.

As their strength ebbs and they are about to drown, they see a wooden plank that is just large enough to sup-

port one man. There are two variations to this case. According to one version, when one of the men has

already managed to grab hold of the plank and lie upon it, the other in order to save his own life

pushes the first off the plank and drowns him. In the other version, neither has possession of the plank. The

two men race toward it. One of them pushes the other, and grabs hold of the plank. The question is whether

a person may save himself at the expense of another's life?

This case has been the cause of much debate among jurists and philosophers. Some legal systems regard

it as a case ofnecessitythat affords an excusing defence. An actor who saves his own life at the expense ofanother enjoys the defence of excusing necessity, and will not be punished for his conduct. [FN1]Other leg-

al systems view the situation as one that affords a defence that significantly mitigates, and that may com-

pletely exempt the actor from punishment. In other words, the defence requires that the court significantly

diminish the criminal responsibility of an actor who saves his own life at the expense of another, and the

court may (but is not obliged to) exempt the actor from any punishment.[FN2]As opposed to these two ap-

proaches, some legal systems grant no defence whatsoever. The actor, at least in principle, bears full crimin-

al responsibility for murder.[FN3]

Some of world's greatest philosophers, from antiquity to the present, have addressed the Plank problem.

The debate is not confined to the issue of solving the riddle, but extends even to the question of its author-

ship and origin. Some attribute the Plank case to the Greek sceptic Carneades, who was Scholar of the*32

Academy in the second century B.C. Thus, the case is often referred to as the Plank of Carneades. [FN4]

Cicero ascribes it to the second century B.C. stoic philosopher Hecaton of Rhodes.[FN5]Others assign it to

Carneades' opponents.[FN6]

The case is deemed a standard in European legal literature.[FN7]The problem posed by this example,

and others like it, was also addressed in ancient Eastern philosophy (Islamic and Jewish philosophy). Thus,

we find a discussion between Rabbi Akiba and Ben Petura of a case of two men lost in the desert, who have

only one bottle of water. If they share the water, both will die of thirst before they reach civilization. Islamic

legal philosophy deals with same issues and discusses the question if the necessityis a good defence.[FN8]

The questions posed by the Plank of Carneades, and situations like it, have served as the subject of philo-

sophical debate throughout the world, and throughout the ages. Moreover, the plank case is the basis of a

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dramatic poem.[FN9]

In Roman times, situations that afforded a defence ofnecessitywere treated casuistically, but the Roman

jurist Domitus Ulpian believed that any act intended to avoid a threat to human life was not punishable.[FN10] Canon Law continued in the casuistic mode. Although Canon Law took the view that necessity

makes the prohibited permissible and mitigates punishment, and that necessityis not subject to law quod

non est licitum in lege, necessitas facit licitum, necessitas non habit legem. However, these statements re-

main obscure, and only the case of stealing food in a situation of hunger merited any widespread attention.

[FN11]The approach was derived above all from the religious injunction to love thy neighbour as thyself,

as developed primarily by St. Thomas Aquinas. Aquinas held that the duty to love one's neighbour prohib-

ited theft, including the theft of food. Each person must bear*33 his own burden in life, and may not trans-

fer it to the shoulders of another. An exalted purpose does not make a prohibited, anti-social act permissible

(the ends do not justify the means). However, when an immediate threat to life can be averted only by steal-

ing food, such theft is permitted. This exception, as well, is based upon the command to love thy neighbour

as thyself. When human life is under immediate threat, private property becomes public property for the

public good in necessitate omnia sunt communia and any endangered person may use it to avert thethreat. The true owner of the property must come to the aid of his fellows, and accept the infringement of

his proprietary rights (the duty of social solidarity).[FN12]

This approach was also adopted by Hugo Grotius. [FN13]The rationale for the approach was the human

survival instinct. It should be noted that the prevailing view was that the rationale of the human survival in-

stinct and, therefore, the necessity defence itself applied only in regard to property damage. The ne-

cessity defence could not be called upon to justify the infringement of a legally protected interest if that in-

terest were life or physical integrity. This conclusion follows ineluctably from St. Thomas Aquinas ap-

proach, because unlike property, a human life or a human body cannot become a public asset. Moreover, the

prohibition upon killing is a religious duty that does not admit of taking an innocent life in a case ofneces-

sity.[FN14]Some scholars, however, recognized the necessitydefence in the case of abortion.[FN15]

In this paper, I intend to present the positions of Pufendorf, Kant, Fichte, and Feuerbach on the question

of the applicability of the necessity defence to cases of a life for a life. It was Pufendorf who revived the

Plank dilemma and made it an attractive subject for philosophical debate. [FN16]Pufendorf greatly influ-

enced the philosophers who followed him.[FN17]Kant is the philosopher who exerted the greatest *34 in-

fluence upon German law.[FN18]The German legal system was the first to address this subject to any sig-

nificant extent. German law chose to recognize necessity as a defence in situations of a life for a life, and

thus greatly influenced the many legal systems that chose to follow the same course. [FN19]

Kant's philosophical approach greatly influenced the views of Fichte,[FN20]and of Feuerbach.[FN21]

Fichte will be examined because his approach is very similar to that of Pufendorf. Feuerbach was a German

philosopher whose views influenced the criminal law of Bavaria, which formed the basis of the GermanCriminal Code of 1871,[FN22]which remains in force to this day. However, it is Kant's philosophy that

will form the main focus of this examination. Kant's philosophy is the most complex, and it is the approach

that exerted the greatest influence upon Continental law. Moreover, of late, Anglo-American jurists have

been showing a growing interest in Kant's writings, [FN23]and interest in Kant's approach to the Plank di-

lemma is no longer limited to scholars of the criminal law but has come to the attention of private law schol-

ars, as well.[FN24]The main purpose of this article is to present the approaches of the philosophers on the

plank case, and so the excused necessity. The intention is that this article have to be a good basis for dis-

cussing and analysing the excused necessity in criminal law; that because there are papers that present

Kant's view on excused necessity in different, and I think in a wrong way. [FN25]This paper will not dis-

cuss the views of the philosophers in light of modern theories, such as the Utilitarian theory and the Law and

economics school.[FN26]





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It is worth noting that the philosophers in the 17th century, such as Pufendorf and Antonius Matthus,

[FN27]and even earlier, discuss not only the scope of the defence, but also the nature of the defence, such

as justifying defences, excusing defences, and defences that only negating punishment. For example, Pufen-

dorf distinguishes between a lawful act performed under circumstances of self-defence and an act that war-rants only excuse.

The distinction between justification and excuses is well-known in all legal systems, and accepted in

most codes, such as the German penal code.[FN28]Few scholars *35 continue to adopt the view that the

distinction between justification and excuses is without any ramification. They claim is that criminal punish-

ment is the means for implementing legal rules; it is the criminal justice system's teeth in enforcing legal

principles. Without punishment, compliance with the law is a matter of personal choice. Viewing a particu-

lar act as one that is antisocial and excusedis merely a recommendation lacking practical effect. The protec-

tion afforded to the interest infringed by the antisocial butexcusedconduct is nominal and theoretical. In the

instant case, refraining from imputing criminal responsibility to the actor for antisocial excused conduct

weakens the protection granted to the interest, to some extent. Moreover, when society looks at the bottom

line of conviction or acquittal, it makes no difference whether the conduct was justified and socially accept-able, or antisocial but legally excused.[FN29]

Although no criminal penalty is imposed upon an excusedactor, i.e., the actor is completely acquitted of

punishment, such an acquittal does not play the same role or bear the same significance as being exonerated

due to the justification of the conduct. The criminal law fulfils an educational role that is also expressed in

the distinctions that it makes among different kinds of acquittal. Thus, viewing an act as one of justified ne-

cessity, like saving a life at the expense of damaging property, indicates that the act is acceptable in the eyes

of society, and that doing it is both correct and desirable. The public is encouraged to perform like acts. As

opposed to this, when conduct is merely excused, like saving one life at the expense of another, the implica-

tion is that the act is both antisocial and prohibited. Society refrains from imposing criminal punishment in

recognition of the actor's dire circumstances. The acquittal is not an expression of the conduct's acceptabil-ity. Therefore, reinforcing public faith in respecting social values and criminal norms requires that we

clearly distinguish among the various defences to criminal liability. Moreover, the public distinguishes

among the various defences, as well as among the different types of acquittal. [FN30]Thus, for example,

damaging property in order to save a human life is a justified act by reason of justified necessity. As op-

posed to this, an antisocial act that is merely excused, as in the case of a life for a life in a situation ofneces-

sity, is a prohibited act. The argument that society does not afford importance to the reasons for acquittal

e.g., acquittal by reason of justified necessity, as opposed to acquittal by reason ofexcused necessity

stands in stark contrast to the worldview of modern societies. The argument would have us equate property

and life, which is equivalence unacceptable to any modern society. Additionally, the distinction between a

justifying defence and an excusing defence is of practical consequence. One may not oppose or defend one-

self against conduct done under the circumstances of justifying defence. Thus, one may not act to prevent*36 damage to property that is intended to save a life. As opposed to this, a person has a right to oppose (in

self-defence or by necessity) conduct that is merely excused. [FN31]Therefore, there are two alternative

courses, or two possibilities for accomplishing the purpose of the criminal law: Either an act is justified and

permitted, or it is unlawful and prohibited. [FN32]The law must distinguish the defences to criminal re-

sponsibility, and cannot employ such terms as does not bear criminal responsibility. The law cannot definenecessity as a situation that negates punishment without defining it as a defence to criminal liability. Such a

definition could lead to the mistaken conclusion that acting under such circumstances is permissible and so-

cially acceptable.[FN33]Such an approach is unacceptable because when we in justify conduct performed

in a state of necessity that causes harm equal to the harm prevented we send a message that the actor's in-

terests are to be preferred to those of his innocent victim, and may even make that assumption. An approach

that justifies taking the life of an innocent bystander in order to save the life of the actor comprises an under-





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lying assumption that the actor's life is more valuable than the life of his victim. The victim's autonomy is

not protected. He is no longer an end in himself, but to some extent, a means for protecting the life of the

actor. A society that values the individual and his needs as a free, autonomous being, cannot justify conduct

that inflicts harm equal to that it prevents. Such conduct is antisocial, and prohibited. [FN34].

I. Pufendorf was the first German philosopher to attempt to establish general principles concerning ne-

cessity. His treatises were the first to address general issues of criminal law and jurisprudence. His writings

primarily concentrate on the general part of criminal law, that is, the general principles for criminal liability

(the structure of criminal offences), and he established a doctrinal distinction between the general part and

the specific part of criminal law. His works were characterized as treatises on the general part of the crimin-

al law (the theory of the criminal offence), and on the general part of jurisprudence.

*37 In 1668, Pufendorf[FN35]became the philosopher to define necessityas a general doctrine of crim-

inal law that applies to all criminal offences, and which is part of the general part of the criminal law.

[FN36]Up until then, necessitywas treated casuistically,[FN37]and only applied to a small number of of-

fences. Pufendorf became interested in the case of an actor who, through no fault of his own, finds himselfin a situation that endangers his life or presents a severe threat to his limb, and that can be avoided only by

infringing the legally protected interests of a third party. In such a case, Pufendorf holds that:

self-preservation is valued so highly that it is held to exempt a man in many cases from the obligation of

the common laws, if that is the only way it can be secured. For that reason, necessity, it is said, knows no

laws'.[FN38]

In a situation ofnecessity, the actor can take whatever action may be necessary to thwart the impending

danger, even if that action harms the legally protected interests of another, including life, physical integrity,

health, liberty or property. This approach represented an expansion of the legal situation that then existed,

which allowed only for the possibility of inflicting harm to property (and to a foetus in the case of abortion).

[FN39]

The underlying rationale ofnecessityis human self-preservation imbecillitas humana.[FN40]In situ-

ations that threaten life, severe physical harm, or impairment of health a person cannot be obligated to re-

frain from saving himself. Since man values his own preservation so highly, one does not readily presume

that any obligation has been imposed on him which should take precedence over his own safety. [FN41]

The human instinct for self-preservation is stronger than any duty. Of course, God (religious law) and the

Sovereign (positive law) can require that people refrain from endangering others, or even oblige them to put

their own lives at risk. But the situation ofnecessity is different: legal obligations are not presumed to be

always so strict ... laws, particularly positive laws, and all human costumes are generally regarded as making

an exception for the case ofnecessity.[FN42]

Necessityknows no law is the rule according to Pufendorf. In a case ofnecessity, the law does not im-pose an obligation, i.e., the legal prohibition loses its imperative force. There is simply no law that requires

that a person refrain from preserving his life, even if saving oneself comes at the cost of harming another.

Interestingly, according to Pufendorf, the exemption from criminal responsibility, *38 i.e., the rationale of

necessity is not the extreme emotional state in which the actor finds himself, but a human instinct for self-

preservation that is not obliged to respect criminal norms. Thus Pufendorf states: For this reason, neces-

sity it is said, knows no laws'.

Another question that interested Pufendorf was the nature of the necessitydefence. Is necessitya justi-

fying defence that grants the actor a right? Is it an excusing defence that negates culpability? Or is it a de-

fence that merely negates the imposition of punishment, i.e., a defence that applies only if the actor fulfils

all of the elements of the offence, including culpability? Pufendorf was of the opinion that in a case ofne-





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cessity there is no offence. Thus, he rejected the view of the Dutch philosopher Antonius Matthus, accord-

ing to which necessity is but a defence to punishment for an offence that has been committed. [FN43]In a

case ofnecessity, there is simply no offence.

In stating that the law does not governnecessity, Pufendorf backed away from question of the nature of

necessity. According to Pufendorf, necessity is neither a justifying defence nor an excusing defence, since

the law does not govern necessity, i.e., it does not fall within the purview of the law and is injusticiable.

[FN44]Therefore the situation does not admit of a criminal offence. One might say that, according to Pufen-

dorf, penal norms are instructions to do or not to do. They are intended to instruct individuals to adopt cer-

tain forms of conduct as opposed to others, when such a choice is possible, and the individual is at liberty to

make such a choice. When an individual cannot be required to adopt a particular course of action, as in the

case ofnecessityfor the purpose of preserving human life, the criminal law is without force. In such cases,

there is no criminal prohibition, the situation does not fall within the scope of the offence, and is of no con-

cern to the criminal law. The conduct exists in a legal vacuum and is injusticiable.

Pufendorf brings examples to demonstrate his approach. He refers to a situation very similar to theAmerican Holmes case,[FN45]which also shares certain characteristics of the English Dudley and Stephens

case.[FN46]Pufendorf's case is described as follows:

If in a shipwreck more men have leapt into a lifeboat than it can carry and the lifeboat does not

belong to one of them by any particular right, it seems one should draw lots as to who should be

thrown overboard, and anyone who refuses to take his chance in the lottery may be tossed out in any

case without reference to the draw, on the ground that he intends the death of all of them. [FN47]

*39 Pufendorf also addresses the Plank of Carneades case, and takes the view that each can[FN48]push

the other in order to save himself, even if it means the certain death of the other. [FN49]Pufendorf also con-

siders the case of a person who is being pursued by an assailant who threatens his life, and whose escape

route is blocked by an innocent bystander. According to Pufendorf, the pursued person must, to the extentpossible, ask the person standing in his way to step aside. If the bystander does not step aside, or if it is not

possible to ask, then pushing him aside becomes permissible. However, when the person blocking the way is

an infant or cripple, there will at least be some excuse for the pursued. [FN50]

In her discussion of the Plank case, Professor Finkelstein[FN51]presents the view of Hecaton, accord-

ing to which the two men must cast lots in order to decide which must relinquish the plank and die so that

the other might live. She also presents Pufendorf's approach, and expresses the opinion that Pufendorf

moved far beyond Hecaton. She adds: Moreover, Pufendorf thinks that even if one has drawn the short

straw in a lottery, one is entitled to resist being pushed off the plank when the other attempts to enforce the

bargain. The plank problem has shifted from a problem of distribution to one of individual right.[FN52]

One might disagree with Professor Finkelstein's characterization of Pufendorf's view. In the case of aboat, Pufendorf requires a lottery, while he does not require a lottery in the Plank case. This distinction can

be explained by the fact that in the case of a boat, there is time to cast lots, while such an opportunity is ab-

sent from the Plank case, where the two do not have any practical ability to hold a lottery. [FN53]If the pos-

sibility existed, it may be assumed that Pufendorf would require a lottery, or at least would not reject the

idea.

The problem with a lottery, from the perspective of modem law, is that it is not binding. The person who

loses the draw can withdraw his consent, since we are concerned with life, which is not a freely dispositive

value.[FN54]A person's agreement to participate in a lottery does not place him under any legal obligation.

From a historical perspective, one can understand a demand for a lottery as a *40matter of justice. In the





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seventeenth century as in the nineteenth century, which witnessed the American Holmes case, and the

English Dudley and Stephens case shipwrecks on the high seas were not uncommon. People were thrown

off lifeboats to prevent sinking, and shipmates were killed and eaten by starving survivors. In order to pre-

vent arbitrariness, and to allow some sense of a fair chance for all the survivors, a lottery was required.[FN55]Holding a lottery came to be viewed as a custom of the sea. [FN56]Holding a lottery is not a con-

dition that derives from the human-survival-instinct rationale that underlies necessity, and even contradicts

that rationale.

As stated, Pufendorf does not grant a person right to act in life-threatening circumstances. Necessityis

not a justifying defence. Justification is recognized only in self-defence against an unlawful assailant. Pufen-

dorf employs such descriptions as lawful defence, and the right to self-defence. [FN57]A situation of

self-defence grants a right, which constitutes a justifying defence. In a situation of self-defence, the assailant

must accept the infringement of his interests, i.e., he enjoys no right to defend himself.[FN58]However, a

situation ofnecessity grants no right, and does not constitute a justifying defence. According to Pufendorf,

there is no offence. In considering a situation of stealing food to prevent starvation, Pufendorf is of the opin-

ion that the owner is not obliged to accept the theft when that theft will leave him starving. [FN59] Onemay, therefore, infer that according to Pufendorf, a victim in a situation ofnecessity such as the person

pushed off the plank need not accept the infringement of his life, and he can defend himself.[FN60]The

situation of necessity creates a general defence, which is neither a justification nor an excuse; an act done

under the circumstances ofnecessityis outside the preview of the law injusticiable. In the necessitysitu-

ation the people may act in a way that rescue the life from the endangering situation; i.e. the people do not

have a right to act, have not to act in such way; most people are likely to act in such way, as a reaction of the

human self-preservation.

Pufendorf's approach is open to criticism. Pufendorf takes the position that when an assailant is pursuing

his victim and threatening his life, the victim must, to the extent possible, ask bystanders to clear the path. If

they do not stand aside, or if the victim lacks the time to ask, he enjoys the necessity defence under whichthe situation does not fall within the preview of law. However, when the people blocking the victim's paths

is an infant or cripple the victim enjoys only an excusing defence. In other words, the victim in the first situ-

ation is better off. Thus, the situation ofnecessity(the conduct that does not fall within the preview of law)

is preferable to that of excuse. This distinction is not clear, particularly when the *41victim in the first situ-

ation lacks the time to ask bystanders unaware of his plight to stand aside, and the underlying principle for

the defences in both cases is the human self-preservation.

II. Fichte's[FN61]approach tonecessityis identical to that of Pufendorf. Fichte does not develop a gen-

eral theory ofnecessity, and does not define its scope. The only situation that Fichte addresses is that of the

Plank of Carneades. Fichte is critical of his predecessors' debate upon the necessity defence: Much pains

have been taken to solve this law-problem, and various solutions have been proposed, simply because the

legal principle involved has not been clearly thought. [FN62]Fichte's approach to necessity is based uponthe theory of ensuring the freedom of the individual in an organized society (subjektsbegrndende Freiheit

des Individuums). According to this theory, a society is a community between free Beings as such,[FN63]

and the purpose of the law, as a tool of society, is to ensure the coexistence of free beings.[FN64]The law

derives its power from society (the individuals), and its purpose is expressed in the establishing of rules of

conduct that ensure the maximum freedom of individuals. When the individual's physical existence is not

ensured, i.e., when it is endangered, the criminal law plays no role and legal rules are of no consequence,

inasmuch as the purpose of the law is expressed in ensuring the freedom and liberty of people whose physic-

al existence is guaranteed. When the first stage the physical existence of the individual is not ensured,

there is no reason to examine the second stage, which is meant to express the guarantee of the freedom and

liberty of the individual whose physical existence is assured. In Fichte's words:





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The function of the Science of Rights is, How may many free beings, as such, exist together? In

thus inquiring after the manner of such a coexistence, the possibility of such coexistence is evidently

presupposed; and hence, when this possibility does not exist, the inquiry after the manner of its exist-

ence is clearly inadmissible.[FN65]Fichte's approach is largely based upon Kant. Kant[FN66]is of the opinion that, in a life-threatening

situation, there is a subjective right to act, i.e., to use force without an objective right. Two men stranded on

the high seas have a subjective right to save their lives. This is essentially a situation in which might make

right. Fichte adopts this view, and holds that civil law does not apply to such a situation. For Fichte, this is

the realm of natural law. A situation of a life-for-a-life returns man to thestatus naturalis. Fichte states:

Hence there exists no positive right to sacrifice another individual to the preservation of my exist-

ence; but neither is it against the conception of rights, that is, it is not in conflict with any positive

right of the other to sacrifice his life to the reservation of my own. In short, the question of right and

not right does not enter here at all. Nature*42has cancelled her permission for bothof us to life; and

the decision is a matter which physical strength or free will may settle. [FN67]

Fichte felt that when the lives of two or more people are endangered, and only one can be saved, a per-son whose life is at risk does not have a right to live. Nature, which gave him life, has taken that right away

in a case of life-endangering situation, and each person can try to save his own life at the expenses of any

other. The decision as to who will be saved is entirely arbitrary and is based upon the concept of survival of

the fittest. In such cases, the law plays no role.

Although the individual has no right to save himself, since nature has also taken away his right to live,

killing another person is not unlawful, since nature has also denied that person a right to life. Therefore, the

act of killing cannot be deemed unlawful. At the same time, the act of killing is not lawful, since no person

has a right to save himself at another's expense. In other words, he has no right to take another person's life.

The situation of a-life-for-a-life is, therefore, in a legal vacuum. According to Fichte, when a person saves

himself, nature gives him back his life.

Fichte distinguishes between law and morality. While the case of a life for a life does not fall within the

compass of the law it cannot be legally evaluated, and the legal prohibition upon killing is inapplicable

he argues that the moral injunction upon killing remains. The moral prohibition stands above the law.

Fichte implores those in mortal danger: Do nothing at all, but leave the matter to God, who can certainly

save you, if it is his will, and to whom you must surrender your life if it is his will.[FN68]

By modern standards, Pufendorf and Fichte's approach[FN69]is not conceptual, and contradicts the

fundamental purpose of the law. Therefore, it cannot form part of the criminal law. A fundamental purpose

of criminal law is to enable free people to live together by safeguarding societal interests. The societal in-

terest protected by a criminal norm is the nucleus of the offence, and the ratio legis for its existence. Defin-

ing a particular phenomenon as a criminal offence means that every act that falls within the scope of the of-fence and threatens the protected interest is, as a rule, prohibited. Only in exceptional circumstances, like

self-defence, is such an act permitted. Defining a particular act as a criminal offence thus sends a public

message as to the proscription of that mode of conduct. It sends a message that one must refrain from similar

acts. Life threatening conduct is generally proscribed. It is permitted only in exceptional circumstances.

*43 When we describe the nature of a particular act as being lawful and non-criminal or unlawful and

criminal, i.e., justified or unjustified in criminal law, we are making a statement about the protection of a so-

cietal interest and, therefore, about the role of criminal law. Thus, for example, conduct performed under cir-

cumstances that constitute self-defence or justifying necessity (where the legal system recognizes that de-

fence) is the conduct that society deems correct and appropriate under those circumstances. It is conduct that

furthers the purpose of the criminal law. Such an attitude toward the conduct encourages others to act in a





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similar way. As opposed to this, unjustified conduct that is excusedor left unpunished constitutes prohibited

conduct that does not serve the interests of the criminal law, and even harms it. Viewing such conduct as

prohibited serves to deter the public from acting in similar ways, by strengthening public confidence in the

effectiveness of criminal norms.[FN70]

Moreover, as already pointed out, it is a function of the criminal law to defend societal values. When we

view a situation of necessity, in which two values compete (in the sense that one must be saves at the ex-

pense of the other), as a situation that stands without the boundaries of law and its values, we allow the law

to retreat and fail to perform its function in protecting societal values. Inapplicability of the law implies that

might mean right, which conflicts with the role of the law in protecting societal values. When a particular

phenomenon is removed from the incidence of the law, it means that the societal values that the law protects

in regard to that phenomenon are no longer protected, and there are no rules of conduct.[FN71]Pufendorf's

and Fichte's theory removes an act of taking a human life from the incidence of the law, so that the law no

longer functions to guarantee protection of human life as a legal interest. Such a position is incorrect. As

long as a person is alive, his life is a legal protected interest. The protection of human life ends only with

death. In a situation ofnecessity, the law must apply.[FN72]

Moreover, under Fichte's return to natural law approach, a person in mortal danger loses his right to

live, the law does not operate, and every one of his protected interests can be infringed. Consider, for ex-

ample, the case of Dudley and Stephens.[FN73]Under the return to natural law approach, the young sail-

or Parker, being in mortal danger, stood outside of the law. By that conception, one might say that his killers

would have been at liberty to beat and sodomize him, even though such acts would not have been relevant to

saving their lives, [FN74] and this position contradicts the role of the social contract in a modern state.

[FN75]

We may, therefore, conclude that the criminal law in general, and the criminal *44offence in particular,

are based upon a concept of completeness and comprehensiveness. Every occurrence of a criminal naturemust be examined in accordance with the principles of the criminal law. No issue that is related to or that af-

fects the criminal law stands outside of its rules or of legal evaluation. An act performed under circum-

stances of excusing necessitycannot be in a legal vacuum or outside the realm of legal examination. It is the

view of the law that any conduct that fulfils the actus reusand themens rea of the definition of the offence

as in the case of an act performed in a situation ofnecessity is conduct that infringes the legally pro-

tected societal interest. In general, such conduct is antisocial and unlawful. In exceptional cases, the conduct

is acceptable by virtue of the existence of a justifying defence. The law addresses the nature of the offence,

i.e., whether or not the act is antisocial. There is no possibility of an act being in a legal vacuum, standing

outside of the realm of law, and neither permissible nor prohibited. The act can be either permitted or pro-

hibited. There is no third alternative.[FN76]

It might be possible to consider the concept of a legal vacuum in regard to an antisocial act one thatinfringes a protected societal interest that is removed from the criminal sphere for reasons of policy, such

as the subsidiary principle of criminal law. For example, in certain legal systems,[FN77]defamatory state-

ments made only in the presence of the victim do not constitute an offence. But even such a conception is

unacceptable. Such a removal of conduct from the incidence of the criminal law does not express an evalu-

ation of the nature of the act. Defamation of the victim alone is a form of antisocial conduct, but it does not

incur criminal liability.

Moreover, if we were to subscribe to the legal-vacuum theory, and accept the idea that conduct can stand

outside the realm of legal incidence, then it would not be possible to require that any person face danger.

Following those conceptions, a person in mortal danger stands outside the law with regard the legal protec-

tion of his life. Therefore, no one can be obliged to face danger. Such an approach contradicts the proper





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10/34

to leave open to him the choice between two kinds of death; either he chooses death in sparing the

other's life, and here it is certain; or he takes the other's life in preserving his own, and subjects him-

self to the rigour of the law; he will do the latter, since perhaps he can escape the consequences by

flight. We have here a case, therefore, where a natural right cannot be applied in statu civili.[FN90]Here, Kant also adds the argument of escape, in the sense of flight, and he might have also added the

failure of the prosecution's case for lack of evidence. While in Metaphysics of Morals, Kant mentions only

the conflict between immediate, *47 certain death and possible death in the future, in this treatise he also

raises the consideration that the actor might succeed in escaping. Moreover, in this work Kant expressly

states that the prohibition upon killing in a life-threatening situation lacks cum effectue.[FN91]In his article

On The Common Saying: This may be true in theory, but it doesn't apply in practice, Kant argues, the

authorities cannot combine a penalty with this prohibition, since this penalty would have to be death. But it

would be a nonsensical law which threatened anyone with death if he did not voluntarily deliver himself up

to death when in dangerous circumstances.[FN92]

It is Kant's view that necessity does not afford the individual an objective right and license to take an-

other life. Necessitymay not be governed by law, but it cannot transform an unlawful act into a lawful one.Therefore, taking the life of another person remains unlawful. However, we cannot demand that a person re-

frain from saving himself, as that would spell certain death. Therefore, we cannot impute criminal liability

(punishment) to the actor. The reason for this is the ineffectiveness of the norm. The norm (the criminal pro-

hibition of causing death) has no deterrent effect when a person is faced with certain death. It should be em-

phasized that the resultant killing constitutes a culpable criminal act, but it is not punishable: the deed of

saving one's life by violence [the violent act of self-preservation] is not to be inculpable (inculpabile) but

only not punishable (impunibile).[FN93]

The question, then, is what is the nature ofnecessityas a criminal defence? What is the underlying sub-

stantive principle, and how can we reconcile necessity with Kant's jurisprudence, and his retributive theory

of punishment?

In the above statement about the double significance of a right,[FN94]Kant posits the situation of the

use of force with the attendant objective right, as opposed to a situation of use of force absent the objective

right. This is, in fact, the sentence that juxtaposes self-defence which Kant views as a sacred right of

man[FN95] withnecessity. The distinction between self-defence and necessityderives from Kant's Doc-

trine of Right. According to Kant, a right is the sum of the conditions under which the choice of one can be

united with the choice of another in accordance with a universal law of freedom. [FN96]

Kant employs the word choice to refer to voluntary action, to which there are two relevant elements:

the capacity and the action. According to Kant: The faculty of desire in accordance with concepts, insofar

as the ground determining it to action lies within itself and not in its object, is called a faculty to do or to re-

frain from doing as one pleases. Insofar as it is joined with one's consciousness of the ability to bring aboutits object by one's action it is called choice. [FN97]In other words, when *48 the action is the product of

choice, in the sense that the actor is responsible for his actions or omissions. [FN98]

Human rights thus underlie legal rules. Law is objective, by nature, and requires that every individual re-

spect and maintain it. The law reflects society's rules of conduct, as formulated by society. The law is the

Magna Charta that ensures the freedom of the individual, and prevents arbitrary infringement of his liberty.

The law recognizes the principle of freedom of action. Every action is permitted, and no action is punished,

unless otherwise expressly stated. An action that is consonant with society's rules, and that does not contra-

dict commonly held rules of the individuals, is lawful, while an action that contradicts one of society's rules

is unlawful. The purpose of the law is to secure human freedoms to prevent the hindering of freedom. It

is intended to prevent a return to the natural state in which individual human beings ... can never be secure





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against violence from one another, since each has its own right to do what seems right and good to it ... [and]

each follows its own judgment. [FN99]Such a state is accompanied by a lack of basic security, and is a

state devoid of justice (status inustitia vacuus).[FN100]

In a natural state, man is in an intolerable situation, as it is difficult if not impossible to resolve conflicts

and problems without an authorized, binding judge. Thus, civil law is the Magna Charta of human freedoms.

[FN101]Every individual must respect the sphere (autonomy and freedoms) of every other. A person is per-

mitted to do whatever is consistent with the law. The law decides what is permitted and what is prohibited.

In other words, the law decides what actions a person may perform. Any action is right if it can coexist

with everyone's freedom in accordance with a universal law, or if on its maxim the freedom of choice of

each can coexist with everyone's freedom in accordance with a universal law. [FN102]From here we de-

rive the categorical imperative to act externally that the free use of your choice can coexist with the free-

dom of everyone in accordance with a universal law. [FN103]

Anyone who does not follow the imperative, and prevents others from realizing their freedom, acts un-

lawfully. As Kant states: If then my action or my condition *49 generally can coexist with the freedom ofeveryone in accordance with a universal law, whoever hinders me in it does me wrong; for this hindrance

(resistance) cannot coexist with freedom in accordance with a universal law.[FN104]When faced with un-

lawful conduct, the victim has a right to self-defence. This right to self-defence is connected with an author-

ization to use coercion. The actor has the right to force the assailant to retreat, i.e., he has the right to deflect

the assault. If a certain use of freedom is itself a hindrance to freedom in accordance with universal laws

(i.e., wrong), coercion that is opposed to this (as a hindering of a hindrance to freedom) is consistent with

freedom in accordance with universal laws, that is, it is right. [FN105]Kant terms this to be an objective

right. It falls within the scope of a right in the narrow sense, which is accompanied by an authorization to

use coercion. This, in essence, is Kant's opening statement that an authorization to use coercion is connec-

ted with any right in narrow sense ( ius strictum).[FN106]

However, in a situation of necessity, the other person does not commit an unlawful act. He is not a

wrongful assailant. Therefore, the actor does not have a right to coerce the other person to return to his own

sphere, i.e., to retreat. Kant fiercely attacks those scholars who grant a person the right to save his own in-

terests at the expense of the interests of a third party. He states that this alleged right is supposed to be an

authorization.[FN107]In other words, this is but a claim to an alleged right, but such a right does not exist.

Moreover, according to Kant, justification of the act i.e., granting the actor a right would constitute an

irreconcilable internal contradiction of the legal system. As stated by Kant: It is evident that were there

such a right the doctrine of right would have to be in contradiction with itself. For the issue here is not that

of a wrongful assailant upon my life whom I forestall by depriving him of his life (ius inculpatae tatelae).

[FN108]

*50 The use of the words it is evident, clearly shows that Kant does not recognize any objective rightin a situation ofnecessity.[FN109]In On Common Saying: This may be true in theory, but does not apply

in practice, Kant argues: Nor can a right ofnecessity(ius in casu necessitates) be invoked here as a means

of removing the barriers which restrict the power of the people; for it is monstrous to suppose that we can

have a right to do wrong in the direst (physical) distress. [FN110]The word monstrous reveals Kant's

contempt for the view that there is an objective right with an authorization of the use of coercion.

Kant continues to attack the approach of those scholars who would grant the actor an objective right a

right with an authorization to use coercion saying: It is clear that this assertion is not to be understood

objectively, in terms of what a law prescribes, but only subjectively, as the sentence [or decision] that would

be given by a court. [FN111]Here, Kant distinguishes between objective right and subjective right. Ac-

cording to Kant, objective right is what the law prescribes. In other words, the actor has an objective right to





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use force only when the law grants that right. That right exists against a wrongful assailant, i.e., in the case

of self-defence.[FN112]As opposed to this, when a person saves himself at the expense of someone who is

not a wrongful assailant, the actor has no objective right. He enjoys only a subjective right granted by the

court. The release from criminal responsibility in the Plank case does not result from the existence of an ob-jective right, but from the situation being subjectively not punishable. It results from a subjective right.

[FN113]Kant further criticizes those who grant an objective right, saying: [T]he jurists take this subjective

not punishable, by a strange confusion, to be objective not punishable. [FN114]An objective right does not

exist because it would mean violence being permitted against someone who has used no violence against

me.[FN115]

Kant rejects the view that self-preservation constitutes a reason to grant a right to save one's life. He ar-

gues that the preservation of life is not the highest duty; one often has to give up life, merely in order to

have lived in an honourable way. There are many cases, and although the jurists say that preservation of life

the highest duty, and that in casu necessitateswe are bound to defend our life, this is not the matter of juris-

prudence at all; the latter has only to decide the rights and wrongs *51 of the duties that we owe to others,

not those that we owe to ourselves.[FN116]The duty to preserve life is an ethical duty. Therefore, Profess-or Finkelstein's criticism of Kant's approach would appear to be incorrect. Finkelstein argues that

presumably a person of goodwill could conform to a penal law with moral content, even if this required

him to act in the face of compelling consideration of self-interest. [FN117]Finkelstein's criticism of Kant's

approach, and the claim that Kant's approach is problematic, is therefore mistaken.

Although, the critique of Professor Finkelstein might be raised from the perspective of modern law,

[FN118]from the principled, doctrinal analysis of the defence of excusing necessity, but not from Kant's

conclusion. In modern law, excusing necessity is a defence that is based upon substantive grounds

(fundamental principles of law), as well as upon considerations of legal policy. The substantive grounds

back of excusingnecessity the mitigation of the anti-social nature of the act, and the two-fold, substantial

lessening of the actor's culpability cannot establish excusing necessityas a defence. The addition of legalpolicy considerations and considerations of justice support the possibility of treating excusingnecessityas a

defence in criminal law.[FN119]Clearly, Kant like any philosopher presents a general theory and ar-

guments, but does not address all of the issues and sub-issues that relate to that theory.[FN120]Moreover,

Kant distinguishes between a person's legal obligations and his ability to meet them, as opposed to the ethic-

al obligations that guide a person's will and belief. [FN121]

According to Kant, the release from criminal liability for unlawful killing is: the deed of violence for

self preservation, which is not punishable; because there can be no penal law....[FN122]In other words, it

is not the deed of violence for self-preservation that grounds a right to a release from criminal liability, but

the ineffectiveness of the norm. The legal norm cannot be enforced upon a person who is in mortal danger.

Therefore, the norm has no deterrent value. There is a psychological dimension at play here. The norm lacks

the power of psychological deterrence over a person in mortal danger.[FN123]The law is not viewed hereas a categorical imperative, in the sense of imposing punishment upon an actor who commits an offence, but

as a law that threatens potential transgressors with punishment. [FN124] The *52 law is impotent in the

Plank case. For Kant, criminal punishment becomes a means for deterrence. [FN125]In other words, the ex-

emption from criminal liability does not derive from the actor's mental state, but from the ineffectiveness of

the norm.

Although Kant treats only of the case of a life for a life in the Plank case, his approach that law does not

govern necessity, and that no necessity can make an unlawful act lawful, allows us to infer a general ap-

proach that rejectsnecessity. According to Kant, there is no (objective) right ofnecessity.[FN126]

A person is under no legal obligation of social solidarity. One is not required to allow an infringement of





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one's fundamental rights. [FN127]The obligation to help one's fellow is a moral obligation that cannot be

enforced by law.[FN128]Kant says that if a person lets his maxim of being unwilling to assist others when

they are in need become public, that is, makes this a universal permissive law, then everyone would likewise

deny him assistance when he himself is in need, or at least would be authorized to deny it. [FN129]Ac-cording to Kant, the law is not intended to enforce morals, nor change human nature. Legal rules (societal

rules) are objective by nature, and are not contingent upon the will of the individual. The law does not re-

treat before criminal behaviour, and every action by individuals is examined and must be examined in

accordance with the rules of law. No conduct can breach the rules prescribed by law and stand outside of the

compass of legal review. Therefore, Bockelmann's [FN130]understanding of Kant, according to which the

case of a life for a life stands outside the realm of the law and legal review, is incorrect and contradicts

Kant's basic view.

*53 One can but express surprise at such a conclusion, inasmuch as Kant expressly states that killing an-

other person in a situation of a life for a life is unlawful (objective unlawful), and that necessity cannot

make an unlawful act lawful, despite the principle that necessity is not governed by the law. [FN131]Ac-

cording to Kant, causing the death of another person in a situation ofnecessityis a breach of law, and fulfilsall of the elements of the offence. The killing is unlawful since necessitydoes not grant an objective right to

take the other's life, and necessity is not a justifying defence. This conclusion derives from the categorical

imperative, which prohibits taking the life of an innocent person. [FN132]

The question is does the absence of subjective punishment mean, or can it be interpreted to be an ex-

cuse? In other words, according to Kant, does necessityin the life-for-a-life situation of the plank constitute

an excusing defence?

At first glance, it would seem that this interpretation can be rejected. One might say that in Kant's time

the law did not distinguish between justifying and excusing defences. Moreover, Kant expressly states that

killing is a culpable criminal offence (strflich, culpabile). Since an excusing defence denies the element ofculpability, [FN133] the element of culpability is not present when there is an excusing defence. In other

words, if it is agreed that the element of culpability is present, and that an excusing defence negates culpab-

ility, then it follows that there is no excusing defence. It follows that when causing death is a culpable un-

lawful act (as Kant holds) i.e., an act that fulfils the elements that constitute the definition of the offence,

it is unlawful, the element of culpability is present, and the conditions ofnecessity are also present ne-

cessity cannot be viewed as an excusing defence. Moreover, Kant clearly states that all of the elements of

the offence are met, and the decision not to impute criminal liability to the actor does not derive from the ab-

sence of a substantive element of the definition of the offence but from the fact that the legal norm cannot be

enforced. The norm lacks deterrent effect. The reason for not imposing criminal liability upon the actor is

not at all related to the substantive elements of the criminal offence. [FN134]

As opposed to this, it can be argued that the concept of culpability was not as clearly developed in Kant'stime as it is today. At most, one could claim that *54culpability was psychological, that is, it was expressed

by the mental element and capacity for legal responsibility. [FN135]In other words, the idea that a subject-

ive excuse could constitute a situation that negates culpability was not yet developed. According to this line

of argument, the fact that Kant expressly says that the element of culpability is present does not negate the

view of modern law that an absence of subjective punishment denotes excuse. Professor Hruschka finds sup-

port for this view in a lecture of Kant's student Friedrich Gentz made in response to Kant's essay On the

Common Saying, (1793), in which Gentz distinguishes between justifications and excuses. Gentz says:

The decision to push an enemy with whom one occupies a narrow plank after shipwreck into the sea rather

than to surely drown, is indeed never justified, but probably will be excused (since in extreme danger one

would have to be heroic to respond to the call of duty). [FN136]





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Gentz employs the terms forgives (nachsieht), and pardonable (verzeihlich), excuse (Entschuldi-

gung) in expressing release from criminal liability. Hruschka is of the opinion that, for Kant, release from

criminal liability is an excuse in modern legal terms. Moreover, Hruschka notes that the concept of excuse

was well known in the 18th century,[FN137]Kant was acquainted with it, used it in his lectures (excusatio),[FN138]and even employed the term forgiveness, in saying that the actor is granted forgiveness.[FN139]

As for the statement that the act is culpable, Hruschka suggests that the term inculpabile be understood to

mean unlawfully.[FN140]In other words, Kant does not say that the act is culpable. Moreover, according

to Kant, self-defence is ius inculpatae tutelage, and is directed against a wrongful assailant. Thus, it would

appear that Kant employs the term inculpataeto mean wrongful, i.e., unlawful, and not inculpable. [FN141]

The problem with this interpretation is that Kant specifically states that the deed of saving one's life by

violence [the deed for self-preservation] is not to be inculpable ( inculpabile) but only not punishable (im-

punibile), and by a strange confusion jurists take this subjective not punishable to be objective not punish-

able.[FN142]Kant*55clearly distinguishes between lawful and culpable. Moreover, according to Kant an

act of self-defence is an act that is objective lawful. It is a right that allows the use of coercive force (right in

the narrow sense). It should be noted that Hruschka, the leading scholar on the subject of the interpretationof Kant's writings onnecessity, recently changed his view. While in his early writings, Hruschka argued that

the Kant's distinction between inculpable (inculpabile) and not punishable (impunibile) was, in modern

legal parlance, a distinction between justification and excuse, of late Hruschka has retreated from that posi-

tion. In an article from 1998 he suggests that, in modern terms, Kant's distinction is between justification

and quasi-excuse.[FN143]In an article from 2000, he argues that there is a technical flaw in a law that

cannot oblige a person to obey it, and therefore the penal norm has no deterrent force. In other words, Kant's

solution is essentially technical, and the result is that the norm has no deterrent force, and therefore, the act-

or is not punished.[FN144]More recently, Hruschka has abandoned that argument in favour of the view that

the release from criminal liability derives from the ineffectiveness of the norm, in the sense that it lacks de-

terrent force.[FN145]

Another argument in favour of viewing Kant's approach to necessityas one of excuse can be found in

his use of the term subjective not punishable. Kant bases the discharge from criminal responsibility on

subjective not punishable, as an expression of personal forgiveness of the actor. Moreover, Kant views the

situation as a request put before the judge. He says that the assertional right is only to be understood subject-

ively, as the sentence that would be given by a court. According to Gentz: However, that which mankind

forgives can never be a rule in a system of law. [FN146]In other words, the discharge of the actor from

criminal responsibility is not a conduct rule that guides a person's conduct, but a decision rule, which mod-

ern law views as an excusing defence.[FN147]

As opposed to this interpretation, one might point out that Kant says that the reason for the exemption

from criminal responsibility is that there can be no penal law....[FN148]The prohibition upon killing has

no deterrent force. The norm is ineffective. The result is subjective not punishable. Kant points out that theexemption from criminal liability derives from the fact that the law lacks the technical ability cum effectu

to enforce itself. The exemption is not related to any evaluation of the act or of the actor. The prohibition

simply lacks deterrent force.[FN149]As Kper states, the release from criminal responsibility does not de-

rive from consideration for the actor's psychological state as a result of the mortal threat, and the term *56

subjectively not punishable does not relate to the actor's psychological state, but is a term that stands in con-

trast to objectively lawful. The term objectively lawful refers to what a law prescribes, which is rational or

natural law, and stands in contrast to subjectively not punishable by the court, which is also a positive right.

In other words, the court will release the actor from criminal responsibility because of the ineffectiveness of

the norm.[FN150]

In summary, Kant's view is that in life-and-death situations, under conditions ofnecessitythe taking of





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another person's life constitutes an act that fulfils all of the elements of the offence. However, the actor can-

not be held criminally responsible because the certain death that awaits him in the case of inaction is not

worse than the threat of uncertain death in the case of taking the other's life. Although Kant treats only of the

case of a life for a life, his theory, or the spirit of his theory, allows us to argue that necessityas a defencethat negates criminal punishment is appropriate when the threatened harm to the actor in the case of injuring

legally protected interests does not outweigh the harm that awaits him if he refrains from harming those in-

terests, as would be he case, for example, in a situation of life versus other protected values, like physical in-

tegrity, health, liberty, or property.[FN151]

According to Kant legal rules are objective and coercive. Punishment results from the perpetration of an

offence. In a case of a life for a life, the actor fulfils all of the elements of the offence, and therefore, in ac-

cordance with the Kantian theory of punishment, he must be held criminally responsible and punished.

The Kantian Theory of Punishment:[FN152]It is no secret that Kant takes a retributive view of punish-

ment, and his theory of punishment is based primarily upon retribution (ius talionis). Criminal punishment is

retribution for committing an offence. It is the natural result of a crime. The Kantian theory of punishmenttreats of the question of whether criminal responsibility (punishment) can be assigned to the actor, i.e., is

criminal responsibility justified, necessary, or even possible.

*57 According to retributive theory (ius talionis), criminal responsibility must be imputed to a person

who commits an offence. Because the actor in the Plank case fulfils all of the elements of the offence, in-

cluding that of culpability, it may be said that retributive theory requires that the actor be deemed criminally

liable. The justification for imposing criminal punishment is the commission of an offence: [P]unishment

by a court (poena forensis) ... be inflicted upon criminal only because he has committed a crime.[FN153]

The argument that in our situation there is no point to punishment, since any reasonable person would have

acted in the same manner as the actor, i.e., the argument that imposing punishment upon the actor will not

yield general deterrence (positive and negative prevention), nor can it deter the actor, is unacceptable inas-much as Kant expressly rejects such utilitarian arguments because: Punishment by a court ... can never be

inflicted merely as a means to promote some other good for the criminal himself or for civil society .... He

must previously have been found punishable before any thought can be given to drawing from his punish-

ment something of use for himself or his fellow citizens. The law of punishment is a categorical imperative.

[FN154]Hence its justice does not follow, if it is inflicted to improve the criminal, or as an example to oth-

ers. This would simply have to do with its usefulness, and then it would be merely a means to that intent, for

example, if somebody is flogged, whether guilty or not, in order to frighten people by his outcry, and create

an impression[FN155]

The law views the person as an end rather than as a means. Since utilitarianism in the foregoing sense

treats man as a means, the approach is unacceptable. The categorical imperative is, therefore: Always act so

that you treat humanity, whether in your own person or in another, as an end, and never merely as a means.[FN156]

According to this approach, criminal punishment has no purpose other than punishment itself. Punish-

ment is an end in itself, and not a means for achieving some particular objective or purpose. It can, there-

fore, be argued that the Kantian theory of retribution requires the imposition of criminal liability, i.e., pun-

ishment.[FN157]

*58 However, in the instant case (causing death in a situation of mortal danger), Kant treats only of the

stage of the threat of punishment. Kant's retributive theory of punishment treats only of the imposition of

punishment, and does not treat of the threat of punishment.[FN158]Kant's retributive theory does not treat

of the question of whether it is possible to threaten the imposition of punishment upon offenders. In the





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Plank case, Kant says that the purpose of threatening punishment is expressed in the prevention of the

breach of norms, i.e., the prevention of the perpetration of criminal offences. This function cannot be ful-

filled in a life-endangering situation since the threat of punishment cannot outweigh what awaits the actor if

he should refrain from acting. The threat of an uncertain evil is not worse than the certain realization of thatsame evil. When it is not possible to threaten the actor with criminal liability for an act, criminal liability

cannot be imposed upon the actor. The ineluctable result is that the act is not punishable. The conclusion is

that the reason for not imposing criminal liability upon the actor has nothing to do with the elements of the

offence or with Kant's retributive theory of punishment. Therefore, the claim[FN159]that Kant's approach

contradicts the Kantian theory of punishment is incorrect.[FN160]The reason for the exemption from crim-

inal liability derives from the practical impossibility of enforcing the law.

Two possibilities present themselves to explain the conclusion that the absence of punishment results

from the ineffectiveness of the norm as a deterrent:

According to the first possible interpretation,[FN161]the reason for not punishing the actor who perpet-

rates a criminal offence is technical. The reason is that a necessity situation is a subjectively practical im-possibility (Der casus necessitates ist ... eine psychische (subjektiv praktische) Unmglichkeit). In a situ-

ation of immediate, certain threat to life, no law can obligate a person to refrain from saving his own life,

because there can be no law that might enjoin omission of the action cum effectu.[FN162]In other words,

it is impossible for the actor to obey the law. There is a technical failure of the law that cannot force a per-

son to obey, and therefore the norm is without deterrent effect. Kant's solution is essentially technical, and

the result is that the norm is ineffective as a deterrent. Therefore, the actor is exempt form criminal punish-

ment.[FN163]

*59 According to this view, the actor in the Plank case fulfils all of the elements of the offence, and al-

though the retributive theory of punishment requires that he be punished, a technical flaw in the law pre-

cludes punishment. The criminal law fails in this case in regard to punishment. Under this approach, Kant'ssolution is no solution (Nichtlsung) or a failed solution (verunglckt).[FN164]The criminal law must

provide general rules of conduct, with all the related defences, and may not and cannot treat of tech-

nical reasons. The technical reason is nothing but a legal fiction that has no place in criminal law. According

to this interpretation, the Kantian theory of punishment is purely retributive. Kant is an orthodox retributivist

who rejects general deterrence in criminal law, even in terms of a threat of punishment for potential offend-

ers.

The second possibility[FN165]is that the threat of imposing punishment upon potential offenders is not

part of Kant's theory of punishment, and that, for Kant, the threat of punishment comprises elements of gen-

eral deterrence.[FN166]In other words, the subject of the justification of imposing punishment upon an act-

or who perpetrates an offence is based upon Kant's retributive theory of punishment, and the threat of im-

posing punishment upon a potential actor is based upon general deterrence. Support for this view can befound in the following paragraphs, in which Kant refers to general deterrence as part of the role of the crim-

inal norm, or at least does not reject it. [FN167]Kant writes:

Punishment in general is the physical evil visited upon a person for moral evil. All punishments

are either deterrent or retributive. Deterrent punishments are those which are pronounced merely to

ensure that the evil shall not occur. Retributive punishments, however, are those pronounced because

the evil has occurred. Punishments are therefore a means of either preventing the evil or chastising.

All punishments by authority are deterrent, either to deter the transgressor himself, or to warn others

by his example. But the punishment of a being who chastises actions in accordance with morality is

retributive. All punishments belong either to the justice or the prudence of the lawgiver. The first are

moral, the second pragmatic punishments. Moral punishments *60 are imposed because a sin has been





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committed; they are consectaria of a moral transgression. Pragmatic punishments are imposed so that

sin shall not be committed; they are means of preventing crime. [FN168]

According to this interpretation, general deterrence refers to the threat of imposing criminal punishment,

whereas retribution refers to imposing punishment upon an actor who has breached a norm. This interpreta-tion does not contradict Kant's retributive approach. Kant does not rule out the theory of general deterrence

by means of (the threat of) punishment. This approach does not contradict Kant's approach to human dignity

in the sense that man is an end in himself since it speaks only of a threat of imposing punishment upon

a potential actor, i.e., it warns the potential offender, but does not punish him in order to deter others. This

interpretation of deterrence is, therefore, different from the concept of general deterrence in Bentham's utilit-

arian theory of punishment. The threat of imposing punishment upon an actor the deterrent force and ef-

fectiveness of a norm does not treat a person as a means.

Professor Finkelstein is critical of Kant's approach to necessity. She is of the opinion that Kant's argu-

ment that necessitous killing cannot be deterred is a dubious one. There are punishments worse than death,

and one need only threaten to inflict them with sufficient certainty to induce compliance in a rational agent.

[FN169]This criticism might be raised against necessity as a defence in modern law, but cannot be raisedagainst Kantian theory of punishment. According to Kant's theory of retributive punishment, punishment is

retribution for the perpetration of an offence. The severity of the penalty is proportionate to the severity of

the offence and the actor's culpability. Retribution is a measure of just punishment for the actor. Therefore,

retributive theory of punishment does not permit and, indeed, prohibits the imposition of punishment

that exceeds the appropriate severity (the just punishment) in accordance with retributive theory. [FN170]

Indeed, Finkelstein's criticism is somewhat absurd. In the Plank case, we are concerned with an actor

who is in mortal danger who saves his life by means of killing another person. According to Finkelstein, in

such a case it is possible to impose a penalty more severe than death which retributive theory views as the

appropriate penalty for the actor for taking a life. Since criminal punishment is retribution, it follows that for

Finkelstein who would impose a more severe penalty than death killing a person in order to save an-other is a more severe phenomenon,*61 i.e., worse regarding the wrongdoing of the act and the culpability

of the actor, than regular murder, i.e., the killing of a person without the simultaneous rescue of another.

That is an absurd result. Moreover, the Kantian theory of punishment forbids imposing punishment that in-

fringes human dignity, even if the perpetrator acts cruelly, or brutally, or tortures his victim.[FN171]

Kant is aware of the possibility of raising such objections as Finkelstein's, and answers them in line with

his thinking, stating:

[T]he law of retribution (ius talionis) ... can specify definitely the quality and the quantity of pun-

ishment; all other principles are fluctuating and unsuited for a sentence of pure and strict justice be-

cause extraneous consideration are mixed into them ... If, however, he has committed murder he must

die. Here there is no substitute that will satisfy justice. There is no similarity between life, howeverwretched it may be, and death, hence no likeness between the crime and the retribution unless death is

judicially carried out upon the wrongdoer, although it must still be freed from any mistreatment that

could make the humanity in the person suffering it into something abominable. [FN172]

Professor Finkelstein continues her criticism of Kant's approach by arguing that his claim that un-

deterrable conduct ought not to be punished is problematic. Why should the State fail to punish an individual

to the full extent he deserves just because his evil conduct was inevitable, given his strong, self-interested

motivation? That seems an unduly utilitarian consideration for a retributive theory of punishment.[FN173]

Professor Chapman is of the opinion that the argument provided for excuses by Bentham and Kant is sur-

prisingly similar.[FN174]But the two approaches differ in that according to Bentham the conduct motiv-

ated by necessity is pointless because it is undeterrable, Kant's argument is that because the legal order is

achieved in an essentially coercive way, and is it to be contrasted in this respect with the autonomy that





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comes by way of free, moral action, then the law qua law cannot operate on someone in necessitous circum-

stances because such a person cannot coerced by law at all.[FN175]Chapman goes on to say: Hence pun-

ishment is without its point. But this is true for any accused who has committed any crime no matter what

the particular circumstances (save possibly those where the punishment was not made public in advance).Thus, the argument of pointless punishment, when it focuses too much on the specific accused, has the effect

of making all punishment equally pointless.[FN176]

These criticisms are to be rejected by the Kantian theory of punishment. As earlier stated, Kant distin-

guishes between the threat to impose punishment, which *62comprises utilitarian elements, and the imposi-

tion of a purely retributive punishment. Therefore, there is no contradiction between Kant's approach to ne-

cessity, which is based upon utilitarianism, and his retributive punishment theory.[FN177]Moreover, Kant

does not base the exemption from responsibility upon the actor's mental state. Although one can discern a

psychological element in Kant's approach,[FN178]the reason for exemption from criminal responsibility in

the Plank case is that the norm has no coercive force.[FN179]Additionally, if objections are raised against

modern law, those objections contradict the concept of culpability. Culpability is a person's mental ability to

act in accordance with the law, and expresses the measure of public reproach appropriate to the actor's anti-social conduct. The more reprehensible the actor's conduct the greater his culpability. The more deplorable

the actor's motive, e.g. racism, the more severe his culpability.[FN180]In the Plank case, we are faced with

the saving of a life that is in mortal danger. Saving a human life is a good motive. Certainly, it cannot ag-

gravate the actor's culpability. Therefore, a person in mortal danger who acts to avert that danger acts in cir-

cumstances that mitigate culpability.[FN181]

For Kant, the scope ofnecessityis quite limited. Kant treats of certain danger to life that is immediate or

very near the case of drowning. He does not consider mortal threats that are uncertain or that are not

proximate, but which also place a person under not inconsiderable pressure to avert them. He also does not

treat of serious threats of grievous bodily harm or of severe impairment of health. It can be argued that when

a person is faced with such threats, and inflicting property damage can avert them, Kant's theory grants a de-fence. This is because Kant views punishment as retribution for antisocial conduct that is accompanied by

culpability, and the punishment for intentionally damaging property is not more severe than the realization

of the threatened serious harm to life or person. In other words, the evil threatening the actor in the case of

inaction is greater than the evil that awaits him if he chooses to act. Therefore, prohibiting the destruction of

property would be ineffective. When an actor finds himself in a situation that threatens severe harm to his

person or health, or uncertain threat to life, and if that threat can be averted by inflicting severe harm upon

the person or the health of another, an actor will choose to avert the threat, since the punishment for inflict-

ing grievous bodily harm may be severe, but from the perspective of the actor, it is not worse than perman-

ent, severe physical handicap or death. According to this assumption, the actor enjoys a defence. The argu-

ment that in such cases the actor should be held criminally liable in order to deter the public cannot stand,

because Kant expressly rejects it. Kant is interested only in imposing criminal punishment upon the actor.But it is questionable whether Kant would accept these conclusions. It may be assumed that Kant treats

of the case of immediate danger to life because death (the *63result of the realization of the threat) induces

a level of fear that is not shared by any other social phenomenon. The case of a threat of certain death is ex-

ceptional, and cannot serve to embody a general approach.

As earlier noted, Kant's approach exerted significant influence upon the development of the defence of

excusingnecessityin criminal law. It is argued that Kant's approach is not dogmatic. Criminal law must de-

velop fundamental principles by which to treat of criminal phenomena. Technical solutions are nothing but

fictions that have no place in criminal law. Excusing necessity should be defined as a defence in criminal

law. Additionally, Kant views the ineffectiveness of the norm as a reason for not imposing criminal respons-

ibility upon the actor. Kant argues that the threat of future evil is no worse than the threat of the certain real-





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ization of the same threat. This argument can be said to comprise psychological elements, in that it is the

psychological state of the actor that is the deciding factor. Following this line of reasoning, there need not be

a mortal threat. It is sufficient that the actor imagine that there is threat of certain death, even if that belief is

unreasonable. Therefore, when modern law demands an objective test, or a modified objective-subjectivetest to examine the existence of a threat, the psychological state of the actor is not the only deciding factor.

In terms of the desired law, the appropriate approach would be to recognize excusing necessitybased upon

the diminished anti-social nature of the act, and the substantial, double mitigation of culpability (as substant-

ive rationales in criminal law), and upon negative deterrence (individual and general) as a consideration of

the theory of punishment that constitutes an aspect of justice (as an aspect of legal policy considerations).

[FN182]

IV. As early as 1668, Pufendorf expressed the view that when an actor innocently finds himself in a situ-

ation that endangers his life, or threatens grievous harm, and the only means available for averting the threat

involves infringing the rights including taking the life of an innocent third party, the actor is not crim-

inally liable. The rationale for this is the human survival instinct, in the sense that a person cannot be re-

quired to face the danger. Feuerbach developed this reasoning into the theory of psychological coercion,[FN183]which influenced the development of the doctrine of psychological pressure that formed the basis

for recognizing excusing necessityin sec. 35 of the German Criminal Code,[FN184]as well as the basis for

the doctrine *64 of culpability.[FN185]

Feuerbach attempts to treat of excusing necessityas part of his overall treatment of the elements of the

offence, within the general framework of the offence. Feuerbach rejects the theories developed by Pufen-

dorf, Kant, and Fichte, which does not distinguish the element of the offence that is not realized in a case of

necessity, and which fails to develop a theory or provide a solution that substantively addresses the structure

of the offence and the place of necessity within that structure. In Feuerbach's writings one finds the begin-

nings of a general doctrinal approach to criminal law, i.e., a fundamental examination of the offence, a

definition of its elements and structure, and the place of defences to criminality within that structure.[FN186]

Like his predecessors, Feuerbach considers the situation of a threat to life, or a threat of grievous bodily

harm. He is of the opinion thatnecessityis based upon the doctrine of the human survival instinct in natural

law. According to Feuerbach, law is psychological coercion, and its role is to deter people from committing

offences. In a situation of threat to life or threat of grievous bodily harm, a person cannot be required to face

the danger. Facing the danger would mean death or severe injury. The reason for exempting the actor from

criminal responsibility is premised upon the extreme psychological state of the actor. In such a situation, the

actor lacks the ability to act in accordance with the requirements of law, i.e., to respect society's rules, and

therefore is not responsible (Unzurechnungsfhig).[FN187]

This is the conclusion to be deduced from Feuerbach's theory of punishment, according to which the pur-pose of punishment is to prevent the infliction of social harm, i.e., to prevent infringement of societal values

by deterring the actor and the general public. [FN188]Here, Feuerbach relies upon Kant's view that the pro-

hibition upon killing lacks coercive force in a life-and-death situation, [FN189]and he takes the view that

the actor is therefore not responsible. When an actor cannot be prevented from infringing society's protected

interests, society's rules are not directed at him, and the actor is not responsible for his actions.[FN190]Ac-

cording to Feuerbach, legal capacity for criminal responsibility (Zurechnungsfhigkeit) and deterrence are

identical.

*65 Feuerbach's approach[FN191]contributed to the development of the psychological coercion theory

that grounds the necessity defence in German law. While Feuerbach believes that the actor is not respons-

ible in the sense that, due to his extreme psychological state, he lacks the capacity for criminal responsibility





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(unzurechnungsfhig) in a life-and-death situation, others argue that an actor in circumstances of necessity

has criminal capacity (zurechsnungsfhig), but is not culpable. The actor is in a mental state in which he

lacks psychological capability. This is how the psychological coercion theory that supported the enactment

of the necessity defence developed. Feuerbach, relying on Kant, made a significant contribution to the de-velopment of the necessitydefence.[FN192]

In modern law, excusing necessity is not based solely upon the

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Westlaw Document 06-04-20