On the necessity defense in a democratic welfare state: leaving Pandora’s box ajar

Abstract

The necessity defense is barely accepted in contemporary Western case law. The courts, relying on the opinion held by the majority of legal scholars, have reduced its margin of application to practically zero, since in the framework of contemporary welfare states, there is almost always a “legal alternative.” The needy person who acts on their own behalf, regardless of whether they save an interest higher than the one they injure, 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 legislature nor make a mockery of established procedural channels.