31 Excused Necessity in Western Legal Philosophy

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19 Can. J.L. & Juris. 31
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Canadian Journal of Law and Jurisprudence

January, 2006
Editors: Richard Bronaugh & Peter Barton
*31 Excused Necessity in 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 creating the danger is a situation that has fascinated the legal world since antiquity. A well-known case in western 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 support 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 of necessity that affords an excusing defence. An actor who saves his own life at the expense of
another enjoys the defence of excusing necessity, and will not be punished for his conduct. [FN1] Other legal systems view the situation as one that affords a defence that significantly mitigates, and that may completely 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 approaches, some legal systems grant no defence whatsoever. The actor, at least in principle, bears full criminal 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 authorship 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 necessity is a good defence. [FN8]
The questions posed by the Plank of Carneades, and situations like it, have served as the subject of philosophical debate throughout the world, and throughout the ages. Moreover, the plank case is the basis of a
2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
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dramatic poem. [FN9]

In Roman times, situations that afforded a defence of necessity were 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 necessity is not subject to law quod
non est licitum in lege, necessitas facit licitum, necessitas non habit legem. However, these statements remain 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 prohibited theft, including the theft of food. Each person must bear *33 his own burden in life, and may not transfer 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 stealing 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 the
threat. 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 instinct and, therefore, the necessity defence itself applied only in regard to property damage. The necessity defence could not be called upon to justify the infringement of a legally protected interest if that interest were life or physical integrity. This conclusion follows ineluctably from St. Thomas Aquinas approach, 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 of necessity. [FN14] Some scholars, however, recognized the necessity defence 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 influenced the philosophers who followed him. [FN17] Kant is the philosopher who exerted the greatest *34 influence upon German law. [FN18] The German legal system was the first to address this subject to any significant 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 German
Criminal 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 dilemma is no longer limited to scholars of the criminal law but has come to the attention of private law scholars, 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 discussing 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 discuss 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, Pufendorf distinguishes between a lawful act performed under circumstances of self-defence and an act that warrants 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 punishment 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 particular act as one that is antisocial and excused is merely a recommendation lacking practical effect. The protection afforded to the interest infringed by the antisocial but excused conduct 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 acceptable, or antisocial but legally excused. [FN29]
Although no criminal penalty is imposed upon an excused actor, 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 necessity, 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 implication 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 acceptability. 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 opposed to this, an antisocial act that is merely excused, as in the case of a life for a life in a situation of necessity, 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 of excused 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 oneself 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 responsibility, and cannot employ such terms as does not bear criminal responsibility. The law cannot define
necessity 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 socially 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 interests 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 necessity. 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 criminal law (the theory of the criminal offence), and on the general part of jurisprudence.
*37 In 1668, Pufendorf [FN35] became the philosopher to define necessity as a general doctrine of criminal law that applies to all criminal offences, and which is part of the general part of the criminal law.
[FN36] Up until then, necessity was treated casuistically, [FN37] and only applied to a small number of offences. Pufendorf became interested in the case of an actor who, through no fault of his own, finds himself
in 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 of necessity, 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 of necessity is human self-preservation imbecillitas humana. [FN40] In situations that threaten life, severe physical harm, or impairment of health a person cannot be obligated to refrain 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 of necessity 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 of necessity. [FN42]
Necessity knows no law is the rule according to Pufendorf. In a case of necessity, the law does not impose 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 selfpreservation that is not obliged to respect criminal norms. Thus Pufendorf states: For this reason, necessity it is said, knows no laws'.
Another question that interested Pufendorf was the nature of the necessity defence. Is necessity a justifying defence that grants the actor a right? Is it an excusing defence that negates culpability? Or is it a defence 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 of ne-
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cessity there is no offence. Thus, he rejected the view of the Dutch philosopher Antonius Matthus, according to which necessity is but a defence to punishment for an offence that has been committed. [FN43] In a
case of necessity, there is simply no offence.
In stating that the law does not govern necessity, 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 Pufendorf, penal norms are instructions to do or not to do. They are intended to instruct individuals to adopt certain 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 of necessity for 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 concern 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 the
American 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 considers 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 extent
possible, 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, according 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 a
boat, 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 absent from the Plank case, where the two do not have any practical ability to hold a lottery. [FN53] If the possibility 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 *40 matter 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 prevent 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 condition 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. Necessity is
not a justifying defence. Justification is recognized only in self-defence against an unlawful assailant. Pufendorf 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 of necessity 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 opinion that the owner is not obliged to accept the theft when that theft will leave him starving. [FN59] One
may, therefore, infer that according to Pufendorf, a victim in a situation of necessity 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 of necessity is outside the preview of the law injusticiable. In the necessity situation 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 which
the 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 situation is better off. Thus, the situation of necessity (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 *41 victim in the first situation 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 to necessity is identical to that of Pufendorf. Fichte does not develop a general theory of necessity, 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 upon
the 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 physical 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 existence 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 the status naturalis. Fichte states:
Hence there exists no positive right to sacrifice another individual to the preservation of my existence; 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 *42 has cancelled her permission for both of 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 person 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 interest protected by a criminal norm is the nucleus of the offence, and the ratio legis for its existence. Defining a particular phenomenon as a criminal offence means that every act that falls within the scope of the offence 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 societal interest and, therefore, about the role of criminal law. Thus, for example, conduct performed under circumstances that constitute self-defence or justifying necessity (where the legal system recognizes that defence) 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 excused or 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 expense 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 of necessity, 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 example, the case of Dudley and Stephens. [FN73] Under the return to natural law approach, the young sailor 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 *44 offence in particular,
are based upon a concept of completeness and comprehensiveness. Every occurrence of a criminal nature
must be examined in accordance with the principles of the criminal law. No issue that is related to or that affects the criminal law stands outside of its rules or of legal evaluation. An act performed under circumstances of excusing necessity cannot 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 reus and the mens rea of the definition of the offence
as in the case of an act performed in a situation of necessity is conduct that infringes the legally protected 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 prohibited. 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 that
infringes 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 statements 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 evaluation 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 protection of his life. Therefore, no one can be obliged to face danger. Such an approach contradicts the proper
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rule that requires that certain people, by reason of law or contract, like police, soldiers, and fire fighters, be
under an obligation to face danger, including mortal danger (as opposed to certain death), and that they cannot shirk that responsibility. [FN78]
Fichte's approach is wrong from the perspective of the role of criminal law. The law is intended to make
it possible for free people to live together harmoniously. Therefore, one can speak of a return to a state of
nature in which there are no rules of conduct only when the common existence of the entire society, or the
majority *45 of society, is under threat of destruction. From this perspective, one cannot speak of a return to
natural law when one or more people are in mortal danger. Such a situation does not present a threat to the
life of society. [FN79]
The conclusion is that modern law does not recognize any phenomenon like a legal vacuum, or any act
that stands outside the realm of legal evaluation.
III. Kant was acquainted with the theories of Cicero, Pufendorf, Thomas Aquinas, and others who addressed the issue. Like them, Kant considered necessity (necessitas) in relation to the Plank case. It should
be noted from the outset that Kant's approach on necessity is the source of considerable controversy, and is
the subject of different, at times unusual, interpretations. Moreover, some have expressed the opinion that
Kant's approach on necessity diametrically contradicts the Kantian theory of punishment. [FN80] Nevertheless, it is considered to be one of the most interesting theories in the field of legal research, and I view it as
one of the most important theories of the greatest of philosophers.
Kant discusses necessity in his book The Metaphysics of Morals, [FN81] in the Appendix (Anhang) to
the chapter Introduction to the Doctrine of Right (Einleitung in die Rechtslehre), [FN82] in which he considers the Plank case. Kant's starting point is the theory of the Equivocal Right (ius aequivocum, das
zweideutige Recht), which refers to the right in narrow sense (ius strictum) and the right in a wider sense (ius
latum). The distinction is as follows: An authorization to use coercion is connected with any right in the
narrow sense (ius strictum). But people also think of a right in a wider sense (ius latium), in which there is
no law by which an authorization to use coercion can be determined. [FN83] In other words, the right in the
narrow sense (ius strictum) refers to a right that gives an actor an authorization to employ coercive force (
Zwangsbefugnis). Kant calls this the true right. The actor has a right to act and inflict harm. As opposed to
this, there is a right in the broader sense (ius latum), under which the actor does not have the right to use
force. In other words, the actor exerts force (Zwang), but does not have permission to do so.
The law of necessity (ius necessitas) falls within the scope of right in the broader sense. Kant rejects the
approach that grants the mortally threatened individual a right and legal license to save his own life at the
expense of such interests of others as property. [FN84] Kant took the view: Necessity has no law (necessitas non habet legem). Yet there could be no necessity that would make what is unlawful conform *46 with
law. [FN85] Killing another person in a situation of necessity is objectively unlawful. However, by virtue
of the human survival doctrine of natural law, a person cannot be held criminally responsible, inasmuch as
there can [FN86] be no penal law that would assign the death penalty to someone in a shipwreck who, in
order to save his own life, shoves another, whose life is equally in danger, off a plank on which he had saved
himself. For the punishment threatened by the law could not be greater than loss of his own life. A penal law
of this sort could not have the effect intended, since a threat of an evil [FN87] that is still uncertain (death by
a judicial verdict) cannot outweigh the fear of an evil that is certain (drowning). [FN88] [FN89]
In his lectures, Kant expands upon the reason why an actor would choose to kill another person:
[B]ecause there can be no law that might enjoin omission of the action cum effectu; for to punish
with death a man who can save his own life no otherwise than by the loss of the other's life, is merely
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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 himself 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 another life. Necessity may 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 refrain 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 prohibition of causing death) has no deterrent effect when a person is faced with certain death. It should be emphasized 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 of necessity as a criminal defence? What is the underlying substantive 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] with necessity. The distinction between self-defence and necessity derives from Kant's Doctrine 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 refrain from doing as one pleases. Insofar as it is joined with one's consciousness of the ability to bring about
its 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 respect 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 contradict 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 permitted 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 derive the categorical imperative to act externally that the free use of your choice can coexist with the freedom of everyone in accordance with a universal law. [FN103]
Anyone who does not follow the imperative, and prevents others from realizing their freedom, acts unlawfully. As Kant states: If then my action or my condition *49 generally can coexist with the freedom of
everyone 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 unlawful conduct, the victim has a right to self-defence. This right to self-defence is connected with an authorization 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 connected 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 interests 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 right
in a situation of necessity. [FN109] In On Common Saying: This may be true in theory, but does not apply
in practice, Kant argues: Nor can a right of necessity (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. According 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 objective 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 argues 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 necessitates we are bound to defend our life, this is not the matter of jurisprudence 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, Professor 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 excusing necessity the mitigation of the anti-social nature of the act, and the two-fold, substantial
lessening of the actor's culpability cannot establish excusing necessity as a defence. The addition of legal
policy considerations and considerations of justice support the possibility of treating excusing necessity as a
defence in criminal law. [FN119] Clearly, Kant like any philosopher presents a general theory and arguments, 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 ethical 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 here
as 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 exemption 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 approach that rejects necessity. According to Kant, there is no (objective) right of necessity. [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] According 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 retreat 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 another 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] According to Kant, causing the death of another person in a situation of necessity is a breach of law, and fulfils
all of the elements of the offence. The killing is unlawful since necessity does 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 excuse? In other words, according to Kant, does necessity in 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 of
culpability, [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 culpability, then it follows that there is no excusing defence. It follows that when causing death is a culpable unlawful 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 of necessity are also present necessity 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 absence 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's
time as it is today. At most, one could claim that *54 culpability was psychological, that is, it was expressed
by the mental element and capacity for legal responsibility. [FN135] In other words, the idea that a subjective 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 support 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 (Entschuldigung) 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 inculpatae to 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 (impunibile), and by a strange confusion jurists take this subjective not punishable to be objective not punishable. [FN142] Kant *55 clearly 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 interpretation
of Kant's writings on necessity, 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 position. 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 actor 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 deterrent force. [FN145]
Another argument in favour of viewing Kant's approach to necessity as 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 subjectively, 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 modern 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 the
exemption 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 derive 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 contrast 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 of necessity the 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 cannot 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 necessity as a defence
that 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 interests, as would be he case, for example, in a situation of life versus other protected values, like physical integrity, 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 accordance 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 punishment, 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 punishment
treats 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, including 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 inasmuch 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 punishment 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 others. 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. Punishment is an end in itself, and not a means for achieving some particular objective or purpose. It can, therefore, be argued that the Kantian theory of retribution requires the imposition of criminal liability, i.e., punishment. [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 fulfilled 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 that
same 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 criminal 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 perpetrates a criminal offence is technical. The reason is that a necessity situation is a subjectively practical impossibility (Der casus necessitates ist ... eine psychische (subjektiv praktische) Unmglichkeit). In a situation 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 person 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 punishment. [FN163]
*59 According to this view, the actor in the Plank case fulfils all of the elements of the offence, and although the retributive theory of punishment requires that he be punished, a technical flaw in the law precludes punishment. The criminal law fails in this case in regard to punishment. Under this approach, Kant's
solution 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 technical 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 offenders.
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 general deterrence. [FN166] In other words, the subject of the justification of imposing punishment upon an actor who perpetrates an offence is based upon Kant's retributive theory of punishment, and the threat of imposing punishment upon a potential actor is based upon general deterrence. Support for this view can be
found in the following paragraphs, in which Kant refers to general deterrence as part of the role of the criminal 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 interpretation 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 utilitarian theory of punishment. The threat of imposing punishment upon an actor the deterrent force and effectiveness 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 argument 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 raised
against 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 another 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 infringes 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 punishment; all other principles are fluctuating and unsuited for a sentence of pure and strict justice because 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, however
wretched 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 undeterrable 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 surprisingly similar. [FN174] But the two approaches differ in that according to Bentham the conduct motivated 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 circumstances because such a person cannot coerced by law at all. [FN175] Chapman goes on to say: Hence punishment 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 distinguishes between the threat to impose punishment, which *62 comprises utilitarian elements, and the imposition of a purely retributive punishment. Therefore, there is no contradiction between Kant's approach to necessity, 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 antisocial 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 aggravate the actor's culpability. Therefore, a person in mortal danger who acts to avert that danger acts in circumstances that mitigate culpability. [FN181]
For Kant, the scope of necessity is 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 defence. 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 inflicting grievous bodily harm may be severe, but from the perspective of the actor, it is not worse than permanent, severe physical handicap or death. According to this assumption, the actor enjoys a defence. The argument 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 *63 result 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 exceptional, and cannot serve to embody a general approach.
As earlier noted, Kant's approach exerted significant influence upon the development of the defence of
excusing necessity in criminal law. It is argued that Kant's approach is not dogmatic. Criminal law must develop 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 responsibility 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-subjective
test 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 necessity based upon
the diminished anti-social nature of the act, and the substantial, double mitigation of culpability (as substantive 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 situation 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 criminally liable. The rationale for this is the human survival instinct, in the sense that a person cannot be required 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 necessity in 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 necessity as part of his overall treatment of the elements of the
offence, within the general framework of the offence. Feuerbach rejects the theories developed by Pufendorf, 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 beginnings 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 that necessity is 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 purpose 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 prohibition 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] According 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 responsible 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 development of the necessity defence. [FN192]
In modern law, excusing necessity is not based solely upon the actor's severe mental distress. Excusing
necessity is based upon the diminished antisocial nature of the act, upon the substantial, double mitigation
of culpability (as substantive rationales that require that we view necessity as a defence that significantly
mitigates criminal responsibility), and upon negative deterrence (individual and general) as an aspect of the
criminal punishment considerations that form part of the principles of criminal justice. These considerations,
as considerations of legal policy, support viewing excusing necessity as a defence to criminal responsibility.
[FN193]
[FNa1]. This research was made possible through a grant from the Government of Canada: Canadian Studies
Faculty Research Award Program, The Israel Association for Canadian Studies and Halbert Exchange Program, and The Minerva Foundation. I would like to thank Klaus Bernsmann, George Fletcher, Randal Graham and Richard Bronaugh for their questions, criticism and fruitful remarks. Special thanks to Kaye
Joachim and the staff of Bora Laskin library, University of Toronto, who supported my research, and to
Avinoam Sharon for translating the paper into English.
[FN1]. As in German, Austrian, Swiss, Italian, Spanish, Portuguese, Japanese, South-Korean, Israeli and
(perhaps) Canadian law. See K. Ghanayim, Excused Necessity: A Defence in Criminal Code
[unpublished, copy with author].
[FN2]. As in the Scandinavian legal systems; see Ghanayim, supra note 1.
[FN3]. This is the case in English law; see Ghanayim, supra note 1.
[FN4]. See A. Aichele, Was ist und wozu taugt das Brett des Karneades (2003) 11 Jahrbuch fr Recht und
Ethik 245; E. Weiglin. Das Brett des Karneades (1942) 88 GS 116; W. Kper. Immanuel Kant und das
Brett des Karneades (Heidelberg: Mller, 1999); J. Hruschka, On The History of Justification and Excuse
in Cases of Necessity in Festschrift for Summers Prescriptive Formality and Normative Rationality in
Modern Legal Systems (Berlin: Duncker & Humblot. 1994) 337.
[FN5]. See Cicero, On Duties. ed. by M.T. Griffin & E.M. Aktins (Cambridge: Cambridge University Press,
1991) Book III. para. 89 at 134: A.R. Dyck, A Commentary on Cicero, De Officiis (Ann Arbor: University of
Michigan Press, 1996) at 612.
[FN6]. See Kper, supra note 4.
[FN7]. Hruschka, supra note 4 at 339.
[FN8]. See Babylonian Talmud, Bava Metzia 62a. On Judaism and Islam see K. Ghanayim, Excused Necessity in Eastern Legal Philosophy [unpublished, copy with author].
[FN9]. See Henrik Ibsen. Peer Gynt, trans, by Peter Watts (London: 1966) Act Five at 165.
[FN10]. See K. Janka, Der strafrechtliche Notstand (Erlangen: Deichert, 1878) 34ff.
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[FN11]. See K. Rabe, Die Entwicklung des Notstandes von der Aufklrungszeit bis zum Reichsstrafgesetzbuch (Hannover: Gttingen Universitt Dissertation, 1930) 10; Janka, supra note 10 at 49ff; W. Kper.
Notstand I (strafrechtlich) in A. Erler & E. Kaufmann (Hrsg.), Handwrterbuch zur deutschen Rechtsgeschichte, Band III (Berlin: Schmidt, 1984) 1065f; R. Stammler, Darstellung der strafrechtlichen Bedeutung des Notstandes (Erlangen: Deichert, 1878) at 17-21; A. Meissner, Die Interessenabwgungsformel in
der Vorschrift ber den rechtfertigenden Notstand (Berlin: Duncker & Humblot, 1990) at 73f; K. Bernsmann, Entschuldigung durch Notstand (Kln: Heymann, 1989) 259f: D. Cohen, The Development of the
Modern Doctrine of Necessity: A Comparative Critique in A. Eser & G. P. Fletcher, eds., Justification and
Excuse: Comparative Perspectives (Huntington, NY: Juris, 1999) II (Freiburg: Eigenverlag Max-Planck Institut fr auslndisches und internationales Strafrecht, 1988) 971 at 977.
[FN12]. On the approach of Thomas Aquinas, see Meissner, supra note 11 at 78f; J. Renzikowski, Notstand
und Notwehr (Berlin: Duncker & Humblot, 1994) 192; J. Kohler, Rechts- und Wirtschaftsphilosophie: Das
Notrecht (1914/15) 8 ARSP 411 at 414ff.
[FN13]. See Grotius, De Jure Belli Ac Pacis (Paris: 1625) Vom Recht des Krieges und des Friedens
(Neuer deutscher Text und Einleitung von Schaetzel, Tbingen: Mohr, 1950), 2. Buch, 2. Kapitel, VI-IX,
149ff.
[FN14]. St. Thomas Aquinas recognized the state's right to put people to death, as well as the right of selfdefence. See Kohler, supra note 12 at 416ff. We should also mention the view of English scholars who rejected the necessity defence where it would involve the killing of a third party, because they reasoned that
the sovereign could not abrogate a religious prohibition. Also see W. Blackstone, IV Commentaries, 16th ed.
(London: Cadell, 1825) 30ff; and see I. Kant, The Metaphysics of Morals, trans. and ed. by Mary J. Gregor
(Cambridge: Cambridge University Press, 1996) at 337. See infra note 88 on Hobbes, who took the view
that the State (the Law) is not religious, and is not bound by religious obligations. Therefore, Hobbes recognized necessity as a defence even when the defensive conduct involved taking a life.
[FN15]. See Kper, supra note 11 at 1065f; Janka, supra note 10 at 51ff; Stammler, supra note 11 at 21ff.
The Catholic moralists did not accept necessity as a defence in the case of an abortion intended to save a
woman's life. They took the view that abortion is prohibited even when it is necessary in order to save the
mother's life, see Kohler, supra note 12 at 419.
[FN16]. See J. Hruschka, Zurechnung und Notstand: Begriffsanalysen von Pufendorf bis Daries in J.
Schrder (Hrsg.), Entwicklung der Methodenlehre in Rechtswissenschaft und Philosophie vom 16. bis zum
18. Jahrhundert (Stuttgart: Steiner, 1998) 163. It should be noted that the writings of Hobbes and Bacon influenced Pufendorf.
[FN17]. See J. Hruschka, Zur Interpretation von Pufendorfs Zurechnungs- und Notstandslehre in der
Rechtslehre der Aufklrung in M. Beetz/G. Cacciatore (Hrsg.), Die Hermeneutik im Zeitalter der
Aufklrung (Kln: Boehlau 2000) 181ff.
[FN18]. See H-H. Jescheck, Methoden der Vorbereitung und Durchfhrung der deutschen Strafrechtsreform in Jescheck (Hrsg.), Strafrechtsreform in der Bundesrepublik Deutschland und Italian (Baden-Baden:
Nomos, 1981) 11, 12f; U. Neumann, Der strafrechtliche Ntigungsnotstand: Rechtfertigungs- oder
Entschuldigungsgrund?, 1988 JA 329, 332; and G.P. Fletcher, Rethinking Criminal Law (Boston, MA:
Little, Brown, 1978) at 819ff.
[FN19]. Infra note 184.
[FN20]. See text belonging to infra notes 61-68.
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[FN21]. See text belonging to infra notes 183-92.

[FN22]. See text in infra note 184 on excusing necessity.
[FN23]. See e.g., A. Brudner, A Theory of Necessity (1987) 7 Oxford J. Legal Stud. 339 at 352ff; D.
Klimchuk, Necessity, Deterrence, and Standing (2002) 8 Legal Theory 339 at 344ff; A. Ripstein, In Extremis (2005) 2 Ohio St. J. Crim. L. 415.
[FN24]. See e.g., E.J. Weinrib, Deterrence and Corrective Justice (2002) 50 UCLA L. Rev. 621 at 632ff.
[FN25]. See text belonging to infra notes 130 and 159.
[FN26]. These Utilitarian theories, in modern law sense like Bentham's, are rejected by the philosophers like
Kant; see text belonging to infra notes 154-56.
[FN27]. See H. Welzel, Die Naturrechtslehre Samuel Pufendorfs (Berlin: de Gruyter, 1958) 89f; Janka,
supra note 10, 80ff; Rabe, supra note 11, 13ff; Hruschka, supra note 4, 337ff: Hruschka, supra note 16,
169ff.
[FN28]. See infra note 184 on sec. 35 of the German penal code.
[FN29]. See e.g., M. Gur-Arye, Should a Criminal Code Distinguish between Justification and Excuse?
(1992) 5 Can. J. L. & Jur. 215 at 229.
[FN30]. See W. Perron, Die Stellung von Rechtfertigung und Entschuldigung im System der Strafbarkeit
in A. Eser & H. Nishihara (Hrsg.), Rechtfertigung und Entschuldigung IV (Freiburg: Eigenverlag MaxPlanck-Institut fr auslndisches und internationales Strafrecht, 1995) 70; A. Eser, Justification and Excuse: A Key Issue in the Concept of Crime in A. Eser & G.P. Fletcher, eds., supra note 11 at 17, 24.
[FN31]. See M. Kremnitzer & K. Ghanayim, Proportionality and the Aggressor's Culpability in SelfDefense (2004) 39 Tulsa L. Rev. 875.
[FN32]. See BVerfGE 39, 1, 44; H-J Hirsch, Die Stellung von Rechtfertigung und Entschuldigung im Verbrechenssystem aus deutscher Sicht in A. Eser & W. Perron (Hrsg.), Rechtfertigung und Entschuldigung III
(Freiburg: Eigenverlag Max-Planck Institut fr auslndisches und internationales Strafrecht, 1991) 39f; A.
Onagi, Die Notstandsregelung im japanischen und deutschen Strafrecht im Vergleich (Baden-Baden: Nomos, 1993) 45. Also see Kant's approach infra notes 94ff, according to which an act that inflicts harm to the
life of the actor can be either justified (in circumstances of self-defence) or unlawful (in a case of necessity);
there is no third option.
[FN33]. See also The Queen v. Dudley and Stephens, (1884) 14 Q.B.D. 273, in regard to the problem in English law, which rejects necessity based upon an absence of reasonable expectation of normative conduct, due
to the claim that exoneration could be taken to mean that the conduct is justified. Also see the problems associated with trying the case in American law, People v. Goetz, 68 NY 26 96 (1986).
[FN34]. On these distinction, see Eser, supra note 30 at 17; J. Hruschka, Verhaltensregeln und Zurechnungsregeln (1991) 22 Rechtstheorie 449; H-H. Jescheck & Th. Weigend, Lehrbuch des Strafrechts Allgemeiner Teil, 5. Aufl. (Berlin: Duncker & Homblot, 1996) 332-33; Fletcher, supra note 18 at 761; G.P.
Fletcher, Should intolerable conditions generate a justification or an excuse for escape? (1979) 26 UCLA
L. Rev. 1359; see also Perka et. al. v. The Queen (1985) 14 C.C.C. (3d) 385; R. v. Ruzic, (2001) 153 C.C.C.
(3d) 1.
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[FN35]. Pufendorf's theory is referred to as the Legal Vacuum Theory.

[FN36]. It should be noted that English thinkers like John Locke, French thinkers like Rousseau, American
scholars like John Wise, and Italian scholars, as well, were influenced by Pufendorf. See Welzel, supra note
27 at 2f.
[FN37]. See text belonging to supra notes 10-15.
[FN38]. S. Pufendorf. On the Duty of Man and Citizen According to Natural Law, ed. by James Tully, trans,
by Michael Silverthorne (Cambridge: Cambridge University Press, 1991) Book I. Ch. 5, para. 18.
[FN39]. See Welzel, supra note 27, 91; Kper, supra note 4, 31; see also text belonging to supra notes
11-15.
[FN40]. See Pufendorf, supra note 38, para. 18; and see Janka, supra note 10, 78ff: Welzel, supra note 27,
89ff; H. v. der Linde, Rechtfertigung und Entschuldigung im Strafrecht? (Frankfurt a/M: Lang, 1988) 39.
Pufendorf relied upon the doctrine of self-preservation as developed by Hobbes.
[FN41]. Pufendorf, supra note 38, Book I, Ch. 5, para. 18.
[FN42]. Ibid.
[FN43]. On the approach of Matthus, see Janka, supra note 10 at 73ff. Also see the position of J.S.F.
Bhmer, according to which the instinct of self-preservation negates culpability (the anti-social nature of
culpability qualitas des dolus iniuriosi), in other words, it is a defence of absence of culpability. See
Kper, supra note 11 at 1066.
[FN44]. It must be noted that the view of Pufendorf Law does not govern necessity does not mean that necessity defence is not subject to the law or is not of interest for the law. According to Pufendorf, the law has
to define the necessity defence and its scope, and than all cases that fall within the scope of the necessity
defence can not constitute a criminal offence; these cases are outside the law and injusticiable. It means that
necessity is a criminal law defence, but not one of justification, excuses or even defence negating the imposition of punishment for a committed offence.
[FN45]. US v. Holmes, 26 Fed. Cas. 360.
[FN46]. The Queen v. Dudley and Stephens, (1884) 14 Q.B.D. 273.
[FN47]. Pufendorf, supra note 38 at para. 20.
[FN48]. The term can does not imply a legal right or license, since Pufendorf does not see necessity as a
justifying defence. According to Pufendorf, an act performed in a situation of necessity is performed in a
legal vacuum. The actor has the physical ability to act, as opposed to the legal ability in the sense of a
right to infringe the legally protected interests of others.
[FN49]. See Welzel, supra note 27 at 89ff; von der Linde, supra note 40 at 38f; Bernsmann, supra note 11 at
281f. Thomasius adopted Pufendorf's approach in its entirety, but took the view that the survival instinct is
not a doctrine that is based upon an absence of a reasonable expectation to face the danger, as Pufendorf believed, but upon the natural and religious right to physical survival; see Rabe, supra note 11 at 16; Janka,
supra note 10 at 81. It is interesting to note that Pufendorf, supra note 38 at para. 24 extended the underlying rationale of necessity. While in the case of a danger to life, Pufendorf is of the opinion that the survivalinstinct doctrine allows (not in sense of right) the actor to infringe any protected interest in order to save his
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life, in the case of property versus property he expresses the opinion that the actor can inflict harm upon another's property in order to rescue his own, as the damaged property is not more valuable than the rescued
property; see Welzel, supra note 27 at 92; Rabe, supra note 11 at 15; Janka, supra note 10 at 79.
[FN50]. Pufendorf, supra note 38 at para. 22.
[FN51]. C.O. Finkelstein, Two men and the Plank (2001) 7 Legal Theory 279.
[FN52]. Ibid at 280.
[FN53]. Also see Bernsmann, supra note 11 at 345.
[FN54]. See Kant, supra note 14 at para. 335.
[FN55]. Also see Bernsmann, supra note 11 at 338.
[FN56]. See A.W.B. Simpson, Cannibalism and the Common Law (Chicago, IL: University of Chicago
Press, 1984) at 144-145.
[FN57]. See the German text of his book ber die Pflicht des Menschen und des Brgers nach dem Gesetz
der Natur (Frankfurt: Insel, 1994) at para. 11-13. The English translation renders these as defence may
rightly be made, and innocent self-defence.
[FN58]. See Pufendorf, supra note 38 at para. 13.
[FN59]. See ibid. para. 23.
[FN60]. But see Pufendorf's statements supra notes 47 and 50.
[FN61]. See J.G. Fichte, The Science of Rights, trans, by A.E. Kroeger (London: Truebner, 1889) at 336ff.
[FN62]. Ibid. at 337.
[FN63]. Ibid. at 18.
[FN64]. Ibid. at 337.
[FN65]. Ibid. at 337.
[FN66]. On Kant's approach, see text belonging to infra notes 81ff.
[FN67]. Fichte, supra note 61 at 337.
[FN68]. Ibid. at 337.
[FN69]. A similar approach was propounded by F. Oetker, Notwehr und Notstand in Festgabe fr Frank,
Band I (Tbingen: Mohr, 1930) 359, 368ff; J. Nagler, Der Begriff der Rechtswidrigkeit in Festgabe fr
Frank. Band I (Tbingen: Mohr, 1930) 339, 340ff, according to whom conduct performed in a situation of
excusing necessity is not prohibited (unverboten); and see M. Conde, Necessity Defined: A New Role In
The Criminal Defense System (1981) 29 UCLA L. Rev. 409 at 439ff, according to whom necessity is
neither justification nor excuse: its apart as a kind of criminal defence, falling somewhere between the notion of justification and excuse. This is similar to the approach of Roman law and Cannon law, according to
which necessitas non habet legem, in other words, necessity stands outside of the law.
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[FN70]. On the role and importance of the nature of the defence, i.e., distinction between justification and
excuses, see text belonging to supra notes 28-34.
[FN71]. See Rabe, supra note 11 at 38; Janka, supra note 10 at 90.
[FN72]. Also see Janka, ibid.
[FN73]. See supra note 46.
[FN74]. Also see A. v. Hirsch, Review Essay/Lifeboat Law (1985) 4 Crim. Justice Ethics 88 at 91. Other
possible and acceptable understanding of Fichte is to say that a person in mortal danger is outside the lawprotecting of his life; i.e. only his life lost the legal protection; all other legal interests enjoy the law protection. According to this understanding, all other legal interests fall within the social contract and enjoy his
protection.
[FN75]. See also Klimchuk, supra note 23 at 342.
[FN76]. Also see A. Baumgarten, Notstand und Notwehr (Tbingen: Mohr, 1911) 29ff; Th. Lenckner, in
Schnke/Schrder, Strafgesetzbuch Kommentar, 26. Aufl. (Mnchen: Beck, 2001) Vorbem sec. 32ff para. 8;
Rabe, supra note 11 at 38; Perka et al. v. The Queen, 14 C.C.C. (3d) 396ff.
[FN77]. For example, sec. 6 of the Israeli Defamation Act.
[FN78]. One might say that the special obligations imposed on police, fire fighters etc. are an exception to
the legal vacuum rule, so that these persons have to face the mortal dangers and can not be outside the law.
According to this view, a person in mortal danger is in a legal vacuum, unless he is under special obligation
to face the danger. But Fichte did not support this view. When Fichte discusses the shipwreck case. he did
not differentiate between the Capitan of the ship, who is specially obliged to face mortal dangers arise from
the sea, and other persons, like passengers. Fichte's view is that every person in mortal danger is outside the
law and there is no legal obligation imposed on him.
[FN79]. Also see Kant, supra note 14 at para. 334.
[FN80]. See infra note 159.
[FN81]. Kant, supra note 14 at para. 234-36.
[FN82]. According to Kper, supra note 4, W. Kper, Es kann keine Not geben, welche, was unrecht ist,
gesetzmssig macht, in Festschrift fr E.A. Wollf (Berlin: Springer, 1998) 285 at 289f. Kant's discussion
appears in the Appendix (Anhang) rather than in the Ground Principles of the Law of Rights (Grundprinzipien der Rechtslehre) or their Introduction (Einleitung) is because, according to Kant, supra note 14 at para.
60, necessity doe not grant a right. It is an alleged right (vermeintliches Recht).
[FN83]. Kant, supra note 14 at para. 234.
[FN84]. The intention here is primarily to Grotius, who held that harm to property is justified in cases of necessity. On Grotius's approach, see text belonging to supra note 13.
[FN86]. As is pointed out by A. Wildt, Zum Verhltnis von Recht und Moral bei Kant (1997) 83 ARSP
159 at 161; Kper, supra note 4 at 3 at n. 4, the term can for Kant refers to normative allowances in the
sense of should.
19 CANJLJUR 31
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[FN87]. Gregor, translated the term bel as ill.

[FN88]. Kant, supra note 14 at para. 235-36. A similar approach is found in Th. Hobbes, Leviathan, ed. by
M. Oakeshott (Oxford: Blackwell, 1946) at 197: If a man, by the terror of present death, be compelled to do
a fact against the law, he is totally excused; because no law can oblige a man to abandon his own preservation. And supposing such a law were obligatory; yet a man would reason thus, If I do it not, I die presently;
if I do it, I die afterwards; therefore by doing It, there is time of life gained; nature therefore compels him to
the fact.; also see O. W. Holmes, The Common Law (1881), ed. by M.D. Howe (Cambridge, MA: Harvard
University Press, 1963) 40, according to whom [T]he law cannot prevent it by punishment, because a threat
of death at some future time can never be a sufficiently powerful motive to make a man choose death now in
order to avoid the threat.
[FN89]. It is interesting to note Kant's approach to self-defence. Kant recognizes self-defence as an objective right that grants the victim the right to employ force. Kant rejects the view that the legislature can limit
the scope of self-defence in cases of defence of life. Kant states in his lectures, Kant's Gesammelte Schriften,
XXVII.2.2, p. 1374 (Naturrecht, Feyerabend) If my life is possibly but not certainly endangered, the state
cannot enact a moderating law [a law that forbids me to protect my life] because 1) the most severe punishment that the state can impose is not greater than the present evil. The law cannot prevent me from protecting my life. Such a law would be absurd. 2) Such a law would be unjust because if the state cannot protect
me then it cannot issue commands. In other words, according to Kant, self-defence is an objective right,
and the legislature cannot restrict its scope, and if it purports to do so, the limitation is unjust. Moreover,
such a prohibition lacks deterrent force.
[FN90]. Immanuel Kant, Lectures on Ethics, ed. by P. Heath & J.B. Schneewind, trans, by P. Heath
(Cambridge: Cambridge University Press, 1997) Part IV. Kant on the metaphysics of morals: Vigilantus's
lecture notes, para. 599-600; and see Kant's Gesammelte Schriften, XXVII.2.2, p. 1353 (Naturrecht, Feyerabend).
[FN91]. On the meaning and effect of this term, see text belonging to notes infra 161-64.
[FN92]. Kant's Political Writings, ed. by H. Reiss and trans, by H.H. Nisbet (Cambridge: Cambridge University Press, 1970), On the common saying: This may be true in theory, but it does not apply in practice at
61, 81-82.
[FN93]. Kant, supra note 14 at para. 236. Unpunishable means that the perpetrator has a defence negating
the punishment; the law grant an acquittal and there is no legal sanctions; i.e., there is no criminal record.
[FN94]. See supra note 83 and adjacent text.
[FN95]. Reflexion Nr. 7195, quoted in Kper, supra note 82 at 289 at n. 13.
[FN97]. Ibid. at para. 213.
[FN98]. Also see M. Pawlik, Die Notwehr nach Kant und Hegel (2002) 114 ZStW 259, 274 ff. Kant does
not address the situation in which the assailant is not criminally responsible, for example, where he acts
without any mental element, is not culpable, or even where there is no conduct, as where a foetus endangers
a woman's life, or the case of Siamese twins. It might be argued that Kant can accept, or at least does not reject the position that the actor has a right to defend himself in a situation of necessity. On a discussion of
this issue in modern Anglo-American law, see J. Horder, Self-Defence, Necessity and Duress: Understand-
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ing the Relationship (1998) 11 Can. J. L. & Jur. 143 at 146; J.C. Smith, Justification and Excuse in the
Criminal Law (London: Stevens 1989) at 78f; I. Kugler, Necessity as a Justification in Re A (Children)
(2004) 68 J. Crim. L. 440 at 443; Kremnitzer & Ghanayim, supra note 31, 875ff; Re A, (2000) 4 All E.R.
961.
[FN100]. Ibid.
[FN101]. Also see Immanuel Kant, supra note 90 at para. 515, according to whom: If we take men in statu
naturali, they are ex leges, under no legal order, and have no laws, only external power to keep them upright. Each exercises his own choice, without acknowledging any general freedom. And see E. Ellis,
Provisional Right in Kant's Rechtslehre in Kant und die Berliner Aufklrung. Akten des IX. Internationalen Kant-Kongress (Hrsg. von v. Gerhardt. R-P Horstmann, R. Schumacher, Berlin: de Gruyter, 2001).
Band 4, 100, 101.
[FN104]. Ibid. at para. 230-31.
[FN106]. Supra note 83.
[FN108]. Kant, supra note 14 at para. 235. In his lectures on ethics, supra note 90 at para. 516. Kant distinguishes between the situation in which one person is already holding on to the plank and has saved himself,
and the situation in which two people are approaching the plank. He states the opinion that the existence of
a permissive law, in the case where preservation of life for two people would depend on the possession of a
thing. Can the other deprive a man who is already in possession of the thing, to ensure his own survival at
the price of the other's life? By right of nature this is never so, precisely because the one to be despoiled
already has possession, and this thereby protecting his life; the other's need can never give a coercive right,
insofar as the ground of the action did not already rest beforehand on the legally valid right to coerce; for
otherwise the other would already have had to possess the coercive right, and this is impossible. But the case
is altered, if neither of the two was yet in possession of the thing, and both were endeavouring to seize possession of that whereby the life of one of them can be saved. In that case, no right subsists between them,
whereby one could be coerced by the other, nor is there any means of preserving the natural urge to use
force; if no concession is made, both lose their lives, whereas by the universal law the life of at least one of
them should have been preserved; it is impossible, though, for either one to decide on employing the means
to act in accordance with the principle; so force must be permitted, in order thereby to institute a right to
preserve life. Here, too, therefore, the underlying maxim is that to institute a right, might precedes right, in
accordance with a permissive law. Only the first case, in which a person already has possession of the
plank, appears in Kant's writings; In The Metaphysics of Morals and in On the common saying: This may
be true in theory ..., as is pointed out by Kper, supra note 4 at 36-43. Kant abandoned the distinction
between the two situations, and argued that in both cases the actor has no right to save himself at the expense of the other. This conclusion derives from the distinction between self-defence, which grants a right to
employ coercive force by right, and necessity, which does not grant such a right.
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[FN109]. Also see Kper, supra note 4 at 4.

[FN110]. Kant's Political Writings, supra note 92, On the common saying: This may be true in theory, but
it does not apply in practice at 81.
[FN112]. On Kant's approach to self-defence, see J. Hruschka, Die Notwehr im Zusammenhang von Kants
Rechtslehre (2003) 115 ZStW 201; Pawlik, supra note 98 at 266; J.C. Joerden, Wahlfachklausur Rechtsphilosophie: Das Notrecht (1997) JuS 726; K. Khl, Die Gebotene Verteidigung gegen provozierte Angriffe. berlegungen aus Anlass der neuesten Rechtsprechung des Bundesgerichtshofes zur Notwehrprovokation in Festschrift fr Bemmann (Baden-Baden: Nomos, 1997) 193, 195; Kremnitzer & Ghanayim,
supra note 31 at 891.
[FN113]. For a different approach, according to which necessity, according to Kant, does not grant a subjective right of release from criminal responsibility by the court, see A.D. Rosen, Kant's Theory of Justice
(Ithaca, NY: Cornell University Press, 1993) at 104ff.
[FN116]. Immanuel Kant, Lectures on Ethics, Par II. Moral philosophy: Collins's lectures notes, supra note
90 at para. 377ff; and see Kant's Gesammelte Schriften, XXVII.2.2, at 1509 (Moral, Mrongovius); and see
L.A. Mulholland, Kant's System of Rights (New York: Columbia University Press, 1990) at 210ff.
[FN117]. Finkelstein, supra note 51 at 281 at n. 9.
[FN118]. See also R. v. Howe, 1987 A.C. 417, 432.
[FN119]. See M. Kremnitzer & K. Ghanayim, New Humanistic Trends in Israeli Criminal Law in Festschrift fr Eser (Mnchen: Beck, 2005) 513, 522-523; Ghanayim, supra note 1.
[FN120]. Also see Klimchuk, supra note 23 at 350.
[FN121]. See Weinrib, supra note 24 at 637.
[FN122]. Supra note 88.
[FN123]. See Kper, supra note 4 at 14; Hruschka, supra note 4 at 348; Mulholland, supra note 116 at 194;
Rosen, supra note 113 at 90ff.
[FN124]. See Kper, supra note 4 at 16. Kohler, supra note 12 at 435; L. v. Bar, Gesetz und Schuld im Strafrecht, Band III (Berlin: Keip, 1909) 235; E. v. Chmielewski, Grund der Straflosigkeit der Notstandshandlung (Breslau: Breslau Universitt Dissertation, 1911) 13 view Kant's approach to necessity as the basis for
Feuerbach's psychological coercion theory (psychologische Zwangstheorie) of punishment.
[FN125]. See W. Schild, Anmerkungen zur Straf- und Verbrechensphilosophie Immanuel Kant in Festschrift fr Gitter (Wiesbaden: Chmielorz, 1995) 831 at 834ff.
[FN126]. Also see K. Khl, Freiheit und Solidaritt bei den Notrechten in Festschrift fr H-J. Hirsch
(Berlin: de Gruyter, 1999) 259 at 265.
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[FN127]. It has been noted that Kant changes the normally accepted term for self-defence, inculpatae tatelae
moderatio to ius inculpatae tatelae, i.e., he drops the word moderatio, which means moderation. Some interpret this to mean that Kant rejects proportionality in self-defence. In other words, a person has a right to
self-defence even when the harm inflicted is disproportional. From this it would appear that the idea of social solidarity as a principle requiring proportionality does not form part of Kant's jurisprudence. See Kant,
supra note 14 at para. 453; also see Jorden, supra note 112 at 726f; Khl, supra note 112 at 195; Hruschka,
supra note 112 at 221f; M. Pawlik, Der rechtfertigende Notstand (Berlin: de Gruyter, 2002) 19f; Pawlik,
supra note 98 at 275; D. Hssl, Recht und Zwangsbefugnis bei Kant in Kant und die Berliner Aufklrung,
Akten des IX. Internationalen Kant-Kongress (Hrsg. von v. Gerhardt, R-P Horstmann, R. Schumacher, Berlin: de Gruyter, 2001) Band 4, 161ff; Sh. Byrd, Kant's Theory of Punishment: Deterrence in its Threats,
Retribution in its Execution (1989) 8 L. & Phil. 151 at 188; G. Fletcher, Punishment and Self-defense
(1989) 8 L. & Phil. 201 at 210f; according to Kant, the obligation to help others expresses a rational principle based upon the theory of wisdom. According to Kant, a person decides and acts rationally, and wisdom
requires that we help one another. Kant proceeds from the assumption that a rational person voluntarily
helps his fellow. Isaiah Berlin was correct in noting, in his Four Essays on Liberty (London: Oxford University Press, 1969) at 153, that this is a counsel of perfection.
[FN128]. See Kper, supra note 4 at 12f; R.G. Wright, Treating Persons as Ends in themselves: The Legal
Implications of a Kantian Principle (2002) 36 U. Rich. L. Rev. 271 at 307ff; E.J. Weinrib, Poverty and
Property in Kant's System (2003) 78 Notre Dame L. Rev. 795 at 799; Mulholland, supra note 116 at 188ff.
[FN130]. P. Bockelmann, Hegels Notstandslehre (Berlin: de Gruyter, 1935) 8ff; see also S. Uniacke. The
Limits of Criminality: Kant on the Plank in Henry Tam, ed., Punishment, Excuse and Moral Development
(Aldershot, UK: Avesbury, 1996) at 113, 114, 116, 120.
[FN131]. Kant, supra note 14 at para. 235ff. Therefore, the claim of Stammler, supra note 11 at 37, that the
term inculpabile means not wrongful is incorrect. The causing of death in the Plank case is wrongful.
[FN132]. See also Fletcher, supra note 18 at 819.
[FN133]. Finkelstein, supra note 51 at 281 confuses justification, excuse and culpability. She writes: Kant
implicitly draws a distinction between the culpability of a deed and its punishability. This distinction is variously expressed as that between conduct rules and decision rules, or more familiarly, between justification
and excuse. What someone does by right, or according to rules of conduct, he is justified in doing. A person
who is excused, by contrast, has no such claim. He is merely shown mercy, but the act is still prohibited,
and he is still guilty. This approach confuses several ideas, and makes imprecise use of the concepts.
Finkelstein is correct in stating that the distinction between justification and excuse is a distinction between
conduct rule and decision rule. However, the culpability refers to the actor, not to the action. A defence of
non-culpability is a decision rule. Under Anglo-American law, an excuse is a defence that negates the actor's
culpability.
[FN134]. See also Bockelmann, supra note 130, 5; G. Jakobs, Strafrecht Allgemeiner Teil, 2. Aufl. (Berlin:
de Gruyter, 1993) 409 at n. 2; H. v. Ferneck, Die Rechtswidrigkeit, Band 2/1 (Jena: Fischer, 1905) 43;
Klimchuk, supra note 23 at 339.
[FN135]. On psychological culpability, see Ghanayim, supra note 1.
[FN136]. F. Genz, Nachtrag zu dem Rsonnement des Herrn Professor Kant ber das Verhltniss zwischen
Theorie und Praxis in Dieter Henrich (Hrsg.), Kant Genz Rehberg: ber Theorie und Praxis (1793),
19 CANJLJUR 31
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(Frankfurt a/M 1967) 89ff, 106f. The translation is from Hruschka, supra note 4 at 338.
[FN137]. Hruschka, supra note 4 at 341. Therefore, the claim of Bockelmann, supra note 130 at 5; G.P.
Fletcher, The Psychotic Aggressor A Generation Later (1993) 27 Isr. L. Rev. 229 at 231, that the distinction between justification and excuse was not accepted in Kant's time would appear to be incorrect. As
stated above, text belonging to note 17, philosophers distinguished between justifying defences and excusing
defences, and between defences that negate punishment as opposed to situations that remove the act from the
criminal sphere.
[FN138]. See Immanuel Kant, Lectures on Ethics, Part II, Moral Philosophy, supra note 90 at para. 295;
Kant's Gesammelte Schriften, XXVII.2.2, p. 1509 (Moral, Mrongovius); P. Menzer, Eine Vorlesung Kants
ber Ethik (Berlin: Pan, 1924) 81, and Kant's Gesammelte Schriften, XXVII.2.1, p. 570 (Metaphysik der Sitten, trans. by Vigilantius). Kant employs the term Entschuldigung, which means Excuse: in the translation by Vigilantius, supra note 90 at para. 570 the term Entschuldigung was imprecisely translated as
exculpation.
[FN139]. Hruschka, supra note 4 at 342ff, and Joerden, supra note 112 at 727; and see W. Kper,
Ttungsverbot und Lebensnotstand (1981) JuS 785 at 786.
[FN140]. Hruschka, supra note 4 at 346ff, and Joerden, supra note 112 at 727.
[FN141]. See Joerden, supra note 112 at 727.
[FN143]. Hruschka, supra note 16 at 174 at n. 62; Hruschka, supra note 17 at 193.
[FN144]. Hruschka, supra note 17 at 193ff.
[FN145]. Hruschka, supra note 112 at 218. Here he joins the view that the actor fulfils all of the elements of
the offence, but criminal responsibility is not imputed to the actor because of lack of deterrence: the approach in note 165.
[FN146]. Gentz, supra note 136 at 106.
[FN147]. See also J. Hruschka, supra note 34 at 449ff. Fletcher, supra note 124 at 231; On the distinction
between conduct rules and decision rules, see P. Robinson, Rules of Conduct and Principles of Adjudication (1990) 57 U. Chi. L. Rev. 729.
[FN148]. See supra note 88.
[FN149]. See Kper, supra note 4 at 48f; Ferneck, supra note 134 at 43; Mulholland, supra note 116 at 194;
Klimchuk, supra note 23 at 340.
[FN150]. See Kper, supra note 4 at 49f; H. v. Ferneck, Die Rechtswidrigkeit, Band 1 (Jena: Fischer, 1903)
312, and supra note 134 at 43.
[FN151]. Janka, supra note 10 at 87f; Rabe, supra note 11 at 25; Meissner, supra note 11 at 85; Ripstein,
supra note 23 at 426; Uniacke, supra note 130 at 114. It must be noted that according to Kant (and following
the German system) the balance between the interests is one of quality, not quantity, i.e., it is the balance
between life versus life. According to Kant, the balance between the life of one person against the life of 100
persons is the same as the balance between the life of one person against the life of other person. Another
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note is that Kant deal only with life-endangering situation, and not with dangerous situation to other legal interest, as limb and liberty; in a case of limb or liberty versus life, i.e., where a person save his own limb or
liberty by killing innocent person, Kant will say that the law (the legal norm on murder or manslaughter) has
a deter force; because the punishment threatened by the law (death) is greater than evil (danger of limb or
liberty). It must be also noted that according to Kant, every legal norm has the normal (reasonable) deterrence in all cases (except in situation where the deterrence is zero, like in life-endangering situation); according to Kant, there is no 20% or 50% of legal norm deterrence. The deter effect of the norm by Kant deal
with the law as abstract, i.e., the norm as a prohibition, and not with the deter effect of the norm in concrete
situation. Criticism on Kant, see Uniacke, ibid. at 117-18. It must be also noted that this conclusion does not
stay in conform to the consideration of escape which noted by Kant, supra note 90. It seems that the consideration of escape can not play any rule in punishment; that is, I think the reason, why Kant did not mention
the consideration of escape in his book The Metaphysics of Morals.
[FN152]. On Kant's theory of punishment, see Kant, supra note 14 at para. 331ff.
[FN156]. Kant, On the foundation of morality: A modern version of the Grundlegung, trans, with comm. by
Brendan E.A. Liddell (Bloomington: Indiana University Press, 1970) para. 428 at 156ff.
[FN157]. This is the conclusion of pure retribution theory of punishment. It is worth to note that according
to scholars, Hegel is not a pure retributivist; on Hegel's theory of punishment see I. Primorac, Punishment
as the Criminal Right in (1980) 15 Hegel-Studien 187 at 193; A. Wood, Hegel's Ethical Thought
(Cambridge: Cambridge University Press, 1990) at 108; A.M. Quinton, On Punishment in H.B. Acton, ed.,
The Philosophy of Punishment (London: Macmillan, 1969) at 55; H-Ch. Merle, Was ist Hegels Straftheorie (2003) 11 Jahrbuch fr Recht und Ethik 145. See also Holmes, supra note 88 at 40. Hegel is of the opinion that when the actor averts the danger that threatens his life by means of taking the life of another who
was not involved in creating the danger, the actor fulfils all of the elements of the offence, and it is therefore
incumbent that we impose criminal liability. However, Hegel recognizes the situation of averting a mortal
threat by inflicting property damage as justified. Hegel holds: The particularity of the interests of the natural will, taken in their entirety as a single whole, is personal existence or life. In extreme danger and in conflict with rightful property of someone else, this life may claim (as a right, not a mercy) a right of distress,
because in such a situation there is on the one hand an infinite injury to a man's existence and the consequent
loss of rights altogether, and on the other hand only an injury to a single restricted embodiment of freedom,
and this implies a recognition both of right as such and also of the injured man's capacity for rights, because
the injury affects only this property of his. G.W.F. Hegel, Philosophy of Right, trans, by Knox (Oxford:
1942) at para. 127. Hegel is thought of as the spiritual father of necessity based upon utilitarian theory as a
justifying defence in German, Swiss and Austrian law. See Jescheck & Weigend, supra note 34 at 354.
[FN158]. See Kper, supra note 4 at 29 at n. 64; Meissner, supra note 11 at 84; Hruschka, supra note 4 at
348; Sh. Byrd, Strafgerechtigkeit bei Kant in Festschrift fr Lampert (St. Ottilien: EOS, 1990) 137;
Hruschka, supra note 112 at 217f; Mulholland, supra note 116 at 194; See also Weinrib, supra note 24 at
638ff; E. Schmidhuser, Vom Sinn der Strafe, 2. Aufl. (Gttingen: Vandenhoeck & Ruprecht, 1971) 52f; K.
Altenhain, Die Begrndung der Strafe durch Kant und Feuerbach in Festschrift fr Keller (Tbingen:
Mohr Siebeck, 2003) 1ff; Klimchuk, supra note 23 at 345.
[FN159]. Rabe, supra note 11 at 25f; Janka, supra note 10 at 87f; A. Geyer, Lehre von der Notwehr (Jena:
19 CANJLJUR 31
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Mauke, 1857) 6; Weiglin, supra note 4 at 89f; Bar, supra note 124 at 234; Stammler, supra note 11 at 45f;
Finkelstein, supra note 51 at 281 at n. 9; and see J.G. Murphy, Does Kant have a Theory of Punishment?
(1987) 87 Colum. L. Rev. 509 at 509ff.
[FN160]. See also Kper, supra note 4, 29 at n. 64; Meissner, supra note 11 at 84f; Hruschka, supra note
112 at 218; Byrd, supra note 158 at 137ff; Mulholland, supra note 116 at 194.
[FN161]. Meissner, supra note 11 at 85; Kper, supra note 4 at 49ff.
[FN162]. Kant, supra note 90 at para. 599-600.
[FN163]. See Hruschka, supra note 17 at 193ff.
[FN164]. Janka, supra note 10 at 85; Bockelmann, supra note 130 at 10ff.
[FN165]. See Byrd, supra note 127 at 188ff; Byrd, supra note 158 at 137ff; Kremnitzer & Ghanayim, supra
note 31 at 890; Hruschka, supra note 112 at 218; Schild, supra note 125 at 834ff; T.E. Hill, Kant on Punishment: A Coherent Mix of Deterrence and Retribution? (1997) 5 Jahrbuch fr Recht und Ethik 291;
Rosen, supra note 113 at 90f, 104f; T.E. Hill, Kant on Wrongdoing, Desert, and Punishment (1999) 18 L.
& Phil. 407ff; Klimchuk, supra note 23 at 345; and see Wright, supra note 128 at 285ff; Weinrib, supra note
24, Kremnitzer & Ghanayim, supra note 119 at 523; and H. Koriath, ber Vereinigungstheorien als Rechtfertigung staatlicher Strafe (1995) Jura 625 at 632ff., according to whom Kant's theory of punishment does
not reject deterrent aspects.
[FN166]. See J-C Merle, A Kantian Critique of Kant's Theory of Punishment (2000) 19 L. & Phil. 311; JC Merle, Eine kritische Alternative zu Generalprvention und Wiedervergeltung in Kant und die Berliner
Aufklrung. Akten des IX Internationalen Kant-Kongress (Hrsg. von v. Gerhardt, R-P. Horstmann, R. Schumacher, Berlin: de Gruyter, 2001), Band 4, 196ff in regard to the opinion that the justifications of punishment, according to Kant, are special deterrence and rehabilitation.
[FN167]. See, for example, H.H. Lesch, Der Verbrechensbegriff (Kln: Heymann, 1999) 23-40, who argues
that Kant recognized general deterrence as one of the purposes of punishment until rejecting it in Metaphysics of Morals. In other words, until Metaphysics of Morals, Kant was not a strict retributivist, and recognized
general deterrence as one of the purposes of punishment. But with Metaphysics of Morals, Kant rejected
general deterrence as part of the purpose of punishment, and became a strict retributivist.
[FN168]. Kant, supra note 138 at para. 286; see also Kant's Gesammelte Schriften, XXVII/2.2
(philosophische Moral, Mongovius) p. 1435f. The same in Kant, Gesammelte Schriften XIX, S. 589; Kant's
Gesammelte Schriften, XXVII.2.2, p. 1391 (Naturrecht, Feyerabend); Kant's Gesammelte Schriften,
XXVII.1., p. 150 (Praktische Philosophie, Powalski).
[FN169]. Finkelstein, supra note 51 at 281 n. 9.
[FN170]. As stated in note 151, according to Kant a criminal norm has the normal (reasonable) deterrence,
except in life-endangering situation where the deterrence is zero. Kant did not divide the deterrence in percentages, such as 20% or 50%. The deterrence by Kant deals with the norm as an abstract prohibition. That
is the reason why Kant adopts the pure retribution theory on imposing punishment. Kant will not accept a
theory that allows high punishment (or any punishment) to achieve deterrence. Kant will not accept the theory that said: the punishment of murder must be death by torture in order to achieve deterrence and protecting the life. See also the text belonging to infra note 172.
[FN171]. Also see Weinrib, supra note 24 at 636; Mulholland, supra note 116 at 188f; Rosen, supra note
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113 at 91 n. 28; J.G. Murphy, Retribution, Justice, and Therapy (Dordrecht: Reidel, 1979) at 85; T.E. Hill,
Kant on Punishment: A Coherent Mix of Deterrence and Retribution? (1997) 5 Jahrbuch fr Recht und
Ethik 305; Byrd, supra note 158 at 146f; J. Waldron, Lex Talions (1992) 34 Ariz. L. Rev. 25 at 40;
Klimchuk, supra note 23 at 350; Ripstein, supra note 23 at 421-23.
[FN172]. Kant, supra note 14 at 332f.
[FN173]. Finkelstein, supra note 51 at 281 n. 9.
[FN174]. B. Chapman, A Theory of Criminal Law Excuses (1988) 1 Can. J. L. & Jur. 75 at 76.
[FN175]. Ibid. at 76 n. 7.
[FN176]. Ibid. at 77.
[FN177]. See text belonging to supra note 165.
[FN178]. See text belonging to supra notes 123-24.
[FN179]. See text belonging to supra note 88, and see Byrd, supra note 127 at 190ff.
[FN180]. See Ghanayim, supra note 1.
[FN181]. For an in-depth examination of this subject, and on the argument that necessity is based, inter alia,
upon significant, double mitigation of culpability, see Ghanayim, ibid.
[FN182]. See ibid.
[FN183]. A. Feuerbach, Lehrbuch des gemeinen in Deutschland gltigen peinlichen Strafrechts, Mit vielen
Anmerkungen und Zusatzparagraphen und mit einer vergleichenden Darstellung der Fortbildung des Strafrechts, 13, Aufl. (Hrsg. von C. J. A. Mittermaier, Giessen: Heyer, 1840) sec. 90, 91.
[FN184]. Feuerbach's approach was adopted in the Bavarian Criminal Code (1861), and the Prussian Criminal Code (1851), see Chmielewski, supra note 124 at 15. The German Criminal Code of 1871, which remains in force to this day, is built upon those two laws. See C. Roxin, Strafrecht Allgemeiner Teil, Band 1,
3. Aufl. (Mnchen: Beck, 1997) 72ff. Section 35, which defines excusing necessity, has not been significantly changed.
Sec. 35. Excusing Necessity
(1) Whoever commits a wrongful act in order to avert an imminent and otherwise unavoidable
danger to his own life, limb or liberty, or to that of a relative or person close to him, acts without
culpability. This rule does not apply in so far as under the prevailing circumstances the perpetrator
could be expected to have assumed the risk, especially because he was himself the cause of the danger
or because he found himself in a special legal relationship. If however, the perpetrator did not have to
assume the risk with regard to a special legal relationship, the punishment may be reduced in accordance with the provisions of sec. 49 (1).
(2) If in committing the act, the perpetrator assumes the existence of circumstances which under
subparagraph (1) would excuse his conduct, he shall be punished only if he could have avoided the error. The punishment shall be reduced in accordance with the provisions of sec. 49 (1).
[FN185]. See K. Khl, Zur rechtsphilosophischen Begrndung des rechtfertigenden Notstandes in Festschrift fr Lenckner (Mnchen: Beck, 1998) 143 at 147.
19 CANJLJUR 31
Page 34
[FN186]. See Bockelmann, supra note 130 at 16.

[FN187]. Feuerbach, supra note 183, sec. 90 at 91.
[FN188]. Feuerbach, ibid. sec. 84. Feuerbach is considered the father of the theory of general deterrence that
underlies the Continental approach to criminal punishment exemplified in the legal systems of such countries as Germany, Austria, and Switzerland. Feuerbach's theory of punishment is also based upon the theory
of psychological coercion, see Roxin, supra note 184 at 48f; G. Stratenweth, Schweitzerisches Strafrecht
Allgemeiner Teil 1, 2. Aufl. (Bern: Stmpfli, 1996) 21f; Jescheck & Weigend, supra note 34 at 72ff.
[FN189]. On Kant's approach, see supra note 88.
[FN190]. See also Janka, supra note 10 at 93.
[FN191]. An approach similar to that of Feuerbach was expressed by F. Bacon. The Elements of the Common Lawes of England (London: 1630, Reprint Amsterdam: Theatrum Orbis Terrarum, 1969) 29. Also see
See P.R. Glazebrook, The Necessity Plea in English Criminal Law (1972) 30 Cambridge L. J. 110; R. v.
Dudley & Stephens, (1884) 14 Q.B.D. 285. Bacon took the view that the law cannot accuse and impose liability upon an actor who acts in coercive circumstances that force him to act as he does. In such circumstances, the actor does not act voluntarily. In a situation of necessity of conservation of life, the act is committed by reason of coercion and not by free choice. In the case of the Plank of Carneades, Bacon states: So
if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some
plank, or on the boates side to keep himself above water, and another to save his life thrust him from it,
whereby he is drowned; this is neither se defendendo nor by misadventure, but justifiable.
[FN192]. See Bernsmann, supra note 11 at 178.
[FN193]. See Ghanayim, supra note 1.
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19 Can. J.L. & Juris. 31

Canadian Journal of Law and Jurisprudence

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dramatic poem. [FN9]

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

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[FN21]. See text belonging to infra notes 183-92.

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[FN35]. Pufendorf's theory is referred to as the Legal Vacuum Theory.

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[FN87]. Gregor, translated the term bel as ill.

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[FN109]. Also see Kper, supra note 4 at 4.

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[FN186]. See Bockelmann, supra note 130 at 16.

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