The Doctrine of Necessity

Zainab Azhar

Law student from Bahria University

Table of Contents:

1. Abstract

Every legal system must confront instances when applying the existing rules to the letter would destroy the very order the rules were designed to protect. The doctrine of necessity supplies the safety valve for precisely such crises. The doctrine of necessity provides that:

“Otherwise unlawful acts may be provisionally validated when they are the only reasonable means of averting an imminent danger to the community or to the legal order itself.”

Because invoking necessity re-centres power in the hands of those who claim to speak for collective survival, the doctrine has always generated controversy: “Is it an emergency lifeline or merely a veil for might-makes-right?” Answering that question requires historical perspective and comparative analysis, both of which this article provides.

2. Classical and Medieval Origins

The ancestor of the modern doctrine appears in Justinian’s Digest, which exempted a person from liability for destroying another’s property if the act prevented a larger catastrophe. Roman jurists coined the maxim “necessitas non habet legem” i.e., “necessity knows no law” not to license anarchy but to recognise that the law presupposes self-preservation. Canon lawyers grafted a moral dimension onto the concept, allowing lesser sins to prevent greater ones, while theologians such as Aquinas justified breaking Sabbath rules to save a life.

Early English sources show the idea in action. Sir Edward Coke’s take on Magna Carta approved commandeering horses to fight fire. On the other hand, Blackstone’s Commentaries noted that trespass or even homicide could be justified if necessary to repel invasion. By the eighteenth century, necessity had become a recognised defence in cases involving the destruction of property to stop the spread of fire or plague.

3. Early-Modern Theoretical Debates

In the twentieth century, the opposing views of Hans Kelsen and Carl Schmitt gave the doctrine its modern edge. Kelsen’s pure theory held that

“A successful revolution replaces the grundnorm.”

Therefore needs no judicial doctrine of necessity; legality simply follows efficacy. Schmitt countered that

“The sovereign must retain the power to declare a state of exception when the constitution’s survival is at stake”,

A view that places political judgment above legal rule. Their debate framed the later judicial struggle over whether courts should recognise emergency power or contain it within legal limits.

4. Constitutional Necessity in Pakistan

No jurisdiction has lived with necessity more dramatically than Pakistan. In Federation of Pakistan v. Maulvi Tamizuddin Khan (1955) where the Supreme Court validated the Governor-General’s dissolution of the Constituent Assembly, calling it a step required to avert governmental paralysis.

The same logic surfaced in State v. Dosso (1958), where Martial Law was upheld and Human Rights, barely acknowledged. Again, after later coups (1969, 1977, 1999). Although Sindh High Court Bar Association v. Pakistan(2009) finally refused to legitimise extra-constitutional emergency rule, six decades of jurisprudence left an ambiguous legacy; necessity could save the constitutional order, but it could also entrench military dominance.

5. Canada’s “State Necessity” and the Rule of Law

Canada faced a textual, not military, emergency when historians discovered that Manitoba’s statutes had been enacted in English only, in breach of the Manitoba Act 1870. In Reference re Manitoba Language Rights (1985), the Supreme Court declared all those laws invalid ab initio, yet delayed the effect of its ruling so that repeal would not create an anarchic vacuum. The Court called this suspension “state necessity,” stressing four limits:

(1) no alternative legal path,

(2) strict proportionality,

(3) temporary duration, and

(4) ongoing judicial supervision.

Canada thus demonstrated that necessity can operate within the rule-of-law framework rather than against it.

6. The Caribbean, Africa, and Other Commonwealth Examples

Revolutionary regimes in the Commonwealth Caribbean tested the doctrine further. After Grenada’s 1979 coup, a Court of Appeal created by the new government tried former officials. In Mitchell v. Director of Public Prosecutions (1985), the appellate court upheld its own existence, reasoning that basic administration of justice was a necessity that overrode procedural irregularities. Nigerian and Gambian courts vacillated in similar post-coup cases, sometimes validating decrees to avoid “legal limbo,” other times striking them down to protect fundamental rights. These mixed outcomes underline that necessity’s reach correlates with each constitution’s safeguards and each court’s institutional temperament.

7. International Law: Article 25 ILC and the Gabcikovo Nagymaros Judgment

In public international law, necessity now appears in Article 25 of the International Law Commission’s Articles on State Responsibility which state that the act must be the only way to protect an essential interest against grave and imminent peril, and it must not seriously impair another State’s essential interest. The International Court of Justice gave concrete shape to the test in Gabcikovo–Nagymaros Project (Hungary/Slovakia) (1997), accepting that ecological collapse could qualify as an essential interest but finding that Hungary had other lawful options and so failed the “only way” criterion.

Investment tribunals have since applied Article 25 to financial crises most famously in CMS Gas v. Argentina often disagrees on what counts as “essential” and on how strictly to interpret “only way.”

8. Criminal-Law Necessity: From Dudley & Stephens to Modern Codes

Necessity in criminal law centres on individual, not state, survival. The classic limit is R v. Dudley and Stephens (1884), in which shipwrecked sailors killed and ate a cabin boy. The court ruled that necessity cannot justify murder, anchoring an absolute moral boundary. Contemporary jurisdictions refine the defence through statute, the U.S. Model Penal Code uses a “choice-of-evils” balancing test, where Canada demands imminent peril or threat and no reasonable legal alternative, and Germany distinguishes rechtfertigender (justifying) from entschuldigender (excusing) necessity in §§34–35 StGB (German Criminal Code). Medical emergencies, hijacked aircraft, and break-and-enter cases to save life illustrate situations where the defence succeeds without triggering systemic collapse.

9. Private-Law Analogues and Contractual Impossibility

Private law borrows necessity’s logic under other names. Tort doctrine recognises “public necessity” trespass (no compensation) and “private necessity” (trespass with compensation). Contract law’s force majeure and frustration defences excuse performance rendered impossible by war, pandemic, or natural disaster. Civil-law codes house explicit necessity defences like France’s Code Pénal Art. 122-7 absolves acts taken to avert serious danger where no other means exist. Italy’s Art. 54 Code of Criminal Procedure is almost identical.

10. Critiques and Conceptual Limits

Critics highlight three pathologies.

First, the doctrine’s elasticity tempts governments to manufacture emergencies. Second, ex-post judicial validation erodes democratic accountability. Third, vague terms like “grave peril” or “essential interest” invite subjective judgment. Pakistan’s long reliance on necessity shows how emergency reasoning can entrench military rule; the rigid rejection in Dudley & Stephens, conversely, demonstrates that bright-line limits may clash with moral intuition in extreme dilemmas. Normative theorists such as Lon Fuller and David Dyzenhaus therefore advocate a morality of necessity: transparency, temporariness, and after-the-fact accountability.

11. Contemporary Challenges: Pandemic and Climate-Driven Necessity

COVID-19 revived the debate worldwide. Lockdowns, border closures, and digital tracking were upheld by many constitutional courts but only with sunset clauses, legislative review, and proportionality auditing. Internationally, Argentina and Venezuela pleaded necessity when suspending debt payments to protect public-health budgets; arbitrators have been sceptical, demanding rigorous proof of “grave and imminent peril.”

Climate litigation is the next frontier. Small-island States hint at suspending debt payments if sea-level rise threatens statehood. Some environmental activists invoke a “climate necessity defence” in domestic courts when sabotaging carbon-intensive infrastructure; outcomes so far are mixed, but the plea gains conceptual traction as climate threats intensify.

12. Conclusion

From Roman aqueducts to pandemic quarantines, the doctrine of necessity has functioned as law’s emergency escape, narrow enough to preserve the rule, yet wide enough to avert its collapse. Comparative experience suggests four safeguards for legitimacy i.e., clear triggers, strict proportionality, short duration, and post-crisis accountability. Where those safeguards are honoured, necessity can restore constitutional order as in Canada; where they are ignored, it legitimises autocracy as early Pakistan exemplified. In an era of overlapping crises, financial, epidemiological, and climatic, the doctrine will remain indispensable, but so too will the vigilance required to keep it from devouring the rule of law it claims to save.

References

Justinian’s Digest (D. 9.2.29)
France’s Code Pénal 122-7
Italy’s Art. 54 Code of Criminal Procedure
German Criminal code §34–35
Manitoba Act 1870
Article 25 of the International Law Commission’s Articles on State Responsibility
Gabcikovo–Nagymaros Project (Hungary/Slovakia) (1997)
Federation of Pakistan v. Maulvi Tamizuddin Khan (1955)
State v. Dosso (1958)
Sindh High Court Bar Association v. Pakistan (2009)
Reference re Manitoba Language Rights (1985)
Mitchell v. Director of Public Prosecutions (1985)
Gabcikovo–Nagymaros Project (Hungary/Slovakia) (1997)
MS Gas v. Argentina
R v. Dudley and Stephens (1884)

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