Necessity and Murder

Abstract

This article argues that there is an alternative and hitherto unarticulated defence of necessity latent in the case law which could be a defence to murder. The defence can be formulated as follows: if a group of two or more people are virtually certain to suffer death imminently and together, from the same cause, but one or more could be saved only by killing a particular person in that group, then such killing would be lawful. (The killer does not have to be one of the group.) Formulating the defence this way also reveals its underlying justification: if all life is otherwise going to be lost anyway, it is better to save at least some of that life. This article begins by showing how this proposed defence of necessity is consistent with the leading cases and prominent real-life situations. It then differentiates the proposed defence from a defence of lesser evil necessity.