NECESSITY, STATE OF. - I. ITALIAN LAW
In the Italian legal system, the state of necessity is regulated both by criminal law and by civil law. The criminal legislator conceives the state of necessity as a ground excluding punishability (Penal Code, art. 54); the civil legislator connects with damage caused in a state of necessity the payment of compensation. The legal definition of the state of necessity must be constructed on these
two provisions.
According to certain writers, only psychological reasons explain the non-punishability of an act committed in a state of necessity: the latter is then conceived as a force operating upon the agent’s mind, depriving him of the freedom to determine and act. Others, however, have observed that there are men who preserve coolness and sound judgment even in the gravest circumstances of life: consequently, the freedom to determine and act may or may not be removed by a state of necessity; whereas the objective unlawfulness of the act is always suppressed by virtue of II.
If this latter proposition is accepted, it must be concluded that anyone who acts in a state of necessity is exempt not only from punishment but also from the criminal rule: his act assumes the character of an act that is not prohibited. The condition of non-punishability therefore signifies exclusion of the offence, that is, of the criminal unlawfulness of the act committed under necessity. In this regard, it has also been observed that, since art. 54 of the Penal Code appears under the title «of the offence», it is evident that the state of necessity must be related to unlawfulness, as a ground excluding II.
The thesis that unlawfulness is excluded also finds a valid argument in the fact that the legislator is aware that his rules are addressed to human beings who, for the most part, possess average virtue, and who therefore cannot be bound to conduct that could be described as heroic; consequently, when the objective elements of a state of necessity are present, the force of the legal rule ceases to operate. There would thus be positive recognition of the ancient maxim «necessity knows no law».
The first paragraph of art. 54 of the Penal Code is now quoted verbatim: «A person who has committed the act because he was compelled to do so by the necessity of saving himself or another from the present danger of serious harm to the person, a danger not voluntarily caused by him and not otherwise avoidable, is not punishable, provided that the act is proportionate to the danger». This legal notion of the state of necessity was adopted, for the most part, by the civil legislator as well: indeed, art. 2045 of the Civil Code provides: «When a person who has committed the harmful act was compelled to do so by the necessity of saving himself or another from the present danger of serious harm to the person, and the danger was not voluntarily caused by him nor was otherwise avoidable, the injured party is owed compensation, the amount of which is left to the equitable assessment of the judge».
Whereas in criminal law the state of necessity exempts from sanction, in civil law it does not exclude the obligation to provide a form of reparation (compensation). Must the existence of a civil wrong therefore be inferred? Although various writers answer in the affirmative, it must be held that the argument that the legislator cannot bind human beings to heroic conduct retains its validity even in the presence of art. 2045 of the Civil Code, which does not alter the legal nature of the act performed in a state of necessity: this act, and the damage resulting from it, remain not unlawful. Notwithstanding its unlawfulness being excluded, the damage in question nevertheless produces a reaction, characterized by the attribution to the judge of a special power of equitable assessment. In conclusion, damage caused in a state of necessity falls among those exceptional cases in which reparation for damage is not conditional upon unlawfulness.
II. CANON LAW
The CIC likewise establishes that, in the majority of cases, the state of necessity completely destroys the delictual nature of the action performed by a person as a consequence of it (can. 2205 § 2); whereas it does not destroy it (although it diminishes imputability) when that action is intrinsically evil (abortion, apostasy, blasphemy), or results in open contempt for the faith (enrolment in societies condemned by the Church, celebration of marriage between baptized persons before a non-Catholic minister), or for ecclesiastical authority (conspiracy against the Pope and the hierarchy, recourse to secular power against the authority of the Church), or in detriment to souls (the parish priest’s failure to reside in the parish, administration of the Sacraments to the unworthy: can. 2205 § 3).Likewise, the CIC also admits that an action otherwise prohibited, and rendered licit and permissible by the state of necessity, may be freely performed not only for one’s own benefit, but also for the benefit of third parties, members of one’s own family, or even strangers.