Necessity, State of

NECESSITY, State of. - I. ITALIAN LAW. - The state of necessity is regulated, in the Italian legal order, by both criminal law and civil law. The criminal legislator conceives the state of necessity as a ground for excluding punishability (Criminal Code, art. 54); the civil legislator links to damage caused in a state of necessity the payment of an indemnity. On these two provisions the legal definition of the state of necessity must be constructed.

According to some writers, only psychological reasons explain the non-punishability of an act committed in a state of necessity: this is then conceived as a force operating on the mind of the agent, such as to deprive him of the freedom to determine himself and to act. However, others have observed that there are men who even in the gravest circumstances of life preserve coldness and deliberateness of judgment: consequently, the freedom to determine oneself and to act may or may not be taken away by the state of necessity; whereas, on the other hand, the objective wrongfulness of the act is always suppressed by virtue of it.

If this latter proposition is accepted, it must be concluded that he who acts in a state of necessity is exempt not only from punishment but also from the criminal norm: his act takes on the configuration of a non-prohibited act. The condition of non-punishability therefore means exclusion of the crime, that is, of the criminal wrongfulness of the necessitated act. In this regard, it has also been observed that, since art. 54 of the Criminal Code is found under the title "of the crime," it is evident that the state of necessity must be related to wrongfulness, as a ground for excluding it.

The thesis of the exclusion of wrongfulness finds, moreover, a valid argument in the fact that the legislator is aware of addressing his norms to human beings who, for the most part, are of average virtue, and who therefore cannot be bound to a conduct such as to be called heroic; for which reason, when the objective elements of the state of necessity are present, the empire of the legal norm ceases. There would therefore be positive recognition of the ancient maxim "necessity knows no law."

Paragraph 1 of art. 54 of the Criminal Code is now quoted verbatim: "He is not punishable who has committed the act because he was constrained by the necessity of saving himself or others from the present danger of a grave harm to the person, a danger not voluntarily caused by him, nor otherwise avoidable, provided always that the act is proportionate to the danger." This legal notion of the state of necessity has been adopted, in large part, by the civil legislator: in fact, art. 2045 of the Civil Code provides: "When he who has committed the harmful act was constrained by the necessity of saving himself or others from the present danger of a grave harm to the person and the danger was not voluntarily caused by him nor was otherwise avoidable, an indemnity is owed to the injured party, the measure of which is left to the equitable appreciation of the judge."

While in criminal law the state of necessity exempts from sanction, in civil law it does not exclude the obligation of a form of reparation (indemnity). Must one infer from this the existence of a civil wrong? Although various writers are for the affirmative, it must be held that the argument by which the legislator cannot bind men to heroic conduct preserves its validity even in the presence of art. 2045 of the Civil Code, which does not alter the legal nature of the act committed in a state of necessity: this act, and the damage deriving from it, remains non-wrongful. Despite its non-wrongfulness, the damage in question nonetheless produces a reaction, characterized by the attribution to the judge of a special power of equitable appreciation. In conclusion, the damage caused in a state of necessity falls among those exceptional hypotheses in which the reparation of the damage is not bound to the condition of wrongfulness.

Adriano De Cupis

II. CANON LAW

The CIC also establishes that the state of necessity in the majority of cases completely destroys the nature of a delict in the action that is performed by the person as a consequence of it (can. 2205 § 2); whereas it does not destroy it (although it diminishes imputability) when the said action is intrinsically evil (abortion, apostasy, blasphemy), or results in open contempt of the faith (enrollment in societies condemned by the Church, celebration of marriage between baptized persons before a non-Catholic minister), or of ecclesiastical authority (conspiracy against the Pope and the hierarchy, recourse to lay power against the authority of the Church) or in detriment to souls (failure of the parish priest to reside in the parish, administration of the Sacraments to the unworthy: can. 2205 § 3).

Likewise the CIC also admits that the action otherwise prohibited and which is made lawful and permitted by the state of necessity may be freely performed not only for one's own advantage, but also in favor of third parties, members of one's own family, or even strangers.

Lorenzo Simeone