In the current scenario lies a topic that few know and even fewer understand, which consists of the famous state of necessity. This concept is thrown around everywhere, causing various reactions from different sectors of the listening public. It is impressive that even some label it as false, nonexistent, or inapplicable in all spheres and orders. Here we shall address this concept from natural law with understandable words for all readers. The state of necessity is a phenomenon of vital preponderance, which has been suppressed so that blind obedience prevails both to absolute positive law and to despotic authority reserved from any just rational explanation toward its dependents.
What is the State of Necessity?
To give a simple and concise definition of this topic, it is crucial to understand that there exists an order of things in the temporal and supernatural plane. A legal norm cannot be so rigid to the point that it becomes more important than a universal principle such as the preservation of one’s own life. Of course, laws establish homicide as a crime; killing a human being is wrong. Killing a person who threatens us with a firearm and there is no other way to neutralize the attacker, one must act in necessity to uphold the principle of preserving one’s life above the law that prohibits murder. With this example, one can see a simple case of the existence of the state of necessity in natural law.
The state of necessity can be defined as a situation in which, to sustain, maintain, preserve, or defend a superior principle or good, it is necessary to take actions that at another time would be wrong or prohibited because the law condemns them, but to safeguard what is fundamental, a prudent, rational, and proportional act must be executed to preserve what is most important.
This state of necessity serves to maintain the order of things; it is a justification before an objective reality that threatens a vital good, it is a mechanism of protection for elementary or superior principles in the different orders mentioned above.
We can understand that this state would not occur in normal times where the temporal order of things is maintained in harmony and functioning as it should. This state cannot be invoked or claimed if everything is fine. It can be considered as a mechanism of ultima ratio (last resort) to firmly sustain something of superior value, which a latent event is going to transgress in a (usually) irreparable way.
Its Current Relevance:
In view of the foregoing, to serve as a plain definition for the understanding of the entire public, now we must see the current relevance of said phenomenon. In the present world situation, where things are twisted, morphed, redefined, and in contradiction with antiquity in all orders, invoking this state of necessity has become more common. It should not be the case, but to maintain the due order, it is necessary to exercise it. Situations arise constantly worldwide or locally where the authority—whatever the level—issues orders that attack some moral principle ingrained in human nature or seek to subvert natural law even further; there are concrete moments where people acted to make fundamental principles prevail.
Let us look at two recurrent and current examples. In the criminal law of an innumerable number of countries, this concept has been recognized as a human mechanism ingrained in its own nature to avoid an imminent harm that gravely endangers some protected good. Criminal law even provides for this concept as an exemption from responsibility. The notable scope of the conduct carried out in a state of necessity; the law itself does justice by saying that it is justified. The other example can be located in the medical field. When a doctor faces a situation where his patient may worsen or lose his life, he can act without the patient’s consent to do everything possible to avoid his death. It is very clear how the state of necessity is evident in this last example. In both situations, one faces a challenge that attacks a fundamental good; the absence of another way to act is evident, leading to the decision to perform an act that at another time would not be possible, but now is the necessary thing to do to safeguard the order.
Rigorist and Positivist Trends:
The visible counterposition to all eyes today are the violent rigorist and positivist trends that under no circumstances should the state of necessity be invoked. When there is a situation that warrants invoking the phenomenon in discussion, they try to argue through a supposed internal legal route within the legal or logical system. They place as the maximum and unalterable rule the legal order before any fundamental principle. They insist that, in the face of any emergency circumstance, one must absolutely do only what is established by positive law to never violate it and, when the outcome of the event occurs, then one can justify the action by saying that one acted in accordance with the law. Unfortunately, this trend is palpable in large Hispanic American sectors of placing the legal system above the foundations that should protect them.
This stance is erroneous for losing sight of the factual reality of things. There are events where there is simply no other way to act to do good, maintain order, safeguard the foundations, and cope with what happened in the most proportional way possible. Positive law must fit into reality, not the other way around. Positive law serves the events of daily life, combined with the essential norms that form the governing notions of the everyday. One cannot idealize or fall into a monomaniacal view of “the law is the law and it can never be exceeded ever”. The concern deliberately formed by our superiors, authorities, or people in command to always have at their disposal a subdued and blindly obedient mass is exactly what is desired in order to deploy unjust norms that attack natural law—and also in other hierarchies of orders—.
In sum, the state of necessity is figured as an inalienable concept of human conduct. It is a defensive and sentinel phenomenon of what is superior, not a weapon for rebellion. It belongs to that order consecrated in human nature that seeks to know the truth and do good. To do good, in moments of remarkable crisis, it is obligatory to do what the most rudimentary justice demands. Let us not label the state of necessity as a concept of revolution or subversion. If applied from natural law, it can undoubtedly be glimpsed in other orders.