The Necessity Defense in the Killing of an Innocent Third Party

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1 Introduction
The general defence of necessity has long been disputed. The South African and English legal systems are intrinsically opposite, and neither seem to escape controversy. These systems differ greatly on the legal subject of defence of necessity in the context of killing an innocent third party. The legal aspects of this defence, as well as accompanying problems which may arise, will be briefly discussed in terms of the South African as well as the English law. Utilitarianism and Kantianism will be used to analyse specific case law that made an enormous contribution to the legal dispute regarding necessity.
2 Necessity
Necessity can be described as the voluntary conscious decision to break the law in order for a lesser evil to prevail over some greater evil. The legal dispute arises where this defence requires absolute proportionality in the sense that the act which was committed should by all means be a lesser crime than the inevitable danger that would have followed. Even this requirement of the defence of necessity seems reasonably simple, until one reaches the situation where one life gets weighed up against another life.
2 1 South African Law
South Africa has a Constitution which sets out the responsibilities of the people of South Africa, as well as the state, and the rules to which every single legislation in South Africa has to succumb. Up until 1972, when judge Rumpff AR made the decision that necessity can be a ground of justification for murder in specific circumstances, South African law shared the views of the English law – that necessity is not a ground of justification to the unlawfulness of a crime. As of the S v Goliath case, the South African view in this particular matter has been es...

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... minimalistic margin of error. All courts should already apply the previously mentioned principles to their cases. The South African law development is somewhat more of a challenge. Killing an innocent person is morally wrong, but the state cannot always adhere to the private interests in morality of the people.

Works Cited

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