Oslo Court Instructs Media Breivik Defense is Necessity (Nodrett); English Media Ignore; continue with 'Self Defense'
Andre Muhrrteyn | Norway v. Breivik | 17 April 2012
July 2011: Breivik: Cruel but Necessary -- Atrocious but Necessary
Common Law Necessity Defence: Political Necessity & Civil Disobedience
POLITICAL NECESSITY: Civil Disobedience and the Necessity Defense
John Alan Cohan | Pierce Law Review, 08/20/2007
The necessity defense asserts that breaking the law was justified in order to avert a greater harm that would occur as a result of the government policy the offender was protesting.
Freedom of expression in a free society includes freewheeling public dissent on controversial political issues of the day. Civil disobedience is a form of protest that, while usually peaceful, involves violating the law -- usually by trespassing on government property, blocking access to buildings, or engaging in disorderly conduct. Civil disobedience has been called “the deliberate violation of law for a vital social purpose.” In their day in court, civil disobedients have at times sought to interpose the necessity defense to justify their conduct. The necessity defense asserts that breaking the law was justified in order to avert a greater harm that would occur as a result of the government policy the offender was protesting.
Protestors will seek to invoke the necessity defense not so much to gain acquittal from the relatively minor charges, but to advance the more important objective of publicly airing the moral and political issues that inspired their act of civil disobedience. There is the hope of gaining notoriety for a cause by discussing it in court, and “educating” the jury about political grievances or other social harms.
The strategy is meant to appeal to a higher principle than the law being violated the necessity of stopping objectionable government policies, and to let the jury have an opportunity to weigh their technically illegal actions on the scales of justice. Acquittal is of course hoped for in the end but may be quite low on the protestors' list of priorities.
The necessity defense is attractive to reformers who practice civil disobedience because it allows them to deny guilt without renouncing their socially driven acts. It offers a means to discuss political issues in the courtroom, a forum in which reformers can demand equal time and, perhaps, respect. Moreover, its elements allow civil disobedients to describe their political motivations. In proving the imminence of the harm, they can demonstrate the urgency of the social problem. In showing the relative severity of the harms, they can show the seriousness of the social evil they seek to avert. In establishing the lack of reasonable alternatives, they can assault the unresponsiveness of those in power in dealing with the problem and prod them to action. And in presenting evidence of a causal relationship, they can argue the importance of individual action in reforming society. Thus, the elements of the necessity defense provide an excellent structure for publicizing and debating political issues in the judicial forum.
The goal of describing their political motivations to the jury, and implicitly to the media, is subject to numerous hurdles inherent in the necessity defense. In most instances, as we will see, courts will rule as a matter of law that the actors have failed in the offer of proof regarding the elements of the necessity defense so that the jury rarely is given the chance to weigh in on the matter. On the other hand, if the defense is allowed, the jury is called upon to weigh controversial political issues and to function as the “conscience of the community.” “Reflected in the jury’s decision is a judgment of whether, under all the circumstances of the event and in the light of all known about the defendant, the prohibited act, if committed, deserves condemnation by the law.”3 In cases where judges have been persuaded to allow the necessity defense, juries have, often enough, delivered not guilty verdicts.
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International Human Rights Law: Military Necessity Defence