State of necessity

Abstract

In constitutional law, state or public necessity is often evoked in two occasions: (1) In defence of officials who, in order to protect a higher interest, infringe a constitutionally protected fundamental right; (2) When the infringement or limitation on fundamental rights and freedoms follow an executive extraordinary measure that is arguably unconstitutional in ordinary times but are deemed necessary for the preservation of other valuable goals. This contribution investigates whether necessity serves as an autonomous concept in constitutional law that enables state officials and the executive to escape harmful consequences of rigid adherence to a rule of law in all circumstances, and whether it can be invoked to preclude the wrongfulness of their actions—so that state officials avoid criminal prosecution and the executive avoid the defect of unconstitutionality.