II. The Right of Necessity.
The so-called right of necessity (jus necessitatis) is the
supposed right or title, in case of the danger of losing my own
life, to take away the life of another who has, in fact, done me no
harm. It is evident that, viewed as a doctrine of right, this must
involve a contradiction, For this is not the case of a wrongful
aggressor making an unjust assault upon my life, and whom I anticipate
by depriving him of his own (jus inculpatae tutelae); nor consequently
is it a question merely of the recommendation of moderation which
belongs to ethics as the doctrine of virtue, and not to
jurisprudence as the doctrine of right. It is a question of the
allowableness of using violence against one who has used none
against me.
It is clear that the assertion of such a right is not to be
understood objectively as being in accordance with what a law would
prescribe, but merely subjectively, as proceeding on the assumption of
how a sentence would be pronounced by a court in the case. There
can, in fact, be no criminal law assigning the penalty of death to a
man who, when shipwrecked and struggling in extreme danger for his
life, and in order to save it, may thrust another from a plank on
which he had saved himself. For the punishment threatened by the law
could not possibly have greater power than the fear of the loss of
life in the case in question.
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