Such a penal law would thus fail
altogether to exercise its intended effect; for the threat of an
evil which is still uncertain- such as death by a judicial sentence-
could not overcome the fear of an evil which is certain, as drowning
is in such circumstances. An act of violent self-preservation, then,
ought not to be considered as altogether beyond condemnation
(inculpabile); it is only to be adjudged as exempt from punishment
(impunibile). Yet this subjective condition of impunity, by a
strange confusion of ideas, has been regarded by jurists as equivalent
to objective lawfulness.
The dictum of the right of necessity is put in these terms:
"Necessity has no law" (Necessitas non habet legem). And yet there
cannot be a necessity that could make what is wrong lawful.
It is apparent, then, that in. judgements relating both to
"equity" and "the right of necessity," the equivocations involved
arise from an interchange of the objective and subjective grounds that
enter into the application of the principles of right, when viewed
respectively by reason or by a judicial tribunal. What one may have
good grounds for recognising as right, in itself, may not find
confirmation in a court of justice; and what he must consider to be
wrong, in itself, may obtain recognition in such a court.
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