Abstract
At the centre of Regina v Dudley & Stephens, “Dudley & Stephens” is the defence of necessity and its place in a criminal law built on volitional conduct. At Roman law the defence arose first from the facts but was then contingent on the drawing of lots. This second feature did not find favour with St Thomas Aquinas, who deleted it when he wrote the defence of necessity into Church law. From Church law the defence passed into common law, again sans lot, but it was anomalous in regard to kindred defences, in that it was absolute. The English Court in Dudley & Stephens was right to have seen this anomaly as being in need of correction but instead of correcting this in a practical manner, and manipulated the case so that a pronouncement of Victorian morality could be made. This was a prime example of Arnold’s observation that: “in the public trial we find the government speaking ex cathedra”1.
Highlights
Dudley & Stephens is the quintessential criminal case in the common law pantheon because at its centre is the question of what constitutes volitional behaviour
At Roman law the defence arose first from the facts but was contingent on the drawing of lots. This second feature did not find favour with St Thomas Aquinas, who deleted it when he wrote the defence of necessity into Church law
From Church law the defence passed into common law, again sans lot, but it was anomalous in regard to kindred defences, in that it was absolute
Summary
There has been a vast amount of material written on the defense of necessity over the centuries. The review provided here is far from exhaustive and consists largely of those works referred to directly in this paper. III xxiii (Trans Walter Miller, Harvard University Press 1913, rpt 1975). The Elements of the Common Lawes of England Francis Bacon (1630). Commentaries on the Laws of England, William Blackstone (2002). Factual background to Dudley & Stephens and customary law of the time. Cannibalism and the Common Law AWB Simpson Penguin 1986. Modern expositions on the defense, those most influential or expressly referred to in this paper. Rethinking Criminal Law’ George Fletcher Oxford University Press, 2000. Excused Necessity in Western Legal Philosophy K Ghanayam 19 Can. J.
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