Apr 15, 2025
Necessity in Norwegian Criminal Law: Conditions, Limits, and Application
Necessity is a ground for exemption from punishment that extends the freedom of action beyond the usual in emergency situations. The provision in Section 47 of the Penal Code allows acts that would normally be punishable to be carried out to save a person or goods from a danger that cannot be averted in any other way. This article elucidates the nature of necessity, the conditions for necessity, and the limitations placed on this freedom of action.
The Nature of Necessity
Necessity is related to self-defense, but there are also significant differences. While the rules of self-defense presuppose that the emergency situation is due to an unlawful attack and establish the legal standing against the attacker, the rules of necessity apply to all types of emergencies and regulate the legal position towards the external world otherwise.
The difference between self-defense and necessity can be expressed as follows: In self-defense, it is right versus wrong; in necessity, it is right versus right. This naturally leads to consequences for the extent of the right:
Narrower limits must be drawn for the right to save oneself at the expense of a third party than for the right to defend oneself against an attacker
For damage caused by the act of necessity, compensation must generally be paid, whereas the opposite applies in self-defense
Under Norwegian law, the act of necessity is objectively lawful (rightful), not merely exempt from punishment. This has the important consequence that the act cannot be met with self-defense. However, it does not exempt from liability for damages; in this case, the law imposes liability for a rightful act.
The Necessity Situation
The Requirement of Danger
The emergency situation presupposes "a danger that cannot be averted in any other way". How the danger arose is irrelevant. It may be due to an unlawful attack, natural events, illness, fire, or other causes. The law also does not distinguish between whether the danger is self-inflicted or not.
However, the fact that the danger is self-inflicted can, under the circumstances, be of great importance to whether the necessity provision can be invoked. This has been particularly emphasized in cases where business operators have failed to attend a refresher course by citing necessity. The Supreme Court has then emphasized that it must be examined whether the person concerned should have ensured in advance that they did not end up in the difficult situation that arose.
Protected Interests
According to the law, the danger must threaten "someone's person or goods". This includes:
The act of necessity can occur to the benefit of oneself and others
"Person or goods" includes all individual rights
Public interests of a non-economic nature are not directly included, but Section 47 can be applied analogously in such cases
Concerning acts of necessity in favor of others, questions may arise about how the situation is if the person for whom the act of necessity is beneficial has forbidden or refused the act. The natural solution is that necessity is excluded if it concerns rights over which the person has disposal, but not otherwise, for example, not when life is at stake.
The Act of Necessity
Types of Acts of Necessity
The law does not specify any limitation regarding the nature of the act of necessity. It will often consist of an intervention in another person's property, but it may also involve a bodily harm, a deprivation of liberty, or an encroachment on public interests.
An omission can also be exempted from punishment under the principle of necessity, for example, if a conscript fails to attend military service because he cannot leave a wife and children who are seriously ill. There does not need to be an actual emergency situation in the so-called collision of duties, where the law imposes several duties on a person to be fulfilled at the same time.
Limitations by Special Legislation
In practice, necessity has limited significance in violations of rationing regulations, price regulations, or other provisions where legislation has made a conscious prioritization of different interests. The same applies to "civil disobedience" where someone tries to prevent a public construction project. The Supreme Court has stated that it cannot be accepted that those who disagree with decisions made by the Parliament and the government seek to counteract the implementation of the decisions through disturbances or disobedience to binding orders from the police.
The Requirement of Particularly Significant Overweight
The Basis for Assessment
The prerequisite for necessity is always that the circumstances justified the actor in considering the danger as "particularly significant in relation to the harm that could be caused by his act." In this assessment, the following should be taken into account:
The degree of danger and the magnitude of the possible harm on both sides
The likelihood that the rescue action will succeed
It is not sufficient that a rescue action is socially useful in the sense that what is saved is more valuable than what is sacrificed. What is saved must be particularly significant in relation to the harm caused by the action. This expresses that strong reasons are required to accept such a deviation from the regular legal rules that necessity entails.
Incommensurable Values
The assessment becomes particularly difficult when incommensurable goods are at stake, for example, when it is necessary to sacrifice economic values to avert a danger to life or health, or vice versa. One must then rely on a judgment of the propriety of the action.
It cannot be said that personal rights must always have precedence over economic values. It depends both on the significance of the intervention and on the position of the actor. Some positions entail a certain duty to defy dangers, such as the role of police or firefighter.
Special Issues in Necessity
Life Against Life
As for life, one cannot engage in any grading of life's value based on age, health condition, skill, dependency, or similar considerations. As a general rule, it is not permissible to save one's own life by sacrificing another's, or to save A by sacrificing B. Even if one could save several lives by sacrificing one, it would probably not be justified.
Specific questions arise if the same danger threatens both the good that is sacrificed and that which is saved. A classic example is a shipwreck where two people cling to a piece of wreckage that can only support one. Strictly speaking, it is difficult to approve as rightful that one forces the other to let go. On the other hand, it is unappealing to impose punishment for what a person does in such a situation.
Compulsion Situations
A special case is where a person is coerced into committing a punishable act. Here, it must be assessed whether the danger to which they themselves were exposed if they refused was particularly significant concerning the interests violated by their action.
During the post-war trials, it happened that defendants who had participated in illegal executions or sentences claimed that they were in an emergency situation because they were threatened with death. In these cases, the objection did not succeed. However, there are examples where there has been acquittal for less serious offenses committed under duress.
For foreign war criminals, it was explicitly stated that emergency situations and orders from superiors do not exempt from punishment, but the court can go below the regular sentencing range, and when there are particularly mitigating circumstances, the punishment can be completely waived.
Medical Necessity
In the event of childbirth complications, the situation may be that one has the choice between saving the mother's or the child's life, or - if no intervention is made - letting both die. It has been agreed in Norwegian law that the mother's life should take precedence.
The right to abortion is now regulated by a separate law (Law on Abortion), but the principle of necessity is retained for situations with imminent danger to the woman's life or health. In such cases, the pregnancy can be terminated even if the fetus is viable.
Another medical issue is whether a person can be forced to give blood or organs to another in an emergency. Here, it is difficult to approve coercive interventions into personal integrity, even if the consequences for the donor are small compared to the recipient's need. For transplantation, this is now regulated by separate legislation requiring consent.
Negotiorum Gestio (Unauthorised Help)
A special case arises when the good that is endangered and that which is sacrificed by the necessity action belong to the same person. For example, when a neighbor breaks into a burning house to save valuables, or when a doctor amputates a leg on an unconscious patient to save their life.
The act of necessity is lawful to the extent covered by the rule in Section 47. However, one is not necessarily bound to the same limitation here as elsewhere. To the extent that the rules of negotiorum gestio (unauthorised help) go further than the necessity rule, it is they that become decisive. If it is an undoubtedly sensible measure that one can assume the owner of the endangered good would have wished to take, the action is justified under the rules of negotiorum gestio even if there is not such a significant overweight as Section 47 requires.
Error and Exceeding Necessity
The actor shall be judged based on their own perceptions of the factual situation and the effects of the act of necessity, but if the error is negligent, there may be a place for negligence liability. If they are mistaken about what the law requires by "particularly significant" overweight, it is a legal error assessed according to Section 57, which will rarely lead to exemption from punishment.
The law does not have a rule of exemption from punishment for exceeding necessity, as it does for the right of self-defense. However, there is an option to reduce the penalty below the usual minimum level and to a milder form of punishment (Section 56 letter a).
Conclusion
Necessity represents an important safety valve in criminal law that permits actions which would normally be punishable when it is necessary to save a person or goods from a significant danger. At the same time, the legislation imposes strict requirements on when necessity can be invoked, as that which is saved must be "particularly significant" compared to the harm caused by the action. This reflects that necessity is a limited exception to the general rules and that compelling reasons are required to intervene in others' legal sphere, even in an emergency situation.
