“Necessity Knows No Law” On Extreme Cases and Uncodifiable Necessities
Alon Harel and Assaf Sharon...
... In the Summa Theologica Aquinas addresses the case of necessity by focusing on the limits of legislation. Aquinas asserts that: The lawgiver cannot have in view every single case, he shapes the law according to what happens more frequently by directing his attention to the common good. Wherefore, if a case arises wherein the observance of that law would be hurtful to the general welfare, it should not be observed.11Furthermore, Aquinas recognizes that cases falling into this category are not “legislatable” and adds that:
He who in a case of necessity acts besides the letter of the law does not judge of the law but of a particular case in which he sees that the letter of the law is not to be observed.
Last, Aquinas stresses that agents operating under these exceptional circumstances are not accountable to the law as in ordinary cases. In his view: “The mere necessity brings with it a dispensation, since necessity knows no law.” 11 St. Thomas Aquinas, Summa Theologica, Part II, 1st part, que. 96, art 6. See also II, II, que. 110 art.1. [https://www.law.utoronto.ca/documents/conferences2/Constitutionalism09-Harel.pdf]