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Doctrine of necessity
The doctrine of necessity is the basis on which extraordinary actions by administrative authority, which are designed to restore order or uphold fundamental constitutional principles, are considered to be lawful even if such an action contravenes established constitution, laws, norms, or conventions. The maxim on which the doctrine is based originated in the writings of the medieval jurist Henry de Bracton, and similar justifications for this kind of extra-legal action have been advanced by more recent legal authorities, including William Blackstone.[citation needed]
In a controversial 1954 judgment, Pakistani Chief Justice Muhammad Munir validated the extra-constitutional use of emergency powers by Governor General, Ghulam Mohammad. In his judgment, the Chief Justice cited Bracton's maxim, 'that which is otherwise not lawful is made lawful by necessity', thereby providing the label that would come to be attached to the judgment and the doctrine that it was establishing.
The doctrine of necessity may also refer to the necessity of a judge with a reasonable apprehension of bias continuing to decide a matter if there is no alternative to that judge. The Supreme Court of Canada applied this doctrine in the 1998 Reference re Remuneration of Judges (No 2) case.
In international law, the exception is allowed by the UN's International Law Commission (ILC) to be used by a state facing "grave and imminent peril":
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
— Article 25 (Necessity) of the ILC's Draft Articles on the Responsibility of States for Internationally Wrongful Acts
Therefore, an obligation of customary international law or an obligation granted under a bilateral investment treaty may be suspended under the doctrine of necessity. It is "an exception from illegality and in certain cases even as an exception from responsibility." In order to invoke the doctrine of necessity:
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Doctrine of necessity
The doctrine of necessity is the basis on which extraordinary actions by administrative authority, which are designed to restore order or uphold fundamental constitutional principles, are considered to be lawful even if such an action contravenes established constitution, laws, norms, or conventions. The maxim on which the doctrine is based originated in the writings of the medieval jurist Henry de Bracton, and similar justifications for this kind of extra-legal action have been advanced by more recent legal authorities, including William Blackstone.[citation needed]
In a controversial 1954 judgment, Pakistani Chief Justice Muhammad Munir validated the extra-constitutional use of emergency powers by Governor General, Ghulam Mohammad. In his judgment, the Chief Justice cited Bracton's maxim, 'that which is otherwise not lawful is made lawful by necessity', thereby providing the label that would come to be attached to the judgment and the doctrine that it was establishing.
The doctrine of necessity may also refer to the necessity of a judge with a reasonable apprehension of bias continuing to decide a matter if there is no alternative to that judge. The Supreme Court of Canada applied this doctrine in the 1998 Reference re Remuneration of Judges (No 2) case.
In international law, the exception is allowed by the UN's International Law Commission (ILC) to be used by a state facing "grave and imminent peril":
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
— Article 25 (Necessity) of the ILC's Draft Articles on the Responsibility of States for Internationally Wrongful Acts
Therefore, an obligation of customary international law or an obligation granted under a bilateral investment treaty may be suspended under the doctrine of necessity. It is "an exception from illegality and in certain cases even as an exception from responsibility." In order to invoke the doctrine of necessity: