The Doctrine of State Necessity

This article examines the doctrine of state necessity as a distinct but relatively underexplored doctrine of constitutional law. Drawing on case law from a range of jurisdictions, it considers instances in which courts have accepted otherwise unconstitutional measures as lawful in order to preserve the operation of state institutions or protect significant parts of the legal order. The article reconstructs the doctrine as a limited, temporary and conditional remedy for situations of constitutional paralysis or systemic legal invalidity. It argues that state necessity should be distinguished both from other cases of emergency law and from a general ‘doctrine of necessity’. The article questions the central theoretical grounds that are offered in the case law and literature in support of the doctrine, such as those based on special executive powers, on analogies with the necessity defence, or on a broader supra‐constitutional ‘law of necessity’. It argues that the doctrine should be understood as a doctrine of constitutional law shaped within the tradition of equity. On that account, the doctrine functions as a limited corrective in exceptional cases of constitutional deadlock in order to preserve the legal order without displacing the constitution itself.