Abstract

The presentation deals with the learned doctrine necessitas non habet legem (“necessity has no law”) and its use in late medieval and early modern moral discourse on the (foreign) poor. According to doctrine, in extreme necessity (e.g., in famine) a person can take a small amount of certain produce (e.g., five turnips) without being punish for a theft. The doctrine was perhaps developed to benefit paupers by the twelfth-century canon lawyers. Later it included in European legislation, also in medieval Sweden, Norway, and Denmark. 

I will briefly present, how the late medieval philosophers such as Godfrey of Fontaines and William Ockham used the doctrine when developing their ideas on individual rights everyone has in extreme need. When moving to early modern age, the doctrine of necessity right was discussed in relation to the increase of vagrant population and the development of municipal legislation and hospitality system. The Poor Laws distinguished between deserving and non-deserving poor, criminalize begging and closed the borders. Thus, foreign beggars were denied entry altogether. I will present Domingo de Soto’s ideas against the Poor Laws based on ius pergrinandi and the novel doctrine of twofold necessity right. 

Even though the discussion on the right of necessity led to the early development of subsistence rights, we still argue about the same questions. In addition, the environmental emergency forces us to face completely new issues of extreme necessity.