Volenti non fit injuria: “To one who consents, no wrong is done.”
Abstract
This article examines the normative force of consent, explaining how consent works its “moral magic” in transforming the moral quality of conduct that would otherwise constitute a wrong against the consenting person. Dempsey offers an original account of the normative force of consent, according to which consent (when valid) creates an exclusionary permission. When this permission is taken up, the moral quality of the consented-to conduct is transformed, such that it no longer constitutes a wrong against the consenting person. Building on this account of how consent works, Dempsey identifies two sets of cases in which consent fails to transform the moral quality of one’s conduct: cases in which one is consent-insensitive to the rational force of another’s consent, and cases in which one acts for sadistic reasons.
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Notes
Vice crimes are typically understood to include conduct such as prostitution, gambling, and drug-related offences—although this list is not meant to be exhaustive. Other candidates for inclusion within the category of vice crimes are alcohol-related crimes during the Prohibition Era, as well as criminal laws prohibiting pornography, fornication, adultery, and same-sex sexual activity (Zimring and Harcourt 2007). See also, Peter de Marneffe’s contribution to this volume (de Marneffe 2012).
As Stanton-Ife has observed, ‘it is a little misleading to speak of the ‘Harm Principle’ as one principle shared by all the leading thinkers associated with [it]’—but, like Stanton-Ife, I will do so by way of shorthand. (Stanton-Ife 2006) In its canonical exposition, J.S. Mill framed the harm principle as follows: ‘the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’ (1859, p. 68). For alternative formulations of the harm principle, see (Hart 1963; Feinberg 1984, 1986, 1988).
Often, the person’s consent is not to being harmed per se, but rather to a risk of being harmed. For the sake of simplicity, I will not attend to the distinction between consent to harm and consent to risk of harm.
Although, compare (Green 2007), questioning the plausibility of the “moral magic” account of consent.
To be fair, Hurd’s account of the normative force of consent is often more measured, as when she characterizes consent as generating a “permission that allows another to do a wrong act” (Hurd 1996, p. 123). As she correctly notes, consent in this sense “does not morally transform a wrong act into a right act….” (ibid). Still, my concern with Hurd’s account remains, insofar as she often overstates the normative force of consent and, like Feinberg, merely identifies the result achieved (moral transformation) without explaining how consent achieves this result. See further discussion of this point below.
“Whatever else consent may do, it transfers …responsibility for one person's act to the shoulders of the consenter” (ibid).
Feinberg cashes out the notion of wronging B in terms of violating B’s rights (Feinberg 1988, p. xxix). I am reluctant to frame this point in terms of rights, however; as it seems to me that Onora O’Neill was correct in observing that “[t]he most significant structures of ethical concern can be…better articulated by beginning from the perspective of agents and their obligations rather than that of claimants and their rights” (O’Neill 1996, p. 4).
If, following A’s punch, B receives medical treatment, the cost of which falls upon B’s community (either through a nationalized health care scheme or increased insurance costs), A’s conduct might thereby constitute a wrong against the community. While there are many interesting issues to unpack on the topic of wrongs to non-consenting third parties and (perhaps even) wrongs to individual consenting subjects qua members of subordinated social groups, such considerations will have to wait for another day. My focus in this article is limited to the sense in which A wrongs B qua individual.
Discussing this matter in the realm of legal normativity, Peter Westen helpfully distinguishes “factual” or “descriptive” consent from “legal” or “prescriptive” consent (Westen 2005, pp. 4–6).
In other words, A’s Φ-ing is not merely innocuous conduct: A has non-trivial reasons not to Φ. If A’s Φ-ing is not justified all-things-considered, then A’s Φ-ing will be conclusively impermissible—which is to say, absent justification, A will be committing a moral mistake when he Φs. Note, however, that this analysis does not resolve the matter of whether A is blameworthy for his moral mistake.
Strictly speaking, being punched by A will create a risk that B will suffer pain, injury, etc. A may be a weak and ineffectual puncher and in the event B will experience nothing more than a pleasant tickle as A’s fist grazes B’s cheek. At the risk of oversimplifying, I will assume away the distinction between consent to harm and consent to risk of harm.
There may, of course, be other reasons why A’s punching B calls for justification: say, C—a bystander - would be upset by the violence, get blood on her shirt as A’s punch lands, etc. Such wrongs to non-consenting third-parties, however, are beyond the scope of this paper.
Feinberg attempted to clarify the distinction between consenting and requesting by distinguishing “strong consent” from “weak consent” (Feinberg 1986, pp. 178–179). Consenting, as explained above, corresponds to what Feinberg called “weak consent”; whereas requesting corresponds to what Feinberg called “strong consent”. If the distinction drawn above between consenting and requesting is plausible, then Feinberg’s analysis is inadequate insofar as it lumps two quite distinct normative acts (a permissive act and a reason-giving act) under the single heading of consent.
This point is of particular significance in some legal contexts (most notably, sex offences), where, in order to establish non-consent, it is often the case that B must communicate a request that A not Φ B. Courts often look for evidence of B’s request that A not Φ her, rather than what the law claims to be looking for (B’s non-consent to A’s Φ-ing her). People v. Warren, 446 N.E.2d 591 (Ill. App. 1983) Given the punitive context of criminal law, evidentiary concerns, and the need to establish culpability beyond a reasonable doubt before imposing conviction and punishment, it may be justifiable for the criminal law to adopt standards that require proof of B requesting that A not Φ B, rather than allowing criminal conviction and punishment to rest on evidence of B’s lack of response (B’s non-consent). Still, it surely does not encourage transparency or consistency to define an offence in terms of B’s non-consent to A’s Φ-ing her and then, in adjudicating the charge, to apply an evidential standard that requires proof of something quite distinct (ie, proof that B requested that A not Φ her).
While Feinberg recognized the distinction between consenting and promising in two-party cases (Feinberg 1986, p. 180), the distinction has often been obscured in discussions of political obligation. For example, Raz gets the point quite wrong when he writes, “consent to a political authority entails a promise to obey it (as well as perhaps an obligation to support it in other ways)” (Raz 1986, p. 83). The better view is that consent and promising remain distinct normative acts, in both two-party cases and in the realm of political morality.
I say normatively “similar” rather than normatively “identical” because placing someone under a duty entails giving them what Raz calls a protected reason for action—which not only bears exclusionary force, but is also a first order reason to do one’s duty (Raz 1979, pp. 18, 21–23). For reasons explained in the previous section, however, I reject the idea that consent generates any new first order reasons for action.
The scope of reasons excluded by duty (its exclusionary scope) will vary from case to case.
Admittedly, it is somewhat artificial to conceive of practical reason as involving a drawn out internal monologue of one’s consideration of reasons for and against a given action. The philosophical methodology adopted here is intended to clarify and illuminate the normative effect of consent on one’s rational horizons, not to suggest that practical reasoning necessarily consists in the sort of conscious deliberation modeled above.
Emphasis added. The last sentence of the quote underscores what was discussed earlier regarding the difference between consent and requests.
For an explanation of supererogatory action in terms of exclusionary permissions that are not taken-up by the agent, see (Raz 1999[1975], pp. 91–95).
This option reflects Feinberg’s moral-transformation interpretation of the volenti maxim.
Note, however, that unjustified conduct is not necessarily blameworthy conduct.
I will not address whether there are any kinds of wrongful conduct that do not take a victim. Note that Feinberg identified a set of so-called “free-floating evils” that do not take a victim, but he remained agnostic regarding whether he had identified genuine evils. (Feinberg 1988, pp. 18–25).
The limiting phrase “so described” is required because there may be circumstances in which any available course of conduct will call for justification. Thus, the preliminary questions will always be, “in virtue of what reasons does the conduct call for justification—and are any of those reasons grounded in the well-being of another?”.
Farley et al. (2009).
I write “more or less” to reflect that there may be differing degrees of consent-insensitivity.
Note that B’s consent does bear normative force in this scenario insofar as it presents A with an exclusionary option; but unless A takes up that exclusionary option, the moral quality of A’s conduct remains the same in the sense of being a wrong against B.
Regina v. Brown [1993] 2 All ER 75.
I take no position on the actual validity of the participants’ consent in Brown. I stipulate the point here for the sake of argument.
As the former United Nations Special Rapporteur on Trafficking in Persons puts the point, “For the most part, prostitution as actually practised in the world usually does satisfy the elements of trafficking. It is rare that one finds a case in which the path to prostitution and/or a person’s experiences within prostitution do not involve, at the very least, an abuse of power and/or an abuse of vulnerability… Put simply, the road to prostitution and life within ‘the life’ is rarely one marked by empowerment or adequate options” (Huda 2006).
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Acknowledgments
I am grateful to John Gardner, Victor Tadros, Kimberley Brownlee, Francois Tanguay-Renaud, Patrick Tomlin, Kimberly Ferzan, Adil Haque, and Peter de Marneffe for comments on previous drafts. Thanks to Carolyn Hoyle for organizing a workshop at the University of Oxford Centre for Criminology in July 2011, and to Stuart Green for organizing the Vice Crimes workshop at Rutgers-Newark School of Law in September 2011, where previous drafts of this paper were presented. Thanks are due as well to the faculty at Rutgers-Camden School of Law and Marquette University Law School for their helpful questions and comments during faculty workshop presentations of this paper. A very early version of the ideas set out in this article were presented at a faculty workshop hosted by the Georgetown Law Center in January 2009, and I am indebted to Robin West for her kind invitation to present my then-embryonic ideas on that occasion. Special thanks are due to Jonathan Herring for helping to develop the account of consent which informs this article.
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Dempsey, M.M. Victimless Conduct and the Volenti Maxim: How Consent Works. Criminal Law, Philosophy 7, 11–27 (2013). https://doi.org/10.1007/s11572-012-9162-0
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DOI: https://doi.org/10.1007/s11572-012-9162-0