Punishment and Consent: Towards a Justificatory Theory of Punishment Alternatively Consensual?

MATÍAS PARMIGIANI

Girona

Seminario; Seminario "Cátedra de Cultura Jurídica"; 2014

Cátedra de Cultura Jurídica (Universitat de Girona)

In the present paper, I am concerned with a question that can be widely enunciated as follows: is the notion of consent capable of playing any role whatsoever in a justificatory theory of punishment? As abstract as it is, the question doesn't seem to contain anything of value. Different concepts of consent will be able to play different roles in different contexts, depending on what we purport to justify and how we pretend to do it. By the same token, there are certain contexts in which the concept of consent, no matter how it is defined, will not be able to play any justifying role. Thus, for example, if the normative order against whose background consent was given is morally bankrupt, the moral magic of consent, as Kleinig adverts, will not work. (2010, p. 21) Therefore, in order to reduce the scope of the question, we need to start from a safer and more appealing place. Personally, I think this place is provided by the above-mentioned opposition: on the one hand, Nino´s objective account of consent; and, on the other, a stronger notion of consent, understood as the expression of an individual´s real will. Along the next three sections of this paper, I explore the possible value of these options motorized by what we may call a truly Wittgensteinian spirit and a wide pragmatist approach to the normativity of institutions and human actions. In the end, none of them will prove to be satisfactory. For that reason, I will see myself in need of exploring a different way to arrive, if possible, at a more compelling answer.