A Consensual Theory of Punishment

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A Consensual Theory of PunishmentAuthor(s): C. S. NinoSource: Philosophy & Public Affairs, Vol. 12, No. 4 (Autumn, 1983), pp. 289-306Published by: WileyStable URL: http://www.jstor.org/stable/2265375 .

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C. S. NINO A ConsensualTheoryof Punishment

I. A DILEMMAUnderlyingmost discussions of the justificationof punishment is a di-lemma pitting a certain general conception of the aims of a liberal andrational system of criminallaw against intuitions aboutdistinctions andrequirements that this system ought to take into account. These intui-tions-for example, that an innocent person should never be punishedor that certain subjective attitudes are requiredfor criminalresponsi-bility-do not appearto be supportedby a view of the criminal aw whichis mainly concerned with the protectionof society in general.In the face of this dilemma some thinkers rely on their intuitions,refusing to accept a general conceptionwhich, althoughinitially attrac-tive,threatens tousher us into a BraveNew World.Othersremainfaithfulto the principlesthey consider essential to a liberalandrationalmorality,dismissing their intuitive convictions as outmodedsuperstitions.This article proposes an escape from the dilemma. What will be ex-pounded here is the part of a general theory of criminalresponsibilitywhich deals with the justificationof punishment.' The theoryendeavorsto reflect some basic liberalideals while satisfyingmany of our deepestmoralintuitions about these matters.II. PUNISHMENT AND SOCIAL PROTECTIONPunishment is one species of the large family of measures involvingintentionaldeprivationof a person'snormallyrecognizedrightsbyofficialinstitutions, using coercive means if necessary. This general class also

i. The whole of thatgeneral theory s foundin my Ph.D. thesis.

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includes quarantines,the confinement of dangerous mental defectives,requisitions in time of war, and the like.The justificationof these measures on the groundsof socialprotectionis rarely attackedas a general principle,providedsome minimum con-ditions are met. These conditions take into account the fact that this isa sort of protectionthat requires causing harm to the very thing which

is thereby protectedfrom still greaterharms. Forexample,if we say thatsociety suffers harm when some of its members contract a disease, ob-viously we shouldsay the same when someone is deprivedofhis freedomby virtue of a quarantine.The impositionof these measures, therefore,must not occur before the followingrequirements are met: it must becertain or highly probable hat what is taken to be an evil will occur; theprotectivemeasures must be both necessary and effectivefor preventingthat evil; and the measures must involvelesser evils than those they areintended to prevent. If there is no dispute about the evaluationof evilsinvolved, it would simply be self-defeatingto protect societyfrom a harmby using a measure which either involves a greaterharm,is ineffective,or is unnecessary.In the case of nonpunitive measures involving the coercivedeprivationof rights, it is beyonddoubt that these measures constitute a lesser evilthan those they seek to prevent. Whenthis is so, few peoplewould objectto such measures. Although there aresome complications hat this hastyacceptance overlooks(some of which I shall mention below), it is un-deniable that considerations of social protection providea prima faciejustificationfor the coercivedeprivationof some rights.The obviousquestion is, To what extent can the legitimacyof punish-ment be defended on the same groundsas the legitimacyof, say, quar-antines? This leads us, of course, to an evaluationof the well-knownutilitarian ustificationof punishment.I shall not surveyhere the argumentswhich objectthat the prudentialrequirements governingall protectivemeasures listed above are hardlymet in the case of punishment. These objections depend on empiricalclaims, and will not be discussed in this essay.

Yet other argumentsagainst ustifyingpunishmenton groundsof socialprotection seem to lose much of their weight when they are examinedin the context of other compulsoryand generallyunpleasantdeprivationsof rights. Forinstance, the argument that social protectionwould allow



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extremelyharshpenalties forpreventingeven the most triflingoffenses2is clearlyabsurd:hanging a motoristfor the sake of preventingparkingoffenses would be self-defeatingas a measureof socialprotectionon theassumption that one accepts the scale of values which is crucial to theargument(the death of apersonis worse than a congested traffic low).3A much more seriousargument s the commonly nvokedone4pointingout that the utilitarianjustification of punishment allows for cases inwhich innocent people could be punished in order to prevent greaterharms to society. But it is striking that problemsraised by such cases(which are fairlyunlikelyif the prudentialconditions are observed)havebeen a sourceof such deepdoubts aboutsocialprotectionas ajustificationof punishment, when we considerthat in actualfact the victims of non-punitivecompulsorymeasuresarealways nnocent. The burdenof show-ing the relevantdifferencebetween punishmentand other coercivemeas-ures rests on those who allege this argument.

Nevertheless, the justification of punishment based solely on socialprotection aces a furtherobjection,which I considerdecisive,and whichappliesto the punishment not only of innocent people but to that of theguilty as well. Although it is seldom invoked in present discussions ofpunishment, it is the same objection being made increasingly againstutilitarianism n general.5In the same way that a measure increasingthe nationalproductat thecost of a highly inequitabledistributionof wealth could be questionedasunfair,a measurediminishing he overallharmthat the communitywouldsuffer at the cost of selectivelyharmingsome of its memberscould like-wise be attackedas unfair.Such measuresare condemnedbythe Kantian

2. See this argument,for instance, in K. G. Armstrong,"TheRetributionistHits Back,"in The Philosophyof Punishment,ed. H. B. Acton (London:Macmillan& Co., 1973).3. Except that we considered,as Rousseau and others did, that the individualwhocommits an offense is automatically xcluded from society and, therefore, s not countedany longer in the calculation of benefits and harms affecting that society. See a criticalappraisalof this view in C. S. Nino, "Lajustificaci6n de la legitima defensa," DoctrinaPenal 2, no. 6 (I979).4. This argument is advanced, among others, by J. D. Mabbott,"Punishment,"n ThePhilosophyof Punishment,ed. H. B. Acton,and K. G.Armstrong,"TheRetributionistHitsBack,"p. 155.5. See, especially, John Rawls,A Theory of Justice (Oxford:OxfordUniversity Press,1971), pp. 26, 27; andRobertNozick, Anarchy,State and Utopia(New York:Basic Books,I974), pp. 28, 29, 32, 33.



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injunction against using men only as means and not as ends in them-selves.Without pursuing the arguments and rejoindersthat this appeal todistributive ustice provokes,I am convinced this appeal s valid. Unlesswe adhere to the mythicalview that societyis a sortof living organism,6thereis no reasonfor seeing it as the basicmoralunit,whose comparativewell-being-independent of the well-being of each of its members-isthe groundon which politicalaction can be justified. If individualsaretaken to be those basic moral units and not simplyas the basic psycho-logical ones (in the sense of being the sole source of pleasure and dis-pleasure), it is their comparativewell-being that should groundpoliticalaction.

Accordingly, o justifyquarantinesor penaltiesit is not enough to pointout that society,as awhole, will be betteroff. A leper couldrightlyappealto the unfairnessof having his conditionaggravatedby deprivinghim ofhis freedomwhile others enjoy health and freedombecause of his dep-rivation.However,in the case of the nonpunitivedeprivationof rights this ob-jection can be overcome byobservingcertainconditions n the impositionof these measures. In some cases a proceduralmechanism could bedesigned that achieved a fair allocationof burdens (we might, for in-stance, resortto a lotteryto decide whose goodsare to be requisitioned).In other cases the unpleasantness of the measure could be reduced to aminimum. But the most general way of qualifyingmeasures of socialprotectionso as to overcomethe problemof distributiveunfairness is tooffer compensationto the individualswho suffer the deprivation.7

The problem,however,is that no similardevices can be envisagedforsupplementingpunishment in order to make it compatiblewith the re-quirementof a fairdistributionof benefits and burdensamongthe mem-bersof society.Ifpunishmentis justifiedbyits capacity odiminish futurecrimesagainstsociety,andif thisobjective s pursuedbymeansof generaland special deterrence, the unpleasantnessof punishment is not a mereside-effect (as in the case of other measures) but is essential to thepurposes being pursued.8To offer compensationto the people who are

6. D. Gauthier,PracticalReasoning(Oxford:OxfordUniversityPress, I963), p. 126.7. See this point in Nozick,Anarchy,pp. 142-46.8. I think that this is also a conceptualrequirement,distinguishingpunishment fromother coercivelegal measures.



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subjected to punishment would,obviously,be incompatiblewith the rea-son for imposing it.Thus, it seems that unless we surrenderto the retributivist laim thatconsiderations of desert (according to the evaluation of the moral char-acter of people as reflected in their acts) should be taken into account,punishment necessarily implies an unfair distribution of burdens andbenefits among members of society.However, I think that there is a line of argumentwhich shows thatthe practice of punishment can be patternedafter a commonlyacceptedprincipleof distribution hat does not rely on the moralblameworthinessof people and does not require us to relinquish the conception of pun-ishment as a measure of social protection.Section III will be dedicatedto the analysis of that generalprinciple, and in Section IVits applicationto punishment will be discussed.

III. DISTRIBUTION ACCORDING O CONSENTAppeals to an equitable distributionof benefits and burdens are out ofplace when the individualsconcernedhave consciouslyacquiescedin abalance which is not egalitarian.Forwe recognize fairnessaccordingtoconsent9 as a separate justification of political action, and it may becombined with other criteria of fairness. No doubt, this is an area ofmoralitythat needs much more exploration han it has so farreceived. Ican only present here some generalremarks about the matter.One obviouscategory of cases (though not the only one) in which weaccept what could,but for its origin,be consideredan unfairdistributionof goods, is that of contracts.The scope of socialrelationshipsrecognizedas permissibleobjects of contract could vary greatly,but the validityofsuch contracts, apartfromthis, is not dependentin any legal system onwhetheror not theyrepresentaperfectlyequitabledistribution f burdensand benefits among the parties;the validitybasicallydependsinstead onwhether those partieshave freelyconsented to the distribution nvolved.There is indeed a strong and praiseworthy rendin modernlegal sys-tems which could be described as aiming to prevent gross inequalityofbargainingpower.But, this trendrespondsto an increasingconcern over

9. A. M. Honore,"Social ustice,"McGillLawJournal 8, no. 2 (I962), distinguishes romamongdifferentprinciplesof justice what he calls "justiceaccording ochoice,"connectingthis principleto the justificationof punishment.



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the extent to which it can be maintained that the will of the parties isfree and conscious even in the absence of such traditionaldefenses asduress or necessity.Quiteobviouslythe emphasis on the parties'actualfreedomto contractis due to the fact that only the presence of such freedom can justify adeparture rom the requirement that social distributionsof benefits andburdens should be equitable, takinginto account such circumstancesasneeds, desert, and so forth. When an equitabledistribution s being pur-sued, as in systems of social security, the will of the persons involvedmay be overridden.Certainlythe limits to which voluntaryand possiblyinequitabledistributionsare to be permitted, and equitable but possiblycompulsoryones are to be enforced,arouse well-knownideological con-troversies.Nevertheless, few woulddeny that if inequitabledistributionsare to be upheld, one of the firmest groundsfor upholding them wouldbe their consensual character,and that if compulsorydistributionsareenforced, the equity of their content would be a goodargumentin theirfavor.The nature of the consent required for the validity of contracts is amatter of permanent controversyamong jurists. Rather than commenton the details of those discussions, I shall simply reiterate some basicguidelines for what constitutes consent (even when, in practice, somedeparturesfrom those guidelines are toleratedfora variety of pragmaticconsiderations).It is often supposedthat for an individual o consent to the assumptionof some dutyorresponsibilityhe must necessarilymakea statement suchas, "Iconsent to this."Such a supposition s a mistake. Aside fromwhatmay be legally requiredforthe validityof a specialclass of contracts,theconsent of the individual to some duty or responsibility s shown by theperformanceof any voluntaryact with the knowledge that the act hasas a necessary consequence the assumptionof the dutyorresponsibilityin question. For instance, the act can be to sign a document, to take ataxi, to lift a hand in an auction, all of which may have as consequencehaving incurred the obligationto pay for something.

What is requiredin the first place is, therefore,that the act implyingconsent be voluntary. (Of course, this requirement s excluded in somecases of defense, such as automatism,coercion,andinsanity.)Obviously,the voluntarinessof the act is not enough to constitute consent: the agentmust be aware of the relevant circumstances in relation to which the



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actionis described.An individualentering into a contractmust not onlysign a certain document without being forced, but he must also knowwhat he is doing.This knowledgemust include, in particular,awarenessof the obligationsor liabilitieshe is assuming with his act.Apersonconsents to all the consequences that he knowsare necessaryeffects of his voluntaryact. As Hobbesput it: "Whoevervoluntarilydothany action,accepteth all the knownconsequences of it."'oTherefore, heperson who voluntarilyperformsan act knowing that it has the under-taking of certain obligations as a necessary consequence consents toundertake those obligations.Obviously,the consent to undertakea contractualobligation s inde-pendent of the attitudesof the persontowardthe acts that are the objectof the obligation.An individualmay consent to undertakethe obligationof performingan act despite the fact that he greatlydislikes performingit or that he does not intend to performit when the occasion arrives;consenting to undertake a contractualobligationcan even be accom-panied by the belief that the obligationwill never be enforced.It is generallyaccepted that the fact that a contractualobligationhasbeen consented to providesat least a primafacie moraljustificationforenforcing it. We can test our convictionsabout the matterwith the fol-lowing example of a covenant that may have quite dramaticeffects: thevoluntaryenlistment of an individual n the armyof a countryat war. Ifthe volunteerdies defending the country,one might indeed say that heshouldereda veryunequal shareof the burdensof protectinghis societycomparedwith the benefits he obtained.But few wouldconsiderthis, incontrast to the case of conscription,morally problematicbecause theperson has consented to undertake the obligationof fighting. This isobviously so even when the individualhas miscalculated the risks in-volved or had intended to desert; we would agree that to enforce theobligationby compelling him to stay in the battlefield,for instance, isprimafacie right.A quite similaridea, though it does not involve an obligation,is thebasis for the principleof the law of torts, recognized to some extent bymost legal systems, that the consent to assume a certainriskon the partof the injured partymay exclude the responsibilityof the tort-feasor orthe harm caused through the realizationof the risk. One applicationof

io. Leviathan, ed. Michael Oakeshott London:CollierMacmillan, 977), p. 2I8.



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the principle is represented by the well-known maxim volenti non fitinjuria. Here, as in the case of contracts,it is important o note that thedecisivefactor s not the expectationof somefactual consequences(whichcan only serve as evidence of the consent of the individual")but ratherthat the personhas consented to assume some normativeconsequences.The voluntaryact of the individualmust involve consent to exoneratethe other partyfromhis legal duties and liabilities.The situationgiven in all these cases can be described n the followingway: We have a voluntaryact which may or may not be intended tochange legal relationships. That act may have some factual conse-quences, such as the risk of suffering harm which the volunteer whoenlists in the armyor the gamblerwho places a bet or the person whoaccepts a lift froma drunkendriverbrings upon himself.As we shall seelater,the knowledgethat a factualconsequence maypossiblyfollowfroman act is not a morallyrelevant reason that justifies placing the legalburdensattachedto thatconsequence on an individual.Specifically,con-sent to run the risk of some harm does not necessarilyimplyconsent tosufferthat harm.But the actcan alsohave legalnormativeconsequences.It is a matterof law that in certaincircumstances saying voluntarily,"Ibind myself to pay to you one hundred dollarsfor your work," nvolvesthe obligationto pay one hundreddollars,that taking something volun-tarilyfrom the stall of the supermarketnvolves the obligation o pay theprice of the item, that knowinglyaccepting a lift froma drunkendriverinvolves(in one view) renouncing the right to obtaincompensation f anaccidentoccurs.When that particularegal consequenceof the voluntaryact is known by the agent, we may say that he has consented to it. Andit is that consent which is taken to be morallyrelevant and to justifyenforcingthe normativeconsequence in questionagainstthepersonwhohas consented to it. Anotherway of describingthe situation s to say thatthe consent to certain legalnormativeconsequences involvesmoralnor-mative consequences.'2 The individualwho, for instance, consents toundertakesome legal obligation s, in principle,morallyobligedto do theact which is the object of that obligation.

i i. See A. M. Honore,"Causation nd Remotenessof Damage," nternationalEncyclo-pediaofComparativeLaw (New York:OceanaPublications,n. d.), vol. i i, chap.7, p. I I4.I2. Dr.Joseph Raz suggested the distinctionsbetweenthe factual,the legal normative,and the moralnormativeconsequences of an act.



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IV.THE CONSENT TO ASSUME A LIABILITY TO PUNISHMENTIf we lookat the case of punishment, it is easy to find analogies with thecases mentioned above. Punishment is not something that befalls its'victim' hroughsome fortuitoushappening or the actions of thirdpartieswithout the possibility of control on his part. Among other things, it isthe productof the will of the personwho suffers it, at least when certainrequirementsrelated to the agent's state of mind aremet.Some authors suggest that there is a sense in which it is possible tosay that the criminalwants to be punished. That sense was explainedinsuch an obscure way that little was done to dissipate the instinctivereactionagainst the suggestion. It is as preposterous o think that crim-inals generally want to be punished as to think that volunteerswant todie in battle.A case of punishment, however,can be described n termspreservingthe analogy with either the case of contracts or the case in which theinjured party has consented to assume the risk of some harm. Here toowe must examine not the factual consequences of an offense but thenormativeones. We might say that a criminal brings the risk of beingpunisheduponhimself.Thishowever,providesas littlemoral ustificationfor actually punishing him as the fact that the volunteer brings uponhimself the risk of dying in battleprovidesa moral ustificationforkillinghim in battle.A necessary legal consequence of committing an offense is the loss ofimmunityfrompunishment that the personpreviouslyenjoyed.This lossof immunity is obviouslycorrelative-in Hohfeldian terms-to the legalpoweron the partof certainpublic officials to punish the offender.Theindividual who commits a crime assumes a legal liabilityto suffer pun-ishment and relinquishes the right that he would otherwise enjoy ofseeking compensationor criminallyprosecutingthe officialfor the dep-rivation of rights involvedin punishment.This is merely a descriptionin the simplest terms of the normativelegal situation in which the individualfinds himself aftercommittinganoffense. This descriptiondoes not itself providea moraljustificationforattaching these legal consequences to those acts. The fact that the of-fenderloses his legal immunityfrompunishment does not implythat healso loses the moral mmunityderivingfrom the principlethat it is primafacie wrong to sacrifice an individual for the benefit of others. The as-



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sertion that an offense involves losing this moral immunity must begrounded on something more than the mere fact that the law gives of-ficials the power to punish offenders.The individual who performs a voluntary act-an offense-knowingthat the loss of his legal immunity from punishment is a necessary con-sequence of thatact consents to that normativeconsequence in the sameway that a contracting party consents to the normative consequencesfollowing from the contract.This consent to assume a legal liabilitytosuffer punishment is, as in the case of contracts and in the voluntaryassumption of a risk, an irrevocable one, and it is independent of theattitudeof the agent toward he event which is the objectof the normativecharacterization.The individualmay believe that his actual punishmentis extremely improbable,or he may intend to evade it. This is irrelevantto his consent to lose his immunity from punishment, as is the attitudeof the gambler, who is sure that he will win or who intends to cheat, inrelation to his consent to undertake the obligation to pay the bet if heloses.Therefore, the relevant consent here is the consent to the normativeconsequences of the act, that is to say, in the case of an offense, theconsent to assume a liabilityto punishment.This consent is given whenthe act is voluntaryand the agent knowsthat the normativeconsequencein questionensues necessarilyfrom the performanceof the act.The merebelief that the liabilityto punishment (or, in general, any consequenceof the act) is a possibleorprobableoutcome of the actionis not sufficientin itself for concluding that the agent has consented to assume thatliability.This feature of the notion of consent is relevantin determiningwhether or not any consequence of a voluntaryact is consented to bythe agent. The belief that the consequence may possiblyfollowfrom theact may justify the assertion that the agent has consentedtorun the riskof generatingthat consequence, but it is not enough to supportthe con-clusion that the agent has consented tobringit about.This latter consentcannot be inferredfrom the former consent alone (though I think-butcannot argue here-that it can be inferredwhen, in addition,the agentis disposed to act the same in the counterfactualcase of foreseeing theconsequence as certain). This implies that a person who, for instance,unknowinglycommits an offense of strict liability,being aware that thelaw creates this sortof offense and that, consequently,a liabilityto pun-ishment may be a possible consequence of his acts, does not necessarily



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consent to assume thatliability.This view requiresmaking some plausiblemaneuvers, which I shall not undertakehere,I3 for dealing with crimesof negligence.My contention is that insofar as the agent's consent to forgo his im-munity against punishment is required before that punishment is im-posed, the gap in the moral justification of the practice, left by pure

considerationsof social protection,can be bridged.When the protectionof the community requires necessary and effective punitive measuresinvolving lesser harmsthan the harmfeared,the consent of the recipientof those measures makes an appealto an equitabledistributionof thoseburdens out of place. If the punishment is attached to a justifiable ob-ligation,if the authorities nvolved are legitimate,if the punishment de-prives the individualof goods he can alienate,and if it is a necessaryandeffective means of protectingthe community against greaterharms,thenthe fact that the individual has freely consented to make himself liableto that punishment (by performinga voluntaryact with the knowledgethat the relinquishment of his immunity is a necessary consequence ofit) providesa primafacie moral ustificationfor exercising the correlativelegal power of punishing him.The principle of distribution, which that moral justification presup-poses, is the same as that which justifies the distributionof advantagesand burdens ensuing from contracts and the distributionachievedin thelaw of torts when the burdens that follow from a tort are placed on theconsenting injured party.This justification of course presupposes thatseveral conditions have been satisfied. First, the person punished musthave been capableof preventingthe act to which the liability s attached(this excludes the rare case of punishing an innocent person that puresocial protection might allow). Second, the individual must have per-formed the act with knowledge of its relevantfactual properties.Third,he must have known that the undertakingof a liabilityto sufferpunish-ment was a necessary consequence of such an act. Thisobviously mpliesthat one must have knowledge of the law, and it also proscribes theimpositionof retroactivecriminal laws.

Because this is not the first time that the justificationof punishment13. The core of the account of the punishabilityof negligence,which I developedelse-where in my doctoraldissertation,does not differmuch from thatof J. L. Mackie n "TheGroundsof Responsibility," aw,Moralityand Society:Essays in Honourof H.L.A.Hart,ed. P.M.S. Hacker andJ. Raz (Oxford:OxfordUniversityPress, 1977), p. I84.



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has been connected with the requirementof subjectiveattitudes, I wouldlike to distinguish the thesis advancedhere from some others. I requiremore than a certain subjective attitudetoward the offense committed; Idemand a subjective attitude towardpunishment itself. (Indeed, it isprecisely the need for this latter attitude which justifies requiring par-ticularattitudes towardthe offense.) Furthermore,my requiring subjec-tive attitudes is not based on a utilitariancalculus, nor on the value ofsuch things as freedom of choice orpredictability f the future.'4Finally,I cannot agreewith currentretributivistviews which demandsubjectiveattitudes on the grounds that punishment should be a reaction againstan immoralact and,consequently, requiresawicked state ofmind(underthe justification of punishment suggested here, the blameworthinessofthe agent is as little relevant as it is in the case of contracts).'5V. SOME POSSIBLEOBJECTIONSThe variety of situationsin which this principle applies precludesraisingcertain objections against its applicationto punishment. It might be al-leged that in contracts the parties consent to undertakeobligations andto grantcorrelativerights, whereas all that the offenderconsents to is torelinquish an immunity. But, apart rom the fact thatit is not easy to seewhy this difference n the characterization f the normativeconsequencesshould have moral significance, one must recall that there are severalcontracts-like the contractof agency-some of whose consequences canbe described n termsofrelinquishingcertain mmunities.Itcould furtherbe said that the consent involved in the commission of an offense ismerelya unilateralmanifestationofwill ratherthan a bilateralagreement,as in the case of contracts.However,most legal systems attach normativeconsequences to unilateral acts involving consent (notable examples ofthese in English law are conveyances of land and declarationsof trust),and the doctrine of assumptionof risk by the injured party n the law oftorts is sometimes applicableto unilateral acts.'6 Finally,it could be al-

14. In this respect, among others, this view differs from that of H.L.A. Hart:see hisPunishment and Responsibility(Oxford:OxfordUniversityPress, I968).I 5. Inmy doctoraldissertation defended heopinion hat the liberalview, which excludesthe moralself-degradationfpeopleas a basis forthe State's nterferingwith theirconduct,impliesthat the blameworthiness f the agent should be disregarded, ot only as a sufficientcondition of punishment,but also as a necessaryone.i6. See A. M. Honore, "Causation nd Remoteness of Damage,"p. 117.



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30I A ConsensualTheoryof Punishment

leged thatthe consent to forgoone's immunity frompunishment is alwaysimplicit(the law does not attach thatnormativeconsequence to an explicitdeclarationto that effect), which marksa cleardifference from the caseof contracts, most of which require an explicit consent to the normativeeffects. Again the answer must be that there aremany contracts (in factmost of the contractsthat we undertake every day, such as traveling ona bus) where implicit consent is enough, and that the doctrine of as-sumptionof riskexpresslycontemplatescases of implicit consent.I7Fur-thermore, one may well argue that the difference between explicit andimplicit consent has no moralsignificance even in the case of contracts(quite apart, of course, from its relevance for dealing with evidentialproblems).The basic difference is that in the case of explicit consent thevoluntaryaction to which normativeconsequences are attachedis a spe-cific speech act performedwith the intention of generating normativeconsequences as a means to some further end, whereas in the case ofimplicit consent that action is an act of some other sortperformedwiththe knowledge that certain normativeconsequences will necessarily fol-low. Insofar as the action is voluntary and the normative effects areknown,the distinctive features mentioned do not seem tohave any moralrelevance to the justificationfor enforcing contracts.However,I am not denyingthatpunishment presentspeculiarities hatare not shared by other institutions covered by this principleof distri-bution. Punishment is threatened and not offered to individuals whocontemplatecommittinga crime. Furthermore,n contrastto the case ofcontracts,an alternativecourse of action open to the individualseekingto avoidpunishment involves compliancewith a legal restrictionwhichmay be perceivedby that person as a burden. Do these facts imply thatthe choice of the agentwho decides to commit a crimeassumingaliabilityto suffer punishment is not entirely free, and, therefore,that consent tothis consequence cannot be given?

The current discussion about the distinction between threats and of-fers, inauguratedin a lucid article by Nozick,i8illuminates our presentproblemlittle since it is oriented toward the elucidationof the case inwhich the threatenedpersondecidesnot todefythe threatbut todo what

17. Honore, "Causation," . 115.i8. RobertNozick,"Coercion,"n Philosophy,Politicsand Society, ed. P. Laslett,W. G.Runnciman,and Q. Skinner(Oxford:OxfordUniversityPress, 1972), p. 101.



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he is told. It does not followfrom the fact that the individual s coercedin the latter case that he is also coerced when he defies the threat. Onthe contrary,one wouldsay thatwhen he defies the threat,the individualis resisting coercion, and that this resistance, far from being unfree, isthe result of a great strength of will.Thereis, however,a perturbing spectof the distinctionbetweenthreatsand offers.Nozick calls ourattentionto the relevanceof lookingnot onlyat the choice the person who received a threat or an offer has, but alsoat the choice he would have made aboutmovingfroma situation n whichthe threator the offer had not been made to a situationto which it hasbeen.Is Accordingto Nozick, the fact that the threatenedperson wouldnot normallyhave chosen to go from the prethreat o the threatsituationwhereas the person who receives an offer would normallyhave chosentomovefrom the preoffer othe offersituation s decisivein discriminatingbetween the two cases in relation to the voluntarinessof that person'saction. This criterionseems to call into question the voluntarinessof theassumptionof a liabilityto punishment on the partof an offender,sincehe or she would not normallychoose to move froma situationin whichthe action is not punishable to a situationin which it is. However, thesame can be saidin the case of contracts,since a contractingpartywouldnormally prefer to achieve the object of his or her contractwithout en-tering into it and without the correlativeobligationsthat, in absence ofthe relevant egal rules (likepropertyaws), he wouldnot have toassume.If an offender might claim that the law coerces him into assuming aliabilityto punishment should he want a certainprohibitedadvantage,acontractingpartymight also claimthatthe law coerceshimintoacceptingthe terms of an offer should he want something over which the offererhas legal power. In the case of contractswe do not allow such a claimwhen the relevantlaws are consideredjust; the justificationof particulardistributionsbased on the free choices of the parties presupposes thefairness of the legal frameworkwithin which those choices are made.20The same can be said in the case of the criminallaw: a particulardis-tributionof punishment can only be justified on the basis of the consentof the recipients when the legal prohibitionof the act to which punish-ment is attached is just (it should not be, for instance, discriminatory

ig. See ibid., pp. I27ff.20. This presuppositionmight create some difficultiesfor those who seek to justify thefaimess of the legal frameworktself on the basis of consent.



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and should not proscribeactions thatpeople have the moral right to do).It is also important to consider the circumstance in which the actionrequired if one is to avoid the punishable action itself carries a certainburdenorrestriction.The analysisofa ratherpeculiarcase ofpunishmentwill illustratethe relevance of the consequences of the alternatechoiceof the individual n determining whether his assumption of punishmentis free. Suppose that the law makes punishable both an act and its omis-sion. So far, there is nothing in the characterizationof consent thatprecludes saying that, in a case like this, whatevercourse of action theindividualadopts,he consents to makehimself liable topunishment. Yet,the case is not substantiallydifferent from that in which the individualis punished for something over which he has no control, such as thecolorof his skin. One may proposesomefurtherqualificationof the rangeof actions which can be consented to by people. If voluntariness is ex-cluded when the action is empiricallynecessary, it should be excludedwith even greater reason when the action is logically necessary. Theprescriptionof a penalty for an action and its omission is equivalent tothe prescriptionof that penaltyfor the complex actionresulting from thedisjunction of the action and the omissionin question;and this complexaction is logicallynecessary.Quiteapart rom the abovequalification, hereis a substantiveprincipleunderlying our intuitive rejection of a case like the foregoing, whichapplies as well to differentsituations.Accordingto this principle,a lia-bility, burden, or obligation can only be justified on the basis of theconsent of the agent when the alternativecourse of action open to himeither does not involve any liability,burden, or obligation, or, if it does,those consequences can be justified, without recourse to the fact thatthe individualhas chosen this alternative.The idea behind this principleis, obviously, that the choice of a certain action is not free when thealternativeone implies relinquishing rights that the agent would other-wise enjoy; this is not the case when the burdensattached to the alter-native action are burdens that the individualought to assume, whetherhe consents to them ornot. This principleproscribesputtingindividualsin a situation such that, whatever they decide to do, their choice wouldbe taken as the basis for deprivingthem of certainrights.This principle has a general consequence with regard to the justifi-cation of the legal obligationswhich are compliedwith by the individualwho decides to avoid the liabilityto suffer punishment (and the further



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304 Philosophy & PublicAffairs

burdens and obligationswhich may follow fromthat compliance).Theycannot be justified by taking into account the decision not to forgo theimmunity from punishment. If they are justified at all, it should be onthe basis of reasons that areindependent of this choice.This consequence is obvious in the case of obligations such as thoserelated to killing, stealing, or raping. But it may be less obvious in thecase of other legal obligationsand restrictions.Take the case of conscrip-tion mentioned above, for instance. An individual who decides not toassume the liability opunishment attachedto the evasion of conscriptionchooses to comply with the requirementof military service, and this, inits turn, implies assuming a complex of specific duties and burdens(suchas wearing a militaryuniform).Onemaybe temptedtojustify compliancewith conscription and the assumption of the subsequent specific dutiesand burdens on the basis of the choice of the individual; n the end, heis not physically compelled to that compliance.But the principlewe arediscussing precludes that justification, since the opposite choice wouldimply certain penalties (both in the case of evading conscription alto-gether and of violatingthe subsequent duties), and those penaltiesneedto be justified on the basis of the consent of the agent. If conscriptionand the specific duties and burdens that it involves (as opposed to thepenalties attached to the violation of these duties) are at all justifiable,they must be justified on groundsother than the consentof the individual.This justification is, in its turn, necessary for justifying the penaltiesattached to the evasion of conscriptionand the violation of the militaryduties, in additionto the requirementthat the agent had consented tomake himself liable to those penalties.This principledoes not precludethe possibilitythat in some cases theobligation the individual complies with when he decides to avoid theliability osufferpunishmentcan be groundedon apreviousanddifferentchoice of the individual.This is so, forinstance, in the case of the armyvolunteer also mentioned earlier. If the volunteer decides to face theimpending battle, the subsequent restrictionson his freedomof actioncan be justified on the basis of his previouschoice to enlist in the army;the alternative o such a choice did not involveassuming any obligationsor burdens. But the choice to enlist was a differentchoice fromthat, forinstance, of facing a battle; this latter choice cannot by itself serve tojustify the restrictions on his freedom,since the oppositechoice (namely



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deserting) would be taken as grounds for justifying the correspondingpunishment.The case of the volunteer serves to clarifyan importantaspect of thegeneralthesis here advanced.The thesis does not involvethe hypothesisof a social contractin any of the varietiesdefended by politicalphiloso-phers. It does not rely on an explicit orimplicitacceptanceby the citizens

of the criminal aws imposingobligationsorstipulatingpenaltiesfornon-compliance.It does not assert that every case of punishment is like thecase of the punishment of the volunteerwho deserts, consequently vio-lating obligations he has previouslyvoluntarilyassumed. The groundson which the obligationsthat the offenderviolates can be justified areirrelevantto this thesis: they may be either consensual or independentof the consent of the people subject to them; in most cases, as in thecase of conscription r the obligationnot to kiliotherpeople,those groundsareindependent of a choice of the agent;in some exceptionalcases, suchas the case of the volunteer,those obligationsaregroundedon a previousand different choice from that of deciding to commit an offense. Thefocus of this thesis is on this latterchoice. Thejustificationofpunishmentdefended in this article relies on the consent to assume the liabilitytosuffer punishment involved in the voluntarycommission of an offensewith the knowledge that that liability s a necessary consequence of it.Obviously,followingout these suggestions would lead to a discussionof the extent to which the consent of the person affected can justifymeasures and politicalarrangementswhich may implyinequitable bur-dens upon him.21 I shall not develop this theme here; but I venture tosay that the discussion of the justificationof punishment could be con-siderablyexpanded and illuminatedif it embracedthis topic.If we think of the matter in this way, we will eventuallyunderstandthe truthbehind the superficialabsurdity hat criminalswant to be pun-ished. This claimis intended to support he idea that we punish criminalsas people, respecting their moral autonomy,and not as mere things tobe manipulated.22 would like to put the matter the other way round:

21. See some interestingremarksabout the extent to which hypotheticalconsent mayor may not justify certain arrangementsor measures in RonaldDworkin, "TheOriginalPositions,"n ReadingRawls, ed. NormanDaniels(Oxford:OxfordUniversityPress,1975).22. See JonathanGlover'sdiscussion on manipulation n Responsibility London:Rout-ledge & KeganPaul, 1955), pp. I55ff.



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unless we rely on the moral autonomy of the individual,making hisliabilityto punishment depend on his free and conscious undertakingofit, all the burdensimposed on offenders,even in the name of treatment,would be unfair even if they are not accompaniedby tangible counter-vailing benefits. Otherwise such burdens would be exacted gratuitouslyfor the exclusive profitof others and would fall under Kant's condem-nation of practices which treat men only as means and not as ends inthemselves.23I think that it is in keeping with Kant'sspiritthoughnot with his letter,to interpretthat condemnationas applicablenot to every use of punish-ment as a measure of social protectionbut only to those uses that fail totake into account the individual'sconsent. Only when that consent isrespecteddowe treat ndividualsas ends, since onlythen dowe recognizetheir own ends.

23. Philosophyof Law, trans. W. Hastie(Edinburgh,I887), pp. I95-98.This article is a modifiedversion of one chapter of my thesis submittedto OxfordUni-versity or the DoctorofPhilosophydegree. Iexpressmygratitude oProfessorA. M.Honore,Dr.J. M.Finnis,ProfessorH.L.A.Hart,andDr. P. F. Skegg, fortheir lluminatingcommentsand criticisms.My thanks are also due to the Editorsof Philosophy& PublicAffairsfortheirvery helpfuladvice.

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A Consensual Theory of Punishment