In this paper I take another look at the view, defended by C. Nino, that we may punish criminals because, by knowingly breaking a law, they have consented to becoming liable to the prescribed punishment. I will first rebut the criticisms usually aimed at this view in the literature, aiming to show that they are inconclusive. They are all efforts to show that criminal offenders in fact do not consent to becoming liable to punishment simply by committing crimes. I then (...) turn to a different line of criticism, which I find more promising. I argue that the moral power of effecting normative changes by consenting reflects the power holder’s value as a person, and show how this idea makes sense of how refusal to recognize that power wrongs a person. I then argue that the “power” of consenting to punishability does not fit that model, and is better explained as reflecting the value of other people, whom the offender has wronged. Hence the power of consenting is not involved in typical cases of wrongdoing. (shrink)

Boonin examines more than a dozen theories of punishment and offers perhaps the most systematic argument that the legal practice of punishment is probably unjustified. This provocative claim comes at a time when US prisons face unsustainable population growth and high recidivism rates. In place of punishment, Boonin offers an account of ‘compulsory victim restitution’. Responses to Boonin have focused on the merits of his theory of restitution or have defended a single particular theory of punishment from his objections. The (...) present paper offers a more comprehensive response, which finds a critical fault in the crux of Boonin’s argument: the ‘entailment test’. If the practice of punishment is unjustified, it is not for the reasons Boonin gives. (shrink)

Resumen Tanto el concepto típicamente utilitarista de protección social como el concepto típicamente kantiano de consentimiento ocupan un lugar central en la estrategia que ensaya C. S. Nino para justificar la institución del castigo. Sin embargo, en este trabajo intentaré demostrar que ambos conceptos son irreconciliables. La encrucijada, en cualquier caso, es la siguiente: mientras el primer concepto, interpretado a la luz de la teoría ética del autor, parece tornar innecesaria la apelación al segundo concepto, una interpretación alternativa del primer (...) concepto tampoco nos situaría ante un mejor panorama filosófico.In the present article I aim to show that the meaning of the first concept, as well as the Kantian concept becomes truly intelligible only when we manage to read Nino’s penal theory in the light of his own ethical theory. Thus, on the hypothesis that this is indeed the best possible reading, the strategy tried out by Nino will have to face a difficult crossroads: either adopt a concept of social protection that will definitely displace the notion of consent from the justifying plane where the theory operates; or embrace a broader idea of protection where the notion of consent finds a less uncomfortable place. As will be argued, none of the alternatives is without its problems. (shrink)

The present paper constitutes a critique of David Alm’s article “Punishment, Consent and Value”, in which it is argued that the consensual theory of punishment defended by C. S. Nino is false. Whilst Alm believes that this theory is grounded on an inadequate model of normative relations, here I will defend the hypothesis that such an assessment derives from an insufficient conception of human value and respect.