Victimless Conduct and the Volenti Maxim: How Consent Works
Criminal Law and Philosophy, Vol. 7, No. 1, January 2013
37 Pages Posted: 7 May 2013 Last revised: 11 May 2013
Date Written: 2013
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 one¹s conduct: cases in which one is consent-insensitive to the rational force of another¹s consent, and cases in which one acts for sadistic reasons.
Keywords: Consent, moral conduct
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