Consent, punishment, and proportionality

Abstract

The consensual theory of punishment attempts to reconcile liberal values by replacing moral desert with individual consent as the primary justification for penal sanctions. By framing the voluntary commission of a crime as an act of tacit consent to its prescribed legal consequences, this framework seeks to justify punishment without relying on assessments of moral character or utilitarian sacrifices. However, the model fails to establish a robust principle of proportionality. If consent is the sole metric for justifiability, then any sanction—regardless of its severity relative to the offense—is rendered legitimate once the actor proceeds with knowledge of the law. This logic implies that even extreme punishments for trivial crimes are morally permissible, as the offender’s choice effectively waives the right to a proportionate response. Furthermore, because consent serves as a total justification, it potentially bypasses the cost-benefit limitations that might otherwise restrict excessive state violence. The lack of an inherent limit on severity within the consensual model highlights a fundamental tension in liberal legal philosophy, suggesting that some form of retributive desert remains necessary to provide a stable limiting principle against draconian penal systems. – AI-generated abstract.