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The Moral Limits of the Criminal Law Volume 3: Harm to Self$
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Joel Feinberg

Print publication date: 1989

Print ISBN-13: 9780195059236

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/0195059239.001.0001

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Consent and Its Counterfeits

Consent and Its Counterfeits

Chapter:
(p.172) 22 Consent and Its Counterfeits
Source:
The Moral Limits of the Criminal Law Volume 3: Harm to Self
Author(s):

Joel Feinberg

Publisher:
Oxford University Press
DOI:10.1093/0195059239.003.0006

The dilemmas of legal paternalism arise in their most complicated forms in two‐party cases. Legislatures using a soft paternalistic strategy often enact laws, for instance, in the cases of suicide, drug sales, prostitution, etc., in which the reason for disallowing X's consent as a defense for Y's criminal conduct is that X's agreement must be overruled for his own good, which the state presumes to know better than he. Where actual consent can be determined at little cost, mere presumed dispositional consent will not be sufficient to transfer any responsibility to Y for X's act, or to deprive Y of his rightful grievance after the fact. Feinberg examines the nature and effect of consent, and considers when consent is problematic, in the light of the soft paternalist strategy in two‐party cases.

Keywords:   consent, paternalism, two‐party cases

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