Carlos Nino's Consensual Theory of Punishment

This thesis is an exegesis and evaluation of Carlos Nino's Consensual Theory of Punishment. Nino (1943-1993) first published 'A Consensual Theory of Punishment' in 1983. There has been little engagement with Nino's theory, and this makes it an appropriate subject for study. For Nino the purpose of the institution of punishment is consequential: a reduction of future harm in society. But there is a side-constraint: only those individuals who consented to the legal-normative consequences of their wrong-doing may be punished, i.e. only those who committed a crime voluntarily and knowingly. Children and the mentally handicapped cannot give valid consent. Equally, individuals who were coerced into wrong-doing cannot be said to consent to the legal-normative consequences of their acts. And Nino's theory also presupposes the offender's knowledge of the law. An individual who does not know that there are legal-normative consequences attached to their proposed act, cannot be said to consent to these normative consequences. The criminal does not consent to being punished, but rather to a change in her normative status. By committing a crime, the wrong-doer consents to the legal-normative consequences, which are necessarily attached to it: liability to punishment. This brings about moral-normative consequences for society/the state: it is now permissible to punish the criminal.