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Carlos Nino's Consensual Theory of Punishment Miroslav Andrija View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Heythrop College Publications 1 Carlos Nino's Consensual Theory of Punishment Miroslav Andrija Imbrisevic Heythrop College/University of London thesis submitted for the degree of Doctor of Philosophy September 2013 2 Dedicated to my late wife Joanna Helen Buchan (1957-2007) 3 Abstract: 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. Nino's central claim is that the wrong-doer, by committing an illegal act, changes her normative status. The normative default position for everyone is: immunity from punishment. By committing a crime the normative status changes from being immune from punishment to being liable to punishment. If caught and convicted, this 'assumption of liability' would be decisive for the justification of punishing an offender; and at the same time society is not using the offender as merely a means to and end. Nino is concerned not to violate Kant's Humanity Formula of the Categorical Imperative in his justification of punishment. 4 For Nino the institution of punishment is side-constrained by principles of justice which are operative in a fair legal-framework. These principles limit the unqualified pursuit of that aim and they constitute safeguards against using individuals are mere means to an end. The requirement of consent to the legal-normative consequences of wrong-doing, before the imposition of punishment, is one such safeguard. In the process of giving an exegesis of Nino's theory and of evaluating critical responses to Nino, I suggest additions/clarification whenever Nino himself does not provide an answer. Apart from explaining and evaluating Nino's theory I also defend and develop it. 5 Acknowledgements My interest in philosophy was first fostered by Herr Thomas (a Catholic priest) at the Wirtschaftsgymnasium in Hanau. During my undergraduate degree at Mainz University my most influential teachers were Josef Schmucker-Hartmann, who introduced me to St. Anselm, and Peter Baumanns (visiting from Bonn), who introduced me to Kant and to John L. Austin. My PhD supervisor, Patrick Riordan (also a Catholic priest), began to guide my studies in political philosophy while I was doing my MA at Heythrop. And he continued to guide my philosophical thinking and writing during my PhD, always good-humoured, patient, conscientious, demandingly critical and encouraging when necessary. I am grateful to Patrick Riordan for his generous support during my PhD. He fully deserves the title 'Doktorvater'. Over the years I have presented important sections of my thesis at the Philosophy Students' Research Seminar at Heythrop. I am grateful to my fellow students for their insights, but above all to Michael Lacewing for guiding the discussions, focusing on the central issues and helping me to clarify my ideas. Michael also kindly read my final draft and gave me very helpful feedback. I also wish to thank the following for information (about Nino), discussion, criticism and encouragement: Elizabeth Burns, Ted Honderich, Joseph Raz, Thomas Scanlon, Marshall Cohen, Anthony Baxter, Sarah Pawlett-Jackson, Matthew Kramer, Thomas Crowther, Clare Davies, Tony Honoré, Daniel Woodley, Göran Duus-Otterström, Sonia Roca Royes, Alfonso Donoso, Alice Pinheiro Walla and my Argentinian friends Gustavo Beade and Lucas Arrimada. 6 Thesis Declaration Form (This form must be completed and submitted at the same time that you submit your Examination Entry Form) The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without the prior written consent of the author. A thesis which is accepted by the College for the award of a Research Degree is placed in the Library of the College, and an electronic copy may be placed in an open access institutional e-repository. The copyright of the thesis is retained by the author. As you are about to submit a thesis for a Research Degree, you are required to sign the declarations below. The declarations will be destroyed if your thesis is not approved by the examiners, being either rejected or referred for revision. Director of Research To be completed by the candidate NAME IN FULL (Block Capitals or typed) Miroslav Andrija Imbrisevic TITLE OF THESIS Carlos Nino's Consensual Theory of Punishment DEGREE FOR WHICH THESIS IS PRESENTED PhD COPYRIGHT DECLARATION1 1. I agree that the thesis presented by me in 2013 for examination for the PhD Degree of the University of London shall, if a degree is awarded, be deposited in the library or electronic institutional repository of Heythrop College and that, subject to the conditions set out below, my thesis will be made available for public reference, inter-library loan and copying. 2. I authorise the College authorities to retain a digital copy of the abstract of my thesis for inclusion in any published list of theses offered for higher degrees in British universities or in any supplement thereto, or for consultation in any central file of abstracts of such theses. 3. I authorise the College Library, or its designated agents, to hold a digital copy of my thesis for the purposes of electronic public access, inter-library loan or the supply of copies. 4. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. 5. I understand that in the event of my thesis not being approved by the examiners this declaration will become void. Date .................................. Signature .................................................................................................. 1 The University’s Ordinances make provision for restriction of access to an MPhil/PhD thesis and/or the abstract but only in certain specified circumstances and for a maximum period of two years. If you wish to apply for such restriction, please enquire about the conditions and procedures. 7 PLAGIARISM DECLARATION 1. I certify that the work presented in this thesis contains no unacknowledged direct copying from the work of another person or close paraphrasing of previous work (including my own which has been presented elsewhere) and that any reference to other sources has been properly acknowledged in the bibliography according to academic custom and practice. Date .................................. Signature .................................................................................................. 8 Table of Contents: 1: Introduction p. 9 2: A Preliminary Characterisation of Carlos Nino's Theory p. 20 3: The Nature of Consent p. 44 4: Is Nino a Hartian? – Nicola Lacey p. 67 5: Threats and Offers – Robert Nozick p. 90 6: Proportionality – Larry Alexander p. 124 7: Ignorance of the Law – David Boonin p. 141 8: The Explicit Denial Objection – David Boonin p. 160 9: The Forfeiture View – Thomas Scanlon p. 173 10: Full-Bodied Consent – Thomas Scanlon p. 192 11: The Criminal Dissents – Ted Honderich p. 201 12: Conclusion p. 224 Bibliography p. 232 9 1: Introduction Carlos Nino Carlos Santiago Nino (1943–1993) was an Argentinian legal scholar who suggested a new solution to the problem of punishment: 'A Consensual Theory of Punishment' (1983). The offender, by committing a crime, at the same time consents to the legal- normative consequences of crime, which are necessarily attached to it. She does not consent to the punishment, rather, she consents to change her normative status. Before the crime the offender enjoyed immunity from punishment. By breaking the law she consents to a loss of immunity from punishment. For Nino this consent gives the state a moral licence to punish. Nino completed a DPhil thesis (on the topic of criminal law adjudication) in 1976 under the direction of Tony Honoré and John Finnis. Apart from legal issues Nino also wrote about moral philosophy (The Ethics of Human Rights [1991b] and about political philosophy (The Constitution of Deliberative Democracy [1996a]). When Argentina elected a democratic government in 1983, Nino was legal advisor to the President Raúl Alfonsín. Nino taught law at the University of Buenos Aires and was regularly a visiting professor at Yale University. Nino first formulated his theory as part of his DPhil thesis. Seven years later he published it in Philosophy and Public Affairs. And subsequently he included his theory of punishment as a chapter in The Ethics of Human Rights (1991b), with some minor stylistic changes and brief responses to Larry Alexander and Thomas Scanlon. Nino's theory of punishment has not been widely discussed, neither in the Anglo- American world nor in the Spanish speaking world, although some of the commentators recognise its merit (Honderich 2006: 48): 'a more clear-headed and less speculative theory'. This undeserved neglect in the literature is my reason for choosing Nino's theory of punishment as my topic.
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