Mixed methods

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nevertheless, minor setbacks to the financial interests of others still threaten the general security of property, and the orderliness and predictability of financial affairs in which everyone has an interest however small.Based on this, those security interests that cushion our welfare interests can be protected. For instance, commonassaultsarecriminalized to protect our elementary sense ofsecurity. Beyond the bare minimum of health and economic well-being required to pursue his aims, a person requires a certain additional safety margin. Withoutthat margin, the personmay be ableto function, (welfare interests) but only barely so.

What is clear in this sub-section is that the relationship between welfare and ulterior interests and the possible mediating role of criminal law in this relationship is complex.

Particularly, as with any individual‘s conception of the good life, ulterior interests as Feinberg presents them seem impossibly difficult to estimate and assign ordering.

Feinberg himself concedes this, though he argues that, by definition, welfare interests (as well as some interests conducive to ulterior interests) are necessary to satisfying any condition of ulterior interests.⁶⁰This notwithstanding, it is logical to end this section by surmising that according to Feinberg, welfare interests conducive to ulterior interests, require preventative measures against harm.

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prevention of wrongful harm can justify coercion, he [Mill] held, and what a person consents to is not

‗harm‘ in the requisite sense. It follows from these premises that no one can rightly intervene to prevent a responsible adult from voluntarily doing something that will harm only himself (for such a harm is not a

‗wrong‘), and also that one person cannot properly be prevented from doing something that will harm another when the latter has voluntarily assumed the risk of harm himself through his free and informed consent.⁶²

For Feinberg, the sense in which one‘s consent transformsthe moral quality of another‘s conduct is captured by the volenti maxim: volenti nonfit injuria (to one who consents, no wrong is done).⁶³

However,Feinberg recognizesthat the volenti maxim itself is imprecise and requires further elaboration. Unfortunately, however, he often seems conflicted in his own interpretation of the volentimaxim - offering at least three different accounts of what the maxim means.In one attempt to explain the meaning of the volenti maxim, Feinberg claims that consent transforms the consenter into the agent who is responsible for the action itself.⁶⁴This transfer of responsibility, Feinberg claims, is the result of the fact that one‘s consent authorizes the other‘s conduct. On this interpretation then, the volenti maxim is better understood to mean: if one consents to being harmed, then one harms oneself. To his credit, Feinberg is careful not to claim that the transfer of responsibility is total. Rather, he claims that the consenting subject becomes jointly responsible with the other party as the co-agent of the harmful conduct. Still, even Feinberg admits that this transfer-of-responsibility interpretation of the volenti maxim is ―somewhat strained‖

when it comes to cases involving physical violence.⁶⁵ Surely he is right to acknowledge as much, for if B consents to A punching him in the face, it makes little sense to think that B has, in effect, punched himself.

Another way Feinberg explains the import of the volenti maxim is by claiming that one‘s consent ―causes the forfeiture of his right after the fact to complain that [the other

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person‘s] act wronged him.‖⁶⁶ This interpretation offers a plausible account of how one‘s consent affects his own moral situation - specifically, it tells us that one who consents has no standing to complain about the harm done to him. Thus, if B consents to A punching him in the face, B has no standing to complain about A‘s conduct. However, this interpretation does little to explain how one‘s consent affects the moral situation of the person to whom he consented. The fact that B has no standing to complain against A does not tell us whether A has done anything wrong to B - it simply tells us that, even if A has done something wrong to B, then B is not entitled to complain about it.

This loss-of-standing interpretation of the volenti maxim has the advantage of been considerably less strained than Feinberg‘s transfer-of-responsibility interpretation. Still, the loss-of-standing interpretation does not seem able to explain the normative force of consent in a way that is relevant to a proper understanding of the moral limits of the criminal law. Rather, the loss of-standing interpretation seems far better suited to delineating the moral limits of tort law, where the question of the harmed-person‘s standing to complain is central. In criminal law, as distinct from tort, the party with standing to complain against wrongful conduct is the State - not the injured party. Thus, if B consents to A‘s punching him, the fact that B‘sconsent strips B of standing to complain against A is of no consequence to criminal law - for, in criminal law, B has no standing to complain against A in any event. Rather, in criminal law, only the State has standing to complain against A‘sconduct. ⁶⁷ If our ultimate inquiry is whether the State may justifiably criminalize A‘s conduct, then we should focus our attention on the normative force of B‘sconsent insofar as it affects the moral quality of A‘s conduct. We gain little insight into this matter by simply observing that B loses his standing to complain about A‘s conduct, for such an observation tells us only about the moral situation of harmed person (B) and not the moral situation of the person who inflicted the harm (A).

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In his more illuminating moments, Feinberg interprets the Volenti maxim to mean that one‘s consent transforms the moral quality of the other person‘s conduct - changing it from conduct that wrongs the consenter into conduct that does not wrong him.⁶⁷ This moral-transformation interpretation of the Volenti maxim is preferable to the ―somewhat strained‖ interpretation discussed above, because it provides a more satisfying explanation of cases involving physical violence. As noted above, if B consents to A punching him in the face, it makes little sense to think that B has, in effect, punched himself. Rather, it makes better sense to think that A has indeed punched B - but that A‘s conduct is not wrong in the same sense that it would have been wrong absent B‘s consent. Moreover, the moral-transformation interpretation of the volenti maxim is preferable to the loss-of-standing interpretation discussed above, because it maintains our focus on the moral quality of A‘s conduct. Specifically, according to this interpretation, if B consents to A punching him, then A‘s conduct does not constitute a wrong by A against B.

The moral transformation that may be occasioned by B‘s consent to A is best explained in terms of the two kinds of Feinbergian harms discussed and adopted above. The first kind of harm, identified by the subscript 1 (harm1), refers to all set-backs to interests;

whereas the second kind of harm, identified by the subscript 2 (harm2), refers only to those set-backs to interests that are also wrongs to the harmed person. As Feinberg explains it, to say that ―A harms1 B‖ means ―A adversely affects B‘s interest‖; whereas to say ―A harms2 B‖ means ―A adversely affects B‘s interest and in so doing wrongs B.‖⁶⁸

Building on this distinction, Feinberg explains his view that cases of consensual harming always involve harm1, rather than harm2. Moreover, he explains, the only sense in which B is the victim of A‘s harmful conduct toward him involves cases in which A harms2 B.

Thus, according to Feinberg, when B consents to A‘s harmful conduct toward him, A‘s conduct does not wrong B - in the sense that it does not take B as its victim.⁶⁹

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