Abstract

IMBRISEVIC, Miroslav. Carlos nino's conception of consent in crime. Diacrítica [online]. 2013, vol.27, n.2, pp.103-124. ISSN 0807-8967.

In this paper I discuss the nature of consent in general, and as it applies to Carlos Nino’s consensual theory of punishment. For Nino the criminal’s consent to change her legal-normative status is a form of implied consent. I distinguish three types of implied consent: 1) implied consent which is based on an operative convention (i.e. tacit consent); 2) implied consent where there is no operative convention; 3) “direct consent” to the legal-normative consequences of a proscribed act - this is the consent which Nino employs. I argue that Nino’s conception of consent in crime exhibits many common features of “everyday” consent, which justify that it be classed as a form of (implied) consent. Thus, Nino is right to claim that the consent in crime is similar to the consent in contracts and to the consent to assume a risk in tort law.

Keywords : Carlos Nino; consent; crime; punishment.

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