Everyone's Got Something They Just Can't Give Up: A Challenge to Feinberg's Adherence to the Volenti Maxim.

摘要

In this paper, I challenge Joel Feinberg's in-principle unconditional adherence to the Volenti maxim, which states, roughly, that to he who consents, no wrong is done. Given the resources available in his theory of when a community can legitimately use the criminal law to prohibit actions, it seems that Feinberg need not hold that a person's consent always nullifies the wrong done to her. Through the lens of a particularly troubling case, I attempt to demonstrate that Feinberg can and should accept, given his prioritization of the doctrine of sovereign self-rule, that there are limits to consent's ability to nullify wrongdoing. I conclude by showing that accepting limitations on the Volenti maxim is not only consistent with Feinberg's theory, but actually enables his theory to consider a range of problematic cases in a fresh light.