connection between harm and consent: if something is harmful to other people then
we should be prevented from engaging in it. But if the state were justified in
interfering in consensual, albeit harmful, activities between consenting adults then
the space in which people could associate would be severely restricted. Consent to
be harmed is central to our case study – consensual sadomasochism – and we turn
to it at the end of the chapter.Harm to self – paternalism
Consenting to be harmed amounts to harming oneself and raises the issue of whether
the state ought to protect people against themselves – that is, whether the state
should act paternalistically. For example, having an age of consent for various
activities amounts to a judgement that a person – or group of people, such as children- are incapable of giving consent, or, at least, informedconsent. Richard Arneson
defines paternalism in this way:
Paternalistic policies are restrictions on a person’s liberty which are justified
exclusively by consideration of that person’s own good or welfare, and which
are carried out either against his present will(when his present will is not explicitly
overridden by his own prior commitment) or against his prior commitment(when
his present will is explicitly overridden by his own prior commitment).
(Arneson, 1980: 471, emphasis added)
Present will is straightforward: it means what you want to do now. Prior
commitment is a decision made at time tto be prevented from doing x at t + 1(or,
alternatively, made to do y at t + 1). To take a trivial example: you nowempower
someone to force you to get up tomorrow morning. Arneson thinks that forcing
someone to do something for which they granted prior authorisation does not
amount to paternalism. But what if we were to extend the idea of authorisation (or
consent)? We might say that a 6-year-old child sent to school in floods of tears
really consented to go to school because the 20 year old she will become would be
glad that she – as a 6 year old – was forced to go to school. Because the 6 year old
and the 20 year old are the same person then it is possible to argue that the child
hypotheticallyconsents to go to school.
However, the implications of such an argument for paternalism towards adults
should also be acknowledged. This can be illustrated by an extreme case. In 2001
computer technician Armin Meiwes killed and partially ate IT professional Bernd
Brandes at the former’s home in Eastern Germany. Meiwes had advertised on the
Web for a man willing to be killed and eaten, and eventually he met up with Brandes,
who (it appears) consented to be killed. In 2004 Meiwes was convicted of
manslaughter but not murder and sentenced to eight-and-a-half years in prison,
although in 2006, as a result of a prosecution appeal, Meiwes was sentenced to life
imprisonment for murder. In both trials Brandes’s consent was taken as relevant to
the case. In 2004 the prosecution struggled to prove that Brandes had not consented.
In 2006 the prosecution succeeded in convincing the court that in the final stages
of life Brandes could not have consented, and Meiwes’s failure to get medical help
constituted non-consensual killing. Putting to one side issues about German law,
we can pose a political–philosophical question: was it right to punish Meiwes? Why
44 Part 1 Classical ideas