Limits on consent in penal law flow not just from traditional criminal law problems such as consensual harms in the law of assault, but also from the way that regulatory offenses limit individuals’ ability to contract out of or to consent to departures from their requirements. For a Kantian who understands the justification of public power as connected only to the task of providing a rightful condition for free and purposive agents, these limits, and the police power from which they flow, are puzzling. It is not obvious, for example, how a fully consensual departure from a safety regulation or the mere possession of a firearm is inconsistent with the freedom and purposiveness of all. The possibility of penally enforced regulatory law, of Kantian police, can be explained as follows. The task of a legal order in a rightful condition includes the enactment of those public laws that are required for the creation or maintenance of a rightful condition but that cannot be understood purely in terms of protecting one private person’s purposiveness from the intrusion of other private persons. The regulatory law that is justified by these public tasks will frequently have a paternalistic appearance and therefore will frequently disregard the consent of the persons to whom it applies. But these limits on consent are characteristically by-products of its necessarily public nature rather than part of its justification.
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