Article II. Formulation and Arguments of the Conclusion

Without exception, this principle holds: “No injury is done to one who knows and consents.” Rule of Law 27 in the Sext. Cf. law 145, Digest, On Rules of Law.

142. I. THE STATE OF THE QUESTION. 1. THE POSITION CONCERNS the truth and force of the maxim which is proposed in the rules of both canon and civil law. We contend that it holds universally.

In order that the meaning of the assertion may be well perceived, one must place before one’s eyes an action unjust of itself: a purchase below the just price, an insult, the wounding of another’s body. We establish that, through the consent of him whose right is invaded, the character of injury by which one would otherwise sin against him is removed: not as though that action thereby always becomes licit or at least just; much less as though the agent thereby acquires a right to do it; but because that action cannot be formally unjust in relation to him who has given consent. These distinctions must be carefully noted, lest an occasion for error be taken from confusion.

2. THE TERMS ARE EXPLAINED, since the remaining things are already established.

To one who knows. This word could be omitted from the maxim without harm. Perhaps it is interwoven into it because in the Rule of Law it is presented thus: “Neither injury nor fraud is done to one who knows and consents,” and the word fraud corresponds more closely to the words one who knows. The meaning then would be: neither is fraud done to one who knows, nor injury to one who consents.

But if you prefer to assign its proper force to each word, knowledge excludes ignorance and inadvertence; consent excludes impediments of the will.

And consents. We understand consent that is: a) Morally spontaneous, that is, vitiated by no ignorance or fear and extorted by no necessity; and indeed b) Positive, not the merely negative permission of someone who does not resist or flee. Moreover, c) Consent must be directed not to the effect—for example, a death which is desired—but to the action itself by which harm is inflicted. The one consenting, however, need not approve this action, but it is sufficient that he will that nothing stand in the way on the part of his own right,¹ as if you were to say to someone prepared to kill you: “In order to diminish your guilt, I do not will to oppose my right to life, and on this part I do not resist.”

¹ Cf. C. de Lugo, disp. 8, no. 14.

Finally, d) we posit persevering consent; for in illicit matters there not rarely remains to the one consenting the continuing faculty of revoking consent.

It is further required that consent be given by a person naturally capable. For the consent of an insane person or an infant is morally null.

No injury is done. We admonish again that we do not say that such an action becomes morally upright, much less that a right has been acquired to do it, but that at least the objective malice of injury (against commutative justice) as regards the one consenting is removed from that action.

The objective malice, I say; for example, the guilt of formal injury would certainly have to be imputed subjectively to him who, in ignorance of the consent of the injured person, performed an act injurious of itself.

Observe that, if you wish to speak aptly, injury must be taken for an action formally violating another’s right, while what is unjust is said both materially and formally. Moreover, whether force is employed, or fraud and deceit—these being the two modes of injury—it comes to the same thing.

143. II. PROOF OF THE THESIS.

A principle which coheres with the essence of the thing holds without exception.

But. This principle coheres with the essence of injury: no injury is done to one who consents.

Therefore. It holds without exception.

The minor is proved by the same reasonings which manifest the truth of the maxim. We shall propose these two, the first of which we borrow from St. Thomas.

1) Injury is not done formally to him who does not suffer injury.

In other words, in order that an action be terminatively injurious, it is necessary that it be received in the terminus as an injury.

But. He who consents in the manner we have stated does not suffer injury. Therefore.

The minor is proved. It is repugnant that someone under the same respect be agent and patient (St. Thomas, II-II, q. 59, art. 3, corpus).

But. With regard to an action which is done according to our will, such as one to which we consent, we are agents rather than patients. “For the proper principle of acting in men is the will.” (St. Thomas, loc. cit.)

Therefore. It is repugnant that with regard to that action we be patients. But to suffer an action is prior to suffering it as injurious.

This is confirmed by this observation. There is no repugnance in the will by which injury is admitted being a command or a consent such as the principal author of an action is accustomed to have: suppose that you command another to kill you. But the principal author of an action must participate in all the guilt of the action, and consequently in the malice of injury, if there was any. Yet it is otherwise established that no one can do an injury to himself.

2) Injury signifies an action repugnant to a right which actually exists and perseveres.

But. The right of one who plainly consents to an action cannot actually persevere. Therefore.

Proof of the minor. A right does not actually persevere beyond the rationale of right, which is that a man’s personal independence be preserved. But this is plainly preserved so long as the property of a man who is unwilling in some respect is protected; and it remains intact through every action to which someone has freely consented.

Therefore. An action of this kind is not opposed to a right which actually perseveres.

This is confirmed. Because injury is a certain moral violence, which cannot exist without at least some interpretive resistance on the part of him who sustains it.

144. III. DIFFICULTIES.

1. THE CONSENT OF HIM WHOSE RIGHT IS INVADED CANNOT REMOVE THE RATIONALE OF INJURY. For:

a) He in relation to whom equality is departed from formally suffers injury. But. The consent of him whose right is invaded does not prevent equality from being departed from in relation to him. Therefore.

Reply. I concede the major. I deny the minor. For by that consent equality is changed, since things (in the broad sense) are possessed through the will (St. Thomas, here, reply to obj. 1). The equality of which there is discussion is that which is owed according to right. (Cf. no. 17.) But nothing is now owed according to right to him who has positively willed not to use his right.

b) No one does what is unjust except to someone suffering what is unjust. Therefore. If someone wills to do what is unjust, whether the other consents or not, the latter suffers what is unjust.

Reply. Except to someone suffering what is unjust quasi-materially or formally, I concede; formally, I deny, as above.

If one of the contracting parties has observed the other using fraud and deceit, and inwardly consents, although he who employs the fraud formally does what is unjust, the former suffers only quasi-materially. And conversely, as St. Thomas observes, he who unknowingly does what is unjust does so materially against someone who, if unwilling, will suffer it formally.

c) He who pays a robber the money promised does so willingly, and yet suffers injury. Therefore.

Reply. He wills it, but with a will which is mixed with an involuntary element from fear.

2. THE EFFICACY OF THIS CONSENT IS NOT UNIVERSAL. For:

a) “There are cases in which a man cannot yield his right. Thus nature requires that the conjugal right be entirely inalienable.” (Gury, vol. 1, no. 600.) But. Then consent is invalid. Therefore. It does not prevent the one consenting from suffering injury.

Reply. I deny the supposition. A confusion which has been a cause of error to many appears here. For the effect in question, an alienation of the right is by no means necessary; the actual non-use of this right suffices.

Instance. But. Nor can that use validly be renounced.

For Innocent XI condemned this proposition under no. 50: “Intercourse with a married woman, with the husband consenting, is not adultery.” Gury, ibid.

Reply. The proposition affirming that such intercourse becomes mere fornication is condemned, as is evident from the end: “and therefore it suffices in confession to say that one has fornicated,” I concede; the proposition affirming that such intercourse is adultery under another rationale is condemned, I deny.

For although we judge that adultery committed with the consent of the other spouse differs specifically from adultery committed without that consent, we by no means assimilate it to simple fornication. A threefold violation stands in the way: of the bond, of the sacrament, and, certainly often, of the rights of legitimate offspring. Cf. C. de Lugo, loc. cit., no. 10.

b) He who kills himself, or another who consents, is punished by God and often by human law.

Reply. As unjust to himself or to this other person, I deny; as unjust to God and to the State, and as abandoning other duties, I concede.

In a homicide which is committed with the assent, indeed at the request, of him who is killed, there remains guilt which cannot be separated from suicide.

c) A ward suffers formal injury if you retain his thing which he willingly delivered to you, since without the will of his guardian he cannot validly donate it. Therefore.

Reply. I distinguish the major. That ward suffers injury so long as he consents that the thing remain with you, I deny; after, with his will changed, he wills to have it again, I concede.

Moreover, observe that we are already proceeding here outside the supposition. For we are treating of a person who is sui iuris, or who possesses his things through his own will. Someone is objected whose will, by positive law, must be supplied by the will of a guardian in relation to the exercise of rights.

Moreover, provided that the will is naturally capable, the principle still holds. For the effect of an invalidating civil law comes down to this: that there is no transfer of right; but so long as the consent of him whose natural capacity is established perseveres, no injury is done to him. Therefore, neither do we agree with C. de Lugo when he excepts the case of civil incapacity.

Instance. Yet it could happen that human law renders the ward’s will entirely invalid and positively forbids from justice that anything be accepted from the ward. But. What human law could do for the benefit of a ward, natural law has effected concerning the will of anyone in relation to certain rights.

Reply. Passing over the major, I deny the minor. For this is by no means proved. Moreover, because this disposition would be universal, it would change the very rationale of right, while the exception whose cause is the weakness of a certain special will preserves this rationale intact. The latter is accidental; the former would be per se.