It's Good to be Autonomous: Prospective Consent, Retrospective Consent, and the Foundation of Consent in the Criminal Law [Book Review]
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
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Criminal Law and Philosophy 5 (3):377-398 (2011)
What is the foundation of consent in the criminal law? Classically liberal commentators have offered at least three distinct theories. J.S. Mill contends we value consent because individuals are the best judges of their own interests. Joel Feinberg argues an individual’s consent matters because she has a right to autonomy based on her intrinsic sovereignty over her own life. Joseph Raz also focuses on autonomy, but argues that society values autonomy as a constituent element of individual well-being, which it is the state’s duty to promote. The criminal law’s approach to the problem of non-contemporaneous consent—prospective consent and retrospective consent—casts a unique light on the differences among these three justifications. Peter Westen claims neither Mill’s nor Feinberg’s justifications for consent fully explains how non-contemporaneous consent is treated in the criminal law. Specifically, Mill’s “self-interest” conception explains the criminal law’s limited recognition of prospective consent, but cannot explain its total rejection of retrospective consent. Conversely, Feinberg’s “sovereign autonomy” conception explains why the criminal law rejects retrospective consent, but cannot explain why the law recognizes irrevocable prospective consent only in limited circumstances. I resolve this dilemma by explaining that Raz’s “autonomy is good” conception is consistent with both the criminal law’s limited recognition of irrevocable prospective consent and its total rejection of retrospective consent. This suggests the existing criminal law embodies Raz’s theory that it is the duty of the state to promote morality, in particular the moral good of individual well-being through living autonomously. In contrast, the criminal law’s treatment of consent would have to be modified if it were to reflect Mill’s “self-interest” conception, or Feinberg’s “sovereign autonomy” conception
|Keywords||Consent Autonomy Criminal law Harm Prospective consent Retrospective consent|
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References found in this work BETA
Joseph Raz (1986). The Morality of Freedom. Oxford University Press.
John Stuart Mill (2009). On Liberty. In Steven M. Cahn (ed.), Philosophical Quarterly. Oxford University Press 519-522.
John Stuart Mill (1999). On Liberty. Broadview Press.
Heidi M. Hurd (1996). The Moral Magic of Consent. Legal Theory 2 (2):121-146.
Franklin G. Miller & Alan Wertheimer (eds.) (2010). The Ethics of Consent: Theory and Practice. Oxford University Press.
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