Understanding acts of consent: Using speech act theory to help resolve moral dilemmas and legal disputes

Law and Philosophy 23 (5):495-525 (2004)
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Abstract

Understanding what it means to consent is of considerable importance since significant moral issues depend on how this act is defined. For instance, determining whether consent has occurred is the deciding factor in sexual assault cases; its proper occurrence is a necessary condition for federally funded human subject research. Even though most theorists recognize the legal and moral importance of consent, there is still little agreement concerning how consent should be defined, or whether different domains involving consent demand context-specific definitions. Understanding what it means to consent is further complicated by the fact that current legal conceptions are not necessarily grounded in argument; they typically depend on appeals to authority and precedent. The purpose of this paper is to use speech act theory to provide a theoretically grounded conception of consent; such a conception can aid in the just resolution of legal and moral disputes that hinge on whether an act of consent occurred.

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