It's Good to be Autonomous: Prospective Consent, Retrospective Consent, and the Foundation of Consent in the Criminal Law [Book Review]

Criminal Law and Philosophy 5 (3):377-398 (2011)
Abstract
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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DOI 10.1007/s11572-011-9126-9
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References found in this work BETA
The Morality of Freedom.Joseph Raz - 1986 - Oxford University Press.
On Liberty.Mill John Stuart - 1956 - In Steven M. Cahn (ed.), Philosophical Quarterly. Oxford University Press. pp. 519-522.
Consent to Sexual Relations.Alan Wertheimer - 2006 - Law and Philosophy 25 (2):267-287.
The Moral Magic of Consent.Heidi M. Hurd - 1996 - Legal Theory 2 (2):121-146.

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