1st Edition

Law and Consent Contesting the Common Sense

By Karla O'Regan Copyright 2020
    238 Pages
    by Routledge

    238 Pages
    by Routledge

    Consent is used in many different social and legal contexts with the pervasive



    understanding that it is, and has always been, about autonomy – but has it?



    Beginning with an overview of consent’s role in law today, this book investigates



    the doctrine’s inseparable association with personal autonomy and its effect



    in producing both idealised and demonised forms of personhood and agency.



    This prompts a search for alternative understandings of consent. Through an



    exploration of sexual offences in Antiquity, medical practice in the Middle Ages,



    and the regulation of bodily harm on the present-day sports field, this book



    demonstrates that, in contrast to its common sense story of autonomy, consent



    more often operates as an act of submission than as a form of personal freedom



    or agency. The book explores the implications of this counter-narrative for the



    law’s contemporary uses of consent, arguing that the kind of freedom consent is



    meant to enact might be foreclosed by the very frame in which we think about



    autonomy itself.



    This book will be of interest to scholars of many aspects of law, history, and



    feminism as well as students of criminal law, bioethics, and political theory.

    TABLE OF CONTENTS





    List of Abbreviations



    Introduction



    Law & Consent: A Tale of Contradictions



    Consent’s Autonomy Story



    Methodology: A Juridical Genealogy of Consent



    Charting the Course: A Chapter Outline



     



    Chapter 1: The Common Sense of consent



    Mediated Magic: Paternalism and its Paradox



    The Parameters of Consent: Productive Preconditions



    Voluntariness



    Knowledge



    Rationality



    Conceptualising the Common: Tacit consent & Intelligibility



    Conclusion



     



    Chapter 2: Ancient SEx



    Regulating Sex Among the Ancients



    Offences of hubris



    Offences of bia/raptus



    Offences of moicheia/stuprum



    Ancient Outlaws: Unintelligible Acts



    (Post)Modern Reflections



    Conclusion



     



    Chapter 3: Medieval Medicine



    Medieval Medicine: A Monastic Enterprise



    Regulating Access



    Theory over Practice



    Christian Alignment



    Medieval Doctors & their Patients: A Match made in Heaven



    the Medieval Doctor-Patient Relationship: ‘The Way, The Truth & the LIght’



    Conclusion



     



    Chapter 4: Modern Sport



    Harmful Horseplay: Consent & Contact Sports



    Foul Play: Fighting in Sports



    ‘No sissy stuff’: Harm & Hegemonic Masculinity in Sport



    Capitalism with the Gloves off: Consent & Body Capital in Sport



    Conclusion



     



    Chapter 5: The Political Economy of Consent



    Neoliberal Rationality: Touched by an Invisible Hand



    The Market Rationality: An Origin-less Story



    The Neoliberal Subject: A Normative Ontology



    Consent within a Capitalist Logic: Revisiting Criminal & Medical Law



    Social Utility in a Neoliberal World



    The Capacity to Consent: An Act of Self-governance



    Conclusion





    Conclusion





    Index

    Biography

    Karla M. O'Regan is an Associate Professor of Criminology and Criminal Justice at St. Thomas University, Canada.