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It's Good To Be Autonomous: Prospective Consent, Retrospective Consent, And The Foundation Of Consent In The Criminal Law, Jonathan Witmer-Rich
It's Good To Be Autonomous: Prospective Consent, Retrospective Consent, And The Foundation Of Consent In The Criminal Law, Jonathan Witmer-Rich
Law Faculty Articles and Essays
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 …