Law and Consent Contesting the Common Sense

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