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.


    List of Abbreviations


    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




    Conceptualising the Common: Tacit consent & Intelligibility



    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



    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’



    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



    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





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