The Logic of Consent : The Diversity and Deceptiveness of Consent as a Defense to Criminal Conduct book cover
1st Edition

The Logic of Consent
The Diversity and Deceptiveness of Consent as a Defense to Criminal Conduct

ISBN 9781138270763
Published November 17, 2016 by Routledge
392 Pages

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Book Description

The Logic of Consent analyzes the varied nature of consent arguments in criminal law and examines the confusions that commonly arise from the failure of legislatures, courts and commentators to understand them. Peter Westen skillfully argues that the conceptual aspect accounts for a significant number of the difficulties that legislatures, courts and scholars have with consent in criminal cases; he observes that consent masquerades as a single kind of event when, in reality, it refers to diverse and sometimes mutually exclusive kinds of events. Specifically, consent is used in law to refer to three pairs of contrasting kinds of events: factual versus legal, attitudinal versus expressive, and prescriptive versus imputed. While Westen takes no position on whether the substance of existing defenses of consent in criminal law ought to be enlarged or reduced in scope, he examines each of these contrasting events and analyzes the normative confusions they produce.

Table of Contents

Contents: Introduction. Factual Consent: Introduction; A core conception of consent: an attitude of factual acquiescence; An expression of factual acquiescence. Legal Consent: Introduction; Offenses to which consent is a defense; Prescriptive consent: an attitude or an expression?; Prescriptive attitudinal consent; Non-contemporaneous prescriptive consent; Imputed consent. The Consequences of Conceptual Complexity: Introduction; The confusions of consent; Conclusion; Bibliography, Index of cases; Index.

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Peter Westen is Professor of Law at the University of Michigan Law School, USA.


'Peter Westen has taken on one of the most difficult conceptual and practical problems in the law: If consent can change a prohibited act into a permitted one, what is consent's nature, how is consent manifested, and what conditions make its legal effectiveness possible and impossible? Anyone who is interested in the many issues to which consent is relevant, and particularly the law of rape, should read this extremely well argued, comprehensive, and readable book.' Professor Larry Alexander, University of San Diego School of Law, USA 'Peter Westen provides an admirably thorough and careful analysis of the different things that "consent" can mean, both within and outside the law - an analysis that is interesting in its own right, but also crucial if we are to avoid the confusions into which, as he shows, courts and theorists have so often fallen, and reach a better understanding of what "consent" should mean in the different legal contexts in which it matters.' Professor Antony Duff, University of Stirling, UK 'The Logic of Consent is both substantively and stylistically a welcome addition...postgraduate students in law, society and gender studies, as well as law professors and pracatitioners, will find The Logic of Consent an excellent source for discussion.' The Law and Politics Book Review 'Peter Westen's The Logic of Consent is nothing short of a tour de force...a sumptuous read, its pages brimming with lively cases, colorful examples, and crisp analytic moves that reveal entrenched doctinal confusions. One finishes it with a sense of breathlessness, as though one has finally come to a halt after the professional analogue of an arduous hike through tremendously interesting terrain. I recommend this hike to all who enjoy rigorous intellectual workouts in areas fraught with conceptual obstacles and rich in normative and doctinal significance.' Michigan Law Review