Autonomy is Good for You: Prospective Consent, Retrospective Consent, and the Foundations of Consent in the Criminal Law

What is the foundation of consent in the criminal law? In his book, The Logic of Consent, Peter Westen claims neither of the two classic philosophical accounts of consent fully explains how consent is treated in the criminal law. Focusing on the doctrines of prospective consent and retrospective consent, Westen identifies this dilemma: J.S. Mill’s conception of consent (that individuals are the best judges of their own interests) explains how the criminal law treats prospective consent, but cannot explain its treatment of retrospective consent. In contrast, Joel Feinberg’s conception of consent (that individuals have a sovereign right to autonomy) suffers from the opposite problem: it explains how the criminal law treats retrospective consent, but cannot explain how it treats prospective consent. This article resolves Westen’s dilemma by identifying a third, distinct conception of consent, articulated by Joseph Raz. Raz argues that we value consent because the state of being autonomous is a constituent element of the good life. The doctrines of prospective and retrospective consent illustrate how Raz’s conception is distinct from either Mill’s or Feinberg’s conceptions of consent. Moreover, Raz’s theory of consent is consistent with, and thus can provide a foundation for, the way the criminal law treats prospective and retrospective consent. I also discuss some of the implications for the criminal law if one accepts Raz’s account of consent. For example, some paternalistic laws might be justified under Raz’s account.