Karla ORegan - Law and Consent: Contesting the Common Sense

Consent is everywhere. It regulates our relationships with social and political institutions, with one another, and even with our own bodies. The wide variety of issues that consent is assigned to adjudicate suggests that it means - and does - different things in different contexts. This stands in stark contrast to the common sense claim that is often made about consent as a story of universal freedom, a tale of free will and inalienable agency. The common sense of consent is that it is, and has always been, about autonomy. But has it? Has consent ever had other meanings, in other contexts or time periods? What is achieved when the meaning of consent is positioned as a matter of common sense? What does this apparent transparency keep obscure? Moreover, is personal autonomy the outcome of consent laws today? Or is this promise of freedom simply an illusion? What happens to the laws and norms that govern our relationships with one another when this magic of consent is tested? 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 kind of personal freedom or agency. The book explores the implications of this counter-narrative for a number of contemporary legal fields, including criminal, medical, and private law, 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.