Witmer-Rich Publishes “It’s Good to be Autonomous: Prospective Consent, Retrospective Consent, and the Foundation of Consent in the Criminal Law”

Professor Jonathan Witmer-Rich

In his recently published article, “It’s Good to be Autonomous: Prospective Consent, Retrospective Consent, and the Foundation of Consent in the Criminal Law,” C|M|LAW Professor Jonathan Witmer-Rich searches for the foundation of consent in the criminal law.  In this quest, he assesses the thoughts of classically liberal commentators who have offered at least three distinct theories.  J.S. Mill contends we value consent because individuals are the best judges of their own interests. Joel Feinberg argues an individual’s consent matters because she has a right to autonomy based on her intrinsic sovereignty over her own life. Joseph Raz also focuses on autonomy, but argues that society values autonomy as a constituent element of individual well-being, which it is the state’s duty to promote.

The criminal law’s approach to the problem of non-contemporaneous consent—prospective consent and retrospective consent—casts a unique light on the differences among these three justifications. Witmer-Rich notes that Peter Westen claims that neither Mill’s nor Feinberg’s justifications for consent fully explain how non-contemporaneous consent is treated in the criminal law. Specifically, Mill’s “self-interest” conception explains the criminal law’s limited recognition of prospective consent, but cannot explain its total rejection of retrospective consent. Conversely, Feinberg’s “sovereign autonomy”conception explains why the criminal law rejects retrospective consent, but cannot explain why the law recognizes irrevocable prospective consent only in limited circumstances.

Witmer-Rich resolves this dilemma by explaining that Raz’s “autonomy is good” conception is consistent with both the criminal law’s limited recognition of irrevocable prospective consent and its total rejection of retrospective consent. This suggests the existing criminal law embodies Raz’s theory that it is the duty of the state to promote morality, in particular the moral good of individual well-being through living autonomously. In contrast, the criminal law’s treatment of consent would have to be modified if it were to reflect Mill’s “self-interest” conception, or Feinberg’s “sovereign autonomy” conception.

The journal, “Criminal Law and Philosophy,” is a peer-reviewed international journal for philosophy of crime, criminal law, and punishment.  It is edited by Douglas Husak and R.A. Duff.   Founded in 2007, it publishes work by American and international law professors, philosophers, and criminologists.  “Criminal Law and Philosophy” regularly publishes articles by leading criminal law theorists, such as Heidi Hurd, Andrew Ashworth, Peter Westen, Michael S. Moore, Kimberly Ferzan, and Larry Alexander.

The article is available on SSRN at http://ssrn.com/abstract=1856203. For libraries, institutions and their patrons who hold a SpringerLink license, Professor Witmer-Rich’s article is also available via ‘Online First’ on SpringerLink at http://www.springerlink.com/openurl.asp?genre=article&id=doi:10.1007/s11572-011-9126-9

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