Consent in the Law (Legal Theory Today) by Deryck Beyleveld

By Deryck Beyleveld

Consent gains pervasively in either ethical and criminal discourse as a justifying cause. said easily, the place there's consent, there could be no grievance. despite the fact that, with out a transparent appreciation of the character of a consent-based justification, its integrity, either in precept and in perform, is susceptible to be compromised. This publication examines the function of consent as a procedural justification, discussing the must haves for an enough consent - specifically, that an agent with the appropriate ability has made an unforced and educated selection, that the consent has been in actual fact signaled, and that the scope of the authorization covers the act in query. The ebook is going directly to spotlight either the Fallacy of Necessity (where there's no consent, there needs to be a unsuitable) and the Fallacy of Sufficiency (where there's consent, there can't be a wrong). ultimately, the level to which the authority of legislations itself rests on consent is taken into account. If the familiarity of consent-based justification engenders confusion and contempt, the research during this e-book acts as a corrective, making a choice on various abusive or inaccurate practices that variously under-value or over-value consent, that fictionalize it or which are fixated by way of it, and that deal with it too casually or too carefully.

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In the rights community, it has become a mantra to insist that consent must be free and informed. However, unforced choice and informed choice are just two elements—granted, very important elements—in a larger theory setting the criteria for an adequate consent. Given that consent operates to effect a significant lowering of the rights-holder’s shield (by authorising the duty-bearer to act in a way that would otherwise involve a violation of right)96, rights theorists will be much influenced by the importance of ensuring that the party who appears to be consenting really intends to do just that.

Having 56 Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961. For discussion, see ch 9. ’ The import of this controversial provision is spelt out in para 291 of the explanatory notes accompanying the legislation: This section enables the Secretary of State to make regulations for and in connection with requiring or regulating the processing of patient information in prescribed circumstances. This will make it possible for patients to receive more information about their clinical care and for confidential patient information to be lawfully processed without informed consent [our emphasis] to support prescribed activities such as cancer registries.

Treating the rightsholder as the one whose consent counts is not a matter of assuring others that we are not returning to the days of the press-gang; to consent or not is an entitlement that is personal to the rights-holder. Where the rights-holder is not in a position to consent (perhaps being unconscious at the relevant time), the consent of others is not a second best; it is no kind of justifying consent. To consent or not is the personal prerogative of the relevant rightsholder. 97 Of course, even if there is a degree of constancy in the relationship between a rights-led ethical approach and consent, the details of what we see through the lens of such an ethic will depend to a considerable extent on the substance of the rights recognised by the particular version of rights theory adopted.

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