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

By Deryck Beyleveld

Consent positive aspects pervasively in either ethical and criminal discourse as a justifying cause. acknowledged easily, the place there's consent, there could be no criticism. besides the fact that, with no transparent appreciation of the character of a consent-based justification, its integrity, either in precept and in perform, is susceptible to be compromised. This booklet examines the position of consent as a procedural justification, discussing the must haves for an enough consent — particularly, that an agent with the correct means has made an unforced and educated selection, that the consent has been basically signaled, and that the scope of the authorization covers the act in query. The publication is going directly to spotlight either the Fallacy of Necessity (where there isn't any consent, there has to be a unsuitable) and the Fallacy of Sufficiency (where there's consent, there can't be a wrong). eventually, 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 booklet acts as a corrective, making a choice on quite a number abusive or erroneous practices that variously under-value or over-value consent, that fictionalize it or which are fixated by means of it, and that deal with it too casually or too carefully.

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Whichever way one plays it doctrinally, however, cases such as these present a tension between the obvious convenience of carrying out the additional surgery and waiting until one has a proper explicit and specific consent. 18. We discuss questions of scope and interpretation in ch 7. 81 See eg Murray v Haringay Arena Ltd [1951] 2 KB 529 (raising an issue about the defence of volenti non fit injuria in relation to a child spectator at an ice hockey match). 82 [1933] 3 DLR 260. 83 [1949] 2 DLR 442 (BCSC).

This might mean, for instance, that the information sheets supplied to participants are somewhat economical with the truth (saying only that the project is for research that is of potential public benefit and not mentioning the possibility of commercial exploitation of the research); that the terms of the consent will be broadly drawn (so that researchers do not need to keep returning to participants to vary and extend their consent); and that any opportunity to withdraw will not be highlighted.

23; and Williams, n 70 above, at 80–81. 78 (1989) 54 CCC (3d) 121, where the defendant was accused of common assault under s 244 of the Criminal Code, which prohibits the intentional application of force ‘without the consent of another person’. 79 Once we think in these terms, however, the nature of the exercise has seemingly changed; for we are now drawing lines (on public policy grounds) beyond which, possible subjective consent notwithstanding, violent play is off-limits (as is the case with regard to, say, duelling and prize-fighting).

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