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Home > Journals > Michigan Law Review > MLR > Volume 103 > Issue 6 (2005)

 

Abstract

Peter Westen's The Logic of Consent is nothing short of a tour de force. In the tradition of the very best and most significant contributions to legal theory, Professor Westen demonstrates that we do not know what we think we know about a capacity that on a daily basis turns trespasses into dinner parties, brutal batteries into football games, rape into lovemaking, and the commercial appropriation of name and likeness into biography. While we all employ claims of consent in everyday moral gossip to absolve some and withhold sympathy from others, and while courts of law across the nation commonly predicate legal rights and responsibilities on findings of consent or its absence, Professor Westen convincingly proves that (1) we do not share, either individually or institutionally, a common concept of consent; (2) a number of the competing conceptions of consent that are regularly employed (sometimes simultaneously by the same person or court) are either, in themselves, conceptually incoherent, or are frequently combined in ways that produce conceptual confusion; and (3) our failure to sort out our conceptual confusions results in gross injustices and inequities as we punish the innocent and acquit the guilty. Frankly speaking, when one agrees to review a book one privately hopes for two things: that the book will not offer so many points of disagreement as to make one's review feel like a remedial exercise (giving rise to the "so many confusions, so little time" response); and that it will offer enough points of disagreement to provide one with grounds for serious debate with the author. If I have one disappointment with Professor Westen's marvelous book, it is that I can find too little with which to disagree! And this is a book of sufficient philosophical daring to deserve more feisty debate than I find myself able to muster.

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