Consent and probation: An analogy with contract law

Abstract

The Journal EJprob recently published a special issue on consent in sentencing. The EPR (2010) refer to consent on numerous occasions, and in most legal systems consent is required at the sentencing stage. However, in many cases, the alternative is custody, which raises concerns over how freely consent is given and whether it is a mere formal exercise. Social scientists have tried to theorise consent building on compliance, legitimacy of justice, or notions such as therapeutic alliance and offender agency. Some have deplored the existence of a ‘contractual governance’. This article shall argue that a renewed analysis of contract law has the potential to respect offenders’ agency and their right to govern their own lives, whilst taking stock of their need for treatment and compensating for their vulnerable condition. It shows that more rather than less contract is needed in order to avoid both punitive governance and neo-paternalism.