Prof. M. H-Evans Université de Reims. Prolegomena: Just a thought ‘By giving his consent a person exposes himself as a first person subject’ (Marzano,

Consent & Probation: An Analogy with Contracts

(focus on contracts’ formation)

Prof. M. H-EvansUniversité de Reims

Prolegomena: Just a thought

‘By giving his consent a person exposes himself as a first person subject’

(Marzano, I Consent, therefore I am [Je consens, donc je suis…] 2005: 13

Origin of this essayFrench authorsCasorla, 1999; Danti-Juan, 2001, Menu, 2004: contractualisation de la peine (sentences’ contractulation or contractualisation or contractualization)Xavier Pin (2002) : criminal law contractualisation

= a movement whereby criminal law becomes more consensual Lawyers drawing general parallels with contracts law

Raynor: offenders’ consent may be of a contractual nature (1985, 1993Also see Nelken ( 1987) re social work.

When I was younger I was a private law major and Itaught contracts for 8 years + had started a PhD in private international law re contracts formation (comparative) before I left for murky sentences waters

Origin of this essay

Special December 2014 ed. of Ejprob on consent. Maria Anagnostaki = GreeceRob Canton = England & WalesPeter Raynor = England & WalesBerit Johnsen & Anette Storgaard = Denmark Ines Sučić, Neven Ricijaš & Renata Glavak-Tkalić: Croatia Beth Weaver & Monica Barry = high risk offenders

With an introduction (and chaired by): Christine Morgenstern & Gwen Robinson

With ample reference to, inter alia, compliance literature (Bottoms; McNeill & Robinson...) and desistance literature (agency)

Origin of this essay

All excellent stuff acknowledging that consent is increasingly sought. Focusing on the positive (respect, care, substantive compliance, agency) and the negative (manipulation; superficial consent…)

For years I had promised myself I would go back to my contractual roots, and revisit this issue with a lawyer’s eyes. Rather than making general comparisons with contracts (‘it’s a lot like contracts’), the idea would be to really look into the details of what contracts are and see whether legal theory fits with sentences and… see what comes out of this ‘promenade’.

Approach : modern contracts

What has always struck me was that people who talked about contractualisation talked about a traditional contract, in some cases a contract that does not correspond to legal theory.

In the best case scenario they would talk about a pre-industrial contractual relationship where each party is supposedly equal in power, reason, and knowledge and they draw the conclusion that contracts law does not fit as offenders are not the equals of the CJS.

But modern contracts and modern contracts law are removed from this ideal classic model. They have long taken stock of the inequality of contractual relationships.

* history of legal obligations (contracts)

ApproachA legal and theoretical essay; not an empirical research. Drawing upon a variety of different literatures- Bien sûr: compliance, desistance, and all the ref.

quoted in Ejprob’s special ed. - classic and modern contracts’ theory and

literature- - medicine and psychiatry literature on consent- - specialised philosophers who have concentrated

on consentAnd also…

ApproachFocusing on modern French (mainly) and continental Europe contracts law (also) with incursions into UK and US contracts law.

Why continental? It is much more structured, much more organised and complete than common law contracts law. Our contracts’ law system is based on Roman contracts law, considered as being one of their best legal achievement. But it has been modernised particularly : - In the 19th century with the industrial revolution; - In the 20th century with the consumer & labour revolutions.

Also: Roman law is at the root of ALL European Contracts Law systems (Rampelberg, 2005)

How?So I embarked on a systematic study of what makes a contract in Roman based contracts legal systems and what it could mean for sentences & probation.

Drawing on classic and modernised contracts, and the other references I have mentioned. I systematically weaved into this analysis Ejpob’s articles as many of the authors had referred at one point or another to one aspect or another of legal theory.

For this presentation I shall only focus on contracts’ formation; not on their execution (hopefully see forthcoming article for Ejprob for the rest of it)

Contract formationDefinitely the most fascinating part of contracts law. How does one go from: ‘I propose’ or ‘I wish’ to ‘I am legally bound’ ?

Philosophy: Consent is a state of mind and a ‘communicative act (Kleinig, 2010)

Legal theory. A contract is ‘a meeting of wills’

Classic 19th century legal theory: ‘consent is law’ (Rampelberg, 2005)Fundamental principle: Pacta Sunt Servanda (contracts oblige)

Classic contract: consent whether true, honest, biased, not fully convinced, or idiotic (eg paying 1000 euros for a broken bike), is valid and obliges.

Different contracts… & their formationUnilateral: two or more parties, where only one promises and is obliged but both accept (rare)Not the case with sentences: as the CJS will be doing something &/or promise support

Synallagmatic: two or more parties, where both promise something. The purest, and also the most frequent form of contracts is synallagmatic

Contracts are formed by the meeting of the two wills. One proposes; the other acceptsOr two propose; their wills meet (negotiation) and they both consent.

Sentencing and probationThe CJS (as an institution) is one contractor; the offender is the other. The CJS proposes (community work, probation, release, EM – although sometimes the offender proposes a release plan) and the offender accepts or does not accept.

On this basis a series of questions arise pertaining to contract formation.

Capacity to consent An essential part of contract formation If the person is not capable to consent (minor; mentally ill with legal protection;

animals; French 19th century married women, thanks Napoleon!) then the contract IS NOT FORMED. It does not exist. It thus does not need to be cancelled as it never existed in the first place.

Capacity is (in theory) a protective mechanism. It provides protection for the weak. But in many cases = a form of domination (e.g. married women)

Legally most offenders have retained their legal capacity. Whether they are, in many cases, weak, is undisputable. However, capacity is not the mechanism we want here as it implies the person is mentally inferior and his will must not be taken into account and someone else should take over.

Capacity and the right to consent are inherent to respect for one’s dignity and autonomy.

* N. Damaschino, The legal incapacity of married women, PhD thesis Paris, 1854

Autonomy of will (classic)

‘Autonomy of Will’= a central concept in classic contracts.Legal theory: seeing the person as responsible, autonomous, having agency. Contracts oblige because people are deemed free and autonomous, as having the right to make their own decisions. Þ Continental contracts law is thus heavily influenced by

Kant’s perception of human dignity and autonomy (1780)Þ Pact sunt servanda and autonomy is however also a

theory of individualism (Waline, 1949) and, therefore of capitalism (free entreprise).

Autonomy of will (modern)

Opposite and modern theories : ‘contractual solidarism’ (Demogue, 1923; Gounot, 1912): in the real world, people are not equal.Unsurprisingly: these new theories have emerged at the end of the

19th and at the beginning of the 20th century with the industrial revolution.

In the real world, most contracts are not the result of two equal men shaking hands; they are (often monopolistically) offered by a big capitalistic entity which forces mandatory conditions (most of the time unfavourable) onto the consumer or worker ,who either contracts or does not but cannot discuss the terms (adhesion contracts)

=> if basic continental general theory of contracts has not been modified, it has, in many ways, been adapted to this new reality.

Modern contracts’ formation: (super) duty to inform

Philosophy: consent only exists so long as it is informed (Mallardi, 2005).

First: general adaptation to the general theory of contract (19th, early 20th c.) Then total reshaping of specialised legal fields (second half of the 20th c.): Labour law Consumer law And... Crucial to us: health contracts

According to French legal theorists, these legal fields (and increasingly general contracts law) have developed a protective mechanism called the principle of ‘super information’ (Fabre-Magnan, 1992). = The informed and knowledgeable party must ‘super’ inform the other, and make sure he understands (well theorised in health contracts where the therapeutic alliance is also a key issue)

=>very powerful consequence if transposed to sentencing and probation: consent is valid if super informed and fully understood.

Sučić, Ricijaš & Glavak-Tkalić (2014): information should not be superficial or merely formal, else we are at risk of encountering ‘active resistance’ rather than adhesion.

Duty to inform and health contracts Health contracts are extremely interesting for sentencing & probation - ARE indeed contracts: Court of Cassation, Civil Chamber, May 20, 1936, Mercier case; - Same issue of therapeutic alliance; - same issue of mandatory intervention and treatment; - same issue with the risk for welfare to descend into paternalism .

Paternalism is the opposite of treating people respectfully as free and rational agentsIn sentencing and probation ideally we want: offender’s consent, and adhesion; we also want them to comply and collaborate. This cannot happen if we manipulate, (‘EM is great you’ll stay home’) force (‘this is what you have to do full stop’), or behave like ‘I know better than you what is best for you’

‘[I]t is possible that autonomy does not mean indifference, and that benefaction does not mean paternalism’ (Descarpentries, 2005: p. 71

Again, this is only possible with fair, objective, information, and making sure the person understands, whilst not trying to force, con or manipulate.

Martine: I would add Legal advice should always be sought for such important decisions. This requires a fair trial (present with sentencing, not always for release decisions)Former French law required an attorney to be present before a person could consent to EM (still the case for minors).

Issue of legal aid…

Bona fides Here contracts law, again can help: with its other concepts

of cause, consideration, object and… integrity of consent.

1) Bona fides (Latin) or ‘cause’ (French) or consideration (England)

French civil code (art. 1131): ‘[a]n obligation without cause, based on a false cause, or on an illicit cause, cannot have any effect’.

People contract in view of a gain: something must derived from it and it must be licit (e.g. selling drugs = not a valid contract)

Offender: not going to prison; being supported; getting treatment… (if you really get it…)

Object 2) Object contracts must have a determinate ‘object’ (art. 1129 French Civil

Code) Object must exist. It must be possible. Selling a trip to the moon is not.

Modern contracts: illegal clauses. Consumer law: abusive clauses are null and void. In CJ terms, this corresponds to what Weaver and Barry call ‘unreasonable conditions’ (2014: p. 285)

Sanction: only the clause is cancelled.

Is consent to harm valid? After all probation is painful (Durnescu, 2011)Uncertain legal waters here: some legal systems say no; others say : ‘volenti non fit injuria’ (to a willing person injury is not done)

Vitiated consent (intégrité du consentement)

Philosophers: no consent where it is obtained through coercion or manipulation (Faden & Beauchamp, 1986).

(French) Latin derived law: no consent where there is a legitimate error, dolus, or violence (i.e. error, manipulation or coercion).

3) Error: contract nor formed if the person has made a genuine but serious mistake, that anyone (bonus pater familias; in concreto analysis) would have made, on an essential element of the contract and would not have contracted had he/she not made that mistake.

E.g. one consents to community work but learns later what the work consists in?

= contracts cancellation very very rare on such a basis.

Vitiated consent (intégrité du consentement)

2) Dolus One of the contractors dupes, and/or manipulates the other into consent: puts on a show; hides important facts, lies… Can in some cases constitute fraud in the criminal law sense.

Fraus omnia corrumpit (fraud corrupts all)

E.g.: Hiding important facts: sentencing the offender to treatment only for him to discover later what it consists in? One consents to EM but is only told about its stringent curfew hours afterwards? (we’re also back to super information)

Vitiated consent (intégrité du consentement)

3) Coercion (violence) or duressHere consent has been extorted through threat, or violenceArticle 1112 of the French civil code: there is violence when ‘violence’ is such that it can have an impact on a ‘reasonable person’ (the bonus pater familias), who can reasonably think that he will be exposed to a considerable negative impact on his person or his fortune. (nearly identical definition given by philosophers: (Faden & Beauchamp, 1986)

Sentencing: community sentences are offered in exchange for incarceration: incarceration definitely belongs to the ‘violence’ category!

But… violence must be illegitimate for the contract to be null and void. Is it necessarily legitimate because it’s exercised by the CJS?After all criminal law is the law of coercion…But… this does mean that coercion must itself be legitimate: a question for us all

Conclusion Contractualisation risks?= gives the appearance of less governance whilst actually leading to more (Crawford, 2003)

- therefore inherently linked to punitive trends (Cohen, 1979; 1985) in the vein of less eligibility (Ibid – contra: Dumont, 2011). - collective bad conscience for exercising punishment: same old with new clothing?

I have a totally different take on this: these analysis are rooted in a superficial and classic definition of contracts. A modernised viewpoint leads to more (in the sense of more of its true legal consequences), not less contracts! Modern contracts law allows balancing complex & opposite needs: - more respect for agency, autonomy, and therefore, for people as human

beings (more substantive compliance? ) - but taking stock of offender’s particular weakness - whilst limiting the risk of paternalism and nocebo welfarism

Spe. ed. Ejprob Dec. 2014

Anagnostaki, M. (2014) Consent and cooperation in the Greek context: Rhetoric and praxis. Ejprob, 6 (3), 225-241.

Canton, R. (2014) Yes, no, possibly, maybe: Community sanctions, consent and cooperation. Ejprob, 6 (3), 209-224

Johnsen B. & Storgaard A. (2014) ‘Consent and cooperation in community supervision in Denmark and Norway’, Ejprob, 6 (3): 254-259

Morgenstern, C. (2015) Dominant court decision-making: Germany. Conditional release in Germany – who decides? And who really does? In: Herzog-Evans, M. (ed.), Offender Release and Supervision: The Role of Courts and the Use of Discretion. Nijmegen, Wolf Legal Publishers, pp. 109-135

Raynor, P. (2014) Consent to probation in England and Wales: How it was abolished, and why It matters. Ejprob, 6 (3), 296-307.

Sučić, I., Ricijaš, N. & Glavak-Tkalić, R. (2014) Informed consent as a requirement for probation work with (in)voluntary clients: Probationers and probation officers’ perspectives. Ejprob, 6 (3), 260-277

Weaver, B. & Barry, M. (2014) Managing high risk offenders in the community: Compliance, cooperation and consent in a climate of concern. Ejprob, 6 (3), 278-295.

Sorry to the folks I have not pictured here

Other Références Bottoms, A.E. (2001) Compliance and community penalties. In: Bottoms, A., Gelsthorpe, L. & Rex, S. (eds.), Community Penalties:

Change and Challenges. Cullompton, Willan Publishing, pp. 87-116 Casorla, F. (1999) Du consensualisme en prison, en droit pénitentiaire français. Revue Pénitentiaire, 3, 383-389 Cohen, S. (1979) ‘The punitive city’: Notes on the dispersal of social control. Contemporary Crises, 3 (4), 339-363.

Crawford, A. (2003) ‘Contractual governance’ of deviant behaviour. Journal of Law and Society, 30 (4), 479-505. Danti-Juan, M. (2001) Le consentement et la sanction. In: Collectif, Mélanges offerts à Pierre Couvrat: la sanction du droit. Paris,

Presses Universitaires de France, pp. 367-381 Demogue, R. (1923) Traité des obligations en général. Paris, Arthur Rousseau Descarpentries, F. (2005) Le consentement aux soins en psychiatrie. Paris, l’Harmattan. Dumont, D. (2011) Activation rime-t-elle nécessairement avec stigmatisation? Une mise en perspective critique du procès de l’Etat

social actif. Droit et Société, 78, 447-471. Durnescu, I. (2011) Pains of probation: Effective practice and human rights. International Journal of Offender Therapy and

Comparative Criminology, 55 (4), 530-545. Fabre-Magnan, M. (1992) De l’obligation d’information dans les contrats. Essai d’une théorie. Paris, L.G.D.J. Faden, R.R. & Beauchamp, T.L. in collaboration with King, N.M. (1986) A History and Theory of Informed Consent. Oxford, Oxford

University Press Gounot, E. (1912) Le principe de l'autonomie de la volonté en droit privé: étude critique de l'individualisme juridique. PhD Thesis,

Dijon. Kant, E. (1780) The Metaphysical Elements of Ethics. English trans. 1991, Cambridge University Press. Mallardi, V. (2005) Le origini del consenso informato [The origins of informed consent]. Acta Otorhinolaryngol. Ital., 25, 312-327 Marzano (2005), Je consens, donc je sui, Paris, Presses Universitaires de France McNeill, F. & Robinson, G. (2013) Liquid legitimacy and community sanctions. In Crawford, A. & Hucklesby, A. (eds.), Legitimacy and

Compliance in Criminal Justice. Routledge, pp. 116-137 Menu, S. (2004) La volonté du condamné dans l’exécution de sa peine. PhD Thesis, University of Poitiers. Nelken, D. (1987) The use of “contracts” as a social work technique. Current Legal Problems, 40 (1), 207-232) Pin, X. (2002) Le consentement en matière pénale. PhD thesis, Grenoble, Paris, L.G.D.J. Rampelberg, R.-M. (2005) Repères romains pour le droit européen des contrats. Paris, L.G.D.J. Waline, M. (1949) L’individualisme et le droit. Paris, Domat et Montchrestien.

Merci! Thank you!

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