What does it mean when a judge in a court of law uses the phrase “common sense”? Is it a type of evidence or a mode of reasoning? In a world characterized by material and political inequalities, whose common sense should inform the law? Common Sense and Legal Judgment explores this rhetorically powerful phrase, arguing that common sense, when invoked in political and legal discourses without adequate reflection, poses a threat to the quality and legitimacy of legal judgment. Often operating in the service of conservatism, populism, or majoritarianism, common sense can harbour stereotypes, reproduce unjust power relations, and silence marginalized people. Nevertheless, drawing the works of theorists such as Thomas Reid, Antonio Gramsci, and Hannah Arendt into conversation with rulings by the Supreme Court of Canada, Patricia Cochran demonstrates that with careful attention, the democratic, egalitarian, and community-sustaining aspects of common sense can be brought to light. A call for critical self-reflection and the close scrutiny of power relationships and social contexts, this book is a direct response to social justice predicaments and their confounding relationships to law. Creative and interdisciplinary, Common Sense and Legal Judgment reinvigorates feminist and anti-poverty understandings of judgment, knowledge, justice, and accountability.

NEW YORK TIMES BESTSELLER “We need a new idea of how to govern. The current system is broken. Law is supposed to be a framework for humans to make choices, not the replacement for free choice.” So notes Philip K. Howard in the new Afterword to his explosive manifesto The Death of Common Sense. Here Howard offers nothing less than a fresh, lucid, practical operating system for modern democracy. America is drowning—in law, lawsuits, and nearly endless red tape. Before acting or making a decision, we often abandon our best instincts. We pause, we worry, we equivocate, and then we divert our energy into trying to protect ourselves. Filled with one too many examples of bureaucratic overreach, The Death of Common Sense demonstrates how we—and our country—can at last get back on track.

In a period of paradigmatic transition, Toward a New Legal Common Sense aims to devolve to law its emancipatory potential.

Consent is used in many different social and legal contexts with the pervasive understanding that it is, and has always been, about autonomy - but has it? Beginning with an overview of consent's role in law today, this book investigates the doctrine's inseparable association with personal autonomy and its effect in producing both idealised and demonised forms of personhood and agency. This prompts a search for alternative understandings of consent. Through an exploration of sexual offences in Antiquity, medical practice in the Middle Ages, and the regulation of bodily harm on the present-day sports field, this book demonstrates that, in contrast to its common sense story of autonomy, consent more often operates as an act of submission than as a form of personal freedom or agency. The book explores the implications of this counter-narrative for the law's contemporary uses of consent, arguing that the kind of freedom consent is meant to enact might be foreclosed by the very frame in which we think about autonomy itself. This book will be of interest to scholars of many aspects of law, history, and feminism as well as students of criminal law, bioethics, and political theory.