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A Question of Capacity: Towards a Comprehensive and Consistent Vision of Children and Their Status Under Law

104 Pages Posted: 19 Jul 2008  

Larry Cunningham

St. John's University School of Law

Date Written: July 1, 2006

Abstract

What are children capable of doing? In the legal context, the answer depends on the subject. The law decrees that a 16-year-old is "incapable" of consenting to a simple contract, yet, in many jurisdictions, can be prosecuted as an adult on the theory that he or she has committed a very "adult" crime. At one time, 18-21-year-olds were not able to vote, but could consent to enter the armed forces. In some contexts, the law imposes a categorical rule: a child of a certain age is or is not automatically capable of consent. In other contexts, the law requires an examination of the particular child; consent is determined on a case-by-case basis. In this article, I propose a consistent way of viewing children under the law, in light of psychology's understanding about how children think and behave. I specifically propose the creation of a Model Children's Code so that issues of juvenile capacity can be addressed in a consistent, logical, and coherent fashion.

Keywords: juvenile, capacity, child, children, underage, adult, code, consent, Piaget, consistency, competency

Suggested Citation

Cunningham, Larry, A Question of Capacity: Towards a Comprehensive and Consistent Vision of Children and Their Status Under Law (July 1, 2006). Journal of Juvenile Law & Policy, Vol. 10, No. 2, 2006. Available at SSRN: https://ssrn.com/abstract=1162799

Larry Cunningham (Contact Author)

St. John's University School of Law ( email )

8000 Utopia Parkway
Jamaica, NY 11439
United States
718-990-7616 (Phone)

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