I question the way the law regulates adolescents by looking at the interaction between i) pre-Enlightenment norms in which scientific and political notions of human development did not exist for all practical purposes, ii) Enlightenment philosophical and scientific norms of human development, and iii) modern legal norms of human development. Are there ways in which pre-modern holistic notions of being human can contribute to a more rational approach to adolescents by the law? How can the ideology of childhood, which through Enlightenment scientific and political thought, is reified (has the illusion it is real), naturalized (has the illusion it is natural) and legitimized (encoded in the law), be overcome for adolescents?
I make four contributions to the discussion of children’s rights:
1. I make an argument that the authority of science is overrated when dealing with children. Science is used by the medical and other professions to justify their authority and competence in certain environments, including the classroom and at the bedside. It is used primarily by physicians, but is used by the other authorities that make decisions on behalf of adolescents: parents, teachers, and, in general, the state. I argue that the life sciences are now both institutionally corrupt and theoretically unsound, and therefore should no longer be a proxy for or token of authority. Decisions about children, especially adolescents, based on the life sciences, or made by life scientists (including physicians) whose authority primarily flows from their social authority as scientists, should be seen as categorically problematic and therefore categorically devalued.
2. I suggest that states and other socio-political entities should recognize committees of adolescents to represent the wishes and needs of adolescents and other children.
3. I suggest that, as a general matter, the legal presumption that adult competence happens only at 18 or 21, with carve out exceptions for some earlier competencies, should be reversed, and that the law should recognize adult competence at 14 (e.g.) with exceptions for some later competencies. And
4. Until more general reforms can be enacted, I join with those who suggest that the general rule for adolescents facing terminal or grave illnesses should be to deem them competent to make their own medical decisions.In Australia we have Gillick Competence and a somewhat less jaundiced view of the sciences. Lunstroth comments that
The sciences of living things are institutionally corrupt. Peer review, ghost articles, intellectual property regimes in the academy, etc. are now the norm. Our post-WW2 science has always been in the thrall of industry, but never to the extent it is now. Corruption has now become naturalized in the sciences of living things; the idea of conflicts of interest has become so weakened that it barely exists; and corruption is predictable as a consequence of Darwinian determinism. Oligarchy instrumentalizes science for profit-seeking. This is an end in practice of the sciences of living things because it is simply not reliable anymore. The ideals and values of science-as-the-pursuit-of-truth-come-what-may are in general deceased, or at the very least chronically and very seriously ill.
Therefore, the promise of reason in medicine is now questionable, and its role in decision- making in the clinic with chronically and fatally ill children should not be over-rated; the ideology of medicine must be unmasked if we are to give children more authority to make decisions affecting their integrity.A more nuanced view is provided in 'The Neurobiology of Decision-Making in High Risk Youth & the Law of Consent to Sex' (Indiana University Robert H. McKinney School of Law Research Paper No. 2014-2) by Jennifer Drobac and Leslie A Hulvershorn, who comment that
Under certain circumstances, the law treats juvenile consent the same as it treats adult decisions, even though a growing body of scientific research demonstrates that children make decisions using less developed cognitive processes. This Article highlights the gaps and deficiencies of legal treatment of juvenile decisions in the context of sex with an adult, as well as integrates new scientific information regarding the decision-making of minors in risky situations. Part I examines recent pediatric brain imaging findings during a risky decision-making task. Specifically, a new study demonstrates that brain scan results differed between juveniles at high risk for potentially harmful or criminal conduct and healthy children. These differences within juvenile populations support the notion that particular biological and environmental traits in children may further distinguish juvenile decision-making from adult decision-making. Part II explores the potential impact of these novel neurobiological findings on the legal treatment of juvenile “consent” to sexual activity. A discussion and summary of the juvenile sex crime statutes of all fifty states demonstrates how the law attributes legal capacity and ability to make legally binding decisions to even very young teenagers. Part II also highlights where state civil and criminal law treat juvenile “consent” inconsistently. Criminal and civil laws’ treatment of juvenile capacity, in the context of sexual activity with an adult, is not congruent with recent neurobiological discoveries regarding juvenile risk-taking and decision-making. Therefore, society should reconsider designations regarding legal capacity in light of novel neurobiological findings regarding decision-making in juveniles.The UK Telegraph, in reporting the demise of Cornelius Gurlitt, meanwhile states that
... Cornelius was stopped during a routine passenger check as he returned to Germany by train from Zurich. “He appeared nervous,” a customs official later noted.
Although he was released, German authorities remained suspicious. Their investigations showed that he was not, as he had claimed, a resident of Salzburg and he had no clear form of income. He did not have a bank account, pension or insurance, had never had a job, or been married and, as he was not registered with the authorities, was not known either to the tax authorities or to social services. According to an article in Der Spiegel, Gurlitt stopped watching television in 1963, never used the internet and booked hotel rooms months in advance when he needed to travel. “He was a man who didn’t exist,” said one official.
The police applied for a warrant to enter his rented apartment, and it was there in February 2012 that, behind heaps of tinned food long past its sell-by date, they discovered the astonishing stash of missing artworks. Alongside Old Masters and pieces from the 19th century, the haul was found to include many works by artists considered “degenerate” by the Nazi regime — such as Franz Marc, Paul Klee, Marc Chagall, Max Beckmann and Otto Dix. Gurlitt found himself at the heart of a global sensation.