Abstract
How does age matter to moral responsibility and criminal liability? Almost no one thinks that a 3-year old is morally responsible for what she does. No one would think an 8-year old should be held criminally liable for engaging in illegal criminal action—even for something seriously harmful such as intentionally setting fire to a building or badly harming another child. Something else should happen, certainly, but not criminal prosecution and conviction and State punishment. And that’s true even if we might start to think that the 8-year old can be morally responsible, or at least somewhat morally responsible, for what she does. Disagreement might start to enter in as the age increases. What do we think of a 12-year old? A 15-year old? A 17-year old? Gideon Yaffe’s excellent book, The Age of Culpability, is focused on the question of why children—for these purposes, all people under the chronological age of 18—should be given a break, legally speaking, and why this should be done categorically. Yaffe argues that the fact that no one under 18 is eligible to vote is a key part of the explanation. In this paper, I raise two objections to Yaffe’s account. In particular, I raise several questions about the details of Yaffe’s account regarding what it is to “have a say over the law” and the way in which this makes a difference to criminal culpability.
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Notes
In particular, see Husak (2008) for a detailed discussion.
There is a lot of relevant empirical work on this topic. Gilens (2012) has demonstrated that US policy is mostly responsive to the preferences of the highest income Americans, if there is a conflict between those preferences and the preferences of the working- and middle-classes. Hacker and Pierson (2011) argue that a main source of the increase in income inequality over the last 30 years in the United States is the capture of American politics by the economic elite, and the ability of these elites to determine the policy outcomes they favor. And so on.
References
Gilens, M. 2012. Affluence and Influence: Economic Inequality and Political Power in America. Princeton: Princeton University Press.
Guerrero, A. 2015. Deliberation, Responsibility, and Excusing Mistakes of Law. Jurisprudence 6: 81–94.
Hacker, J., and P. Pierson. 2011. Winner-Take-All Politics: How Washington Made the Rich Richer—and Turned Its Back on the Middle Class. New York: Simon & Schuster Paperbacks.
Husak, D. 2008. Review of Gideon Yaffe, The Age of Culpability: Children and the Nature of Criminal Responsibility, Notre Dame Philosophical Reviews, https://ndpr.nd.edu/news/the-age-of-culpability-children-and-the-nature-of-criminal-responsibility/.
Yaffe, G. 2018. The Age of Culpability: Children and the Nature of Criminal Responsibility. Oxford: Oxford University Press.
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Guerrero, A. Children, Political Power, and Punishment. J Ethics 24, 269–280 (2020). https://doi.org/10.1007/s10892-020-09330-6
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DOI: https://doi.org/10.1007/s10892-020-09330-6