Beyond family law.

AuthorAbramowicz, Sarah
PositionApplication of child's best interests doctrine to non-family law areas - III. The Autonomy-Developing Rationale Across the Legal Canon through Conclusion, with footnotes, p. 351-379
  1. THE AUTONOMY-DEVELOPING RATIONALE ACROSS THE LEGAL CANON

    Currently, the arguments for taking children's interests into account in cases involving their parents--to the extent that scholars recognize the issue at all have reached a stalemate. Framed within the confines of each doctrinal field, these debates are either overly narrow, as in contract law's limited understanding of which agreements affect children, or undertheorized, as in the parental incarceration debate within criminal law. Moreover, the issue of children's interests is largely marginalized within each field, and receives little attention in general scholarly accounts of each field's underlying rationale. No scholar has recognized the connection between the law's treatment of a child's parents, on the one hand, and, on the other, how each doctrinal area will treat the child upon reaching adulthood--a connection that makes children's interests an essential component of any discussion of each field's legitimacy. This Article reframes the issue of children's interests in cases involving their parents--and argues for the central importance of these interests across the legal canon--by importing into the discussion the perspective of family law about why and how childhood matters. Family law's insight about the influence of childhood on the adult self has shown, in Parts I and II, the extent to which children's development can be affected by cases involving their parents. The Article now brings this insight to bear on the related question of why we should take children's interests into account in these cases. When viewed in light of the formative influence of childhood experience, children's interests can be seen as integral to--rather than collateral to--the two exemplary areas of law we are examining, criminal law and contract law. As this Article will now demonstrate, both of these areas of law are premised on a model of the adult legal subject that is closely intertwined with the conditions of each child's development. This is the model of the adult legal actor as sufficiently autonomous, in the sense of both rational and free, to be held responsible for his or her actions.

    From the perspective of the autonomy assumption, considering the effect on children of legal decisions involving their parents no longer seems at odds with the overarching concerns of criminal law, contract law, or many of the other doctrinal areas of law in which children's interests are indirectly at stake. For according to family law's best-interests-of-the-child assessment, the likelihood that each child will actually develop into a rational and independent adult and thus will resemble the model of the autonomous legal actor taken for granted across the legal canon is greatly influenced by the conditions of each child's upbringing and early experience. Thus, attending to children's interests in cases that affect them indirectly can be seen as contributing to the legitimacy and internal consistency of any area of law that predicates responsibility on adult autonomy. Considering how legal outcomes affect children's upbringing will enhance the legitimacy of these areas of law by increasing the likelihood that the children will grow up to resemble what the law will later assume them to be--autonomous adults capable of acting rationally and exercising freedom of choice.

    1. The Autonomy Premise in Criminal Law

      A central debate in criminal law is the degree of autonomy that a person must possess in order to be held responsible for his or her actions. Because criminal law brings the power of the state to bear on individuals more severely than any other area of law, legal philosophers are especially concerned that individuals not be held criminally liable unless they can be blamed for their actions. (254) Despite disagreement about the proper basis of criminal punishment, there is a widespread consensus that blameworthy conduct requires a minimal degree of autonomy, in the form of both rationality and freedom of choice. (255) In the formulation of H.L.A. Hart, in order to be held criminally responsible, a legal actor must possess both the capacity (rationality) and the opportunity (freedom of choice) to conform her behavior to the law. (256)

      This twofold requirement for criminal responsibility is reflected in the substantive provisions of criminal law, which are predicated on a minimal degree of autonomy in the form of rationality and freedom of choice. Criminal liability typically requires both amens rea (culpable state of mind) (257) and an actus reus (a voluntary act or omission). (258) The mens rea component emphasizes that criminal responsibility requires a degree of rational choice. If a legal actor is unaware of the facts that made his actions unlawful, for instance, he may lack the requisite mens rea. (259) The higher the degree of rational activity, the more culpable a person may be for the same underlying conduct. It is for this reason that premeditation, deliberation, and intent have traditionally distinguished first-degree murder from lesser charges. (260) The actus reus requirement adds to this the mandate that conduct be volitional if it is to become the basis for criminal responsibility. There is no actus reus, and therefore no crime, for instance, where conduct is the result of an involuntary spasm, or where the actor is unconscious. (261)

      Criminal law's twofold autonomy requirement is also reflected in the major excuses from criminal liability, such as insanity and duress. (262) The insanity defense makes sufficient rationality a prerequisite to criminal responsibility. Under every version of the insanity defense, an actor is excused if he lacked the capacity to understand either the nature or the wrongfulness of his actions. (263) The duress excuse, in turn, conveys that criminal responsibility requires a certain degree of free choice. (264) A person who acts with a gun to his head is not responsible because he did not act with sufficient freedom: he had some volition, but his range of choices--obey the gunman or face death--was too limited to merit criminal liability.

      Even as criminal law mandates autonomy as the basis for criminal responsibility, however, legal philosophers have long acknowledged that we often hold actors legally responsible for their conduct in the absence of full autonomy. On the one hand, the legitimacy of criminal law rests on the assumption that we only inflict punishment on those who acted with sufficient autonomy to merit blame for their actions. At the same time, however, criminal law presumes that all minimally competent adults meet this standard of autonomy. In the process, we hold liable a number of adults whose rational capacity and freedom of choice are significantly impaired.

      This wrinkle in criminal law's autonomy requirement is visible in the debate over an excuse for criminal behavior that has been widely rejected by courts and scholars: the "Rotten Social Background" excuse. In the 1970s, Professor Richard Delgado, building upon the work of Judge David Bazelon, proposed that we excuse from criminal liability those who have been brought up in conditions that have diminished their capacity to deliberate rationally and to regulate their emotions. (265) The proposed "Rotten Social Background" defense concerned adults who met the minimum standard of capacity that rendered them liable under criminal law they understood the nature of their actions, and acted with a degree of volition but who had experienced a difficult childhood that led to significant difficulty in conforming their behavior to the law. (266) Such a defendant, Delgado argued, should not bear responsibility for actions that resulted from an early upbringing and environment that had been inflicted on him through no fault of his own. (267)

      Most criminal law scholars and legal philosophers reject the prospect of a "Rotten Social Background" excuse even while acknowledging that upbringing and early experience can diminish a legal actor's ability to avoid wrongdoing. (268) These scholars recognize that childhood background can impair the two elements of autonomy, rationality and self-control, and in so doing can lead adult actors to engage in conduct that they might have avoided had they been raised in a different environment. (269) But they argue that as long as adult actors meet a minimal standard of capacity (270)--such as possessing the ability to understand the nature and wrongfulness of their actions, which in most jurisdictions establishes legal sanity--we should act on the premise that adults are autonomous, and hold them responsible accordingly, instead of assessing the extent to which they fall short of actual autonomy. (271)

      There are a number of reasons for criminal law to treat adults as if they are autonomous, even when they are not. As a pragmatic matter, once we begin excusing adults from liability on the basis that their capacity to refrain from wrongdoing has been diminished by experiences beyond their control, we open up the argument that no one can be held responsible for his or her actions, because all of us are determined by some combination of genetics and environment. (272) Another argument is that recognizing the extent to which certain sane adults fall short of full autonomy would diminish the dignity of those adults, (273) with potentially pernicious results: were we to treat certain adults as children who cannot control their actions, their rights and liberties could be curtailed accordingly. (274) Still others argue that we must treat adults as autonomous because the assumption of adult autonomy is necessary to provide "meaning in life" and to "construct a normative order in a world otherwise indifferent to human norms." (275)

      Underlying these arguments is a broad consensus that the criminal law must take adult autonomy for granted and assign liability accordingly, rather than investigate the extent to which each adult legal...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT