According to the Criminal Code of Canada, Part 1, Section 13 - No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years.
How many of you agree with this (impunity)?
What are some forseeable problems? Ie. Someone using an eleven year old to do their dirty work while swearing them to secrecy.
What about the age, should it be lower, higher, or is it right just where it is?
I definitely disagree with this crazy Canadian law. I believe that a person twelve years of age fully knows what he is doing. 12 years is old enough to know right from wrong (lets not get into a discussion about morality here). There are definite problems that could arise from this law. BTW Magius, where did u find a copy of Canada’s Criminal Code???
I own a copy of the CCC superstrongsteve, I have wanted to be a lawyer for most of my life, so I have an interest in the topic. I also thought it would be interesting to start a thread, if not a forum, about law - law in general that is, so people can share their opinions on laws from different countries. Having revised my decision only about 3 years ago, about being a lawyer. By the way, the law is that people UNDER the age of 12 have impunity. If you think 12 year olds know right from wrong, would you mind than answering my other questions, that being at what age you would set the law, if you would set the law at any age…and explain why.
What’s your take?
According to the Criminal Code of Canada Part VIII, Section 215, subsection 1)
Duties Tending to Preservation of Life
Duty of persons to provide necessaries - Every one is under a legal duty
(a)as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen;
(b) to provide necessaries of life to their spouse or common-law partner; and
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
(ii) is unable to provide himself with necessaries of life.
Punishment not to exceed two years imprisonment
superstrongsteve, I realized I didn’t really answer your question last time. Sorry about that. You can find a criminal code of Canada in any Canadian library, or any decent book store. I got mine from my university book store - the university has its own shopping mall.
What’s your take?
If a person commits a crime under the control of somebody else this probably should mitigate the penalty if not remove the crime altogether. But in thinking about the Manson family - from what I remember, the family was proven to be acting under their own freewill even if they were following orders.
And there’s the rub with this over 12 law: Children of all ages have varying degrees of free will. When I was 13 I was capable of doing (and did, I think) things that would have put me in jail. Would that have been right? Probably not given that by the age of 15 I had overcome my adolescent rebelliounsess. I was cleansed of criminal behaviour. Thus, the issue for me is the utter failure to recognize that a large group of adolescents for reasons outside of their control (economic, racial, familial) are put in jail for many crimes, including selling drugs, but also more violent crimes like assault. Violent crimes is understandably abhorrent in an ordered society. Clearly, this society seems fed up with ‘being light’ on criminal behaviour and, well, damn the efforts of rehabilitation, preventative measures, or political/economic restructuring.
I like the idea of philosophy of law. I’ve got an american legal education even though I am not a lawyer. And I’ve also got a philosophy degree and a continuing active interest in both philo and law. Do you know of H.L.A Hart and Roscoe Pound.
I’ve covered some Hart, but not read any Pound. My phil. of law lecturer was rathered enamoured with Dworkin, though I never did get roud to reading his stuff, I was more interested in things like legal paternalism and whether there is an obligation to follow the law.
As for the 12 year old law, there’s a similar type of law in England. What you will notice is that it says they can’t be cnvicted of the act or the offense, but I assume that the parents can be accused of something like gross negligence or the like and the child can be taken in to protective supervision.
Do you feel it is wrong that they should not be convicted? It’s a rather persvasive assumption in much philosophy of law that there are people who should not be culpable for their actions as they do not understand them. It is generally children and the insane that are pointed to whenthis is discussed. However I remember someone arguing that if a minor engages in an adult action, like driving a car, then they should be ulpable (I think it may have been Hart in fact). I’m not sure, will have to check that one, and I don’t know to what extent he meant.
As for what age to set the law, it’s just a matter of having to draw a line in the sand, otherwise for each casse you would have lots of wrangling about whether the person was aware of what they were doing was wrong. Maybe it is true that they’re a little liberal with their assesments, I mean I certainly think some 15 year olds should face a full legal court (I think the line in the sand in England is 16). It just a matter of essentially saving time and money, though it may sound harsh, it would cost legal systems a huge sum of money to have to argue each time a child came to court whether he wasculpable or not. If legislators are a little liberal with the assesments, it’s probably because they themselves have children to whom they look on with dewey eyed niavity.
No.
Here’s how I would break it down. If one is mentally culpable then the punishment should be consistant with that culpability. And I believe that insanity and age are relevant facts to consider in discussing culpability. And furthermore, we can draw a line with age. 16 is reasonable. I don’t think the economics are beside the point. Courts must be able to operate, financially and efficiently.
As for wronging a right. This is where it gets really problematic. If a 13 year old murders, then there is the wronged to consider. The analysis of culpability has some indirect effect over this issue - But for many in a society that is cracking down on crime, the question of mental culpability is secondary to causal culpability.
Nice elucidation of your point EnMarchant, but if you don’t mind, WHY do you think 16 is reasonable? Most would base the age around the number when a child begins to understand right from wrong, but this happens at a much earlier age than 16. I’m not arguing that you are wrong, I am trying to stay objective and hear your points of view to decide whether I do or do not agree with you analysis. Some who I have talked to point to the age around ‘6’, some say around 8, and as I already indicated that according to Canadian law under 12 is the age.
What’s your take?
I’m not too sure what it means when you say you are “trying to be objective”? Am I saying things that you feel you disagree with and so you are trying to understand them intellectually rather than instinctively? Go with your instincts.
I am saying essentially that the line must be drawn at a later age than early adolescence for the reasons that mental culpability must include an analysis of age. Age automaitcally mitigates the mental responsibility. Early adolescence is often a time where one makes tragic decisions. I am saying that despite these tragedies, which I agree are a threat to society, the mitigation of age requires that we educate our youth instead of put them in jail. Eduacation can be temporary incarceration but never 25 years to life.
age is but a matter of numbers… the law takes divisions of time into consideration, assuming that it represents maturity levels. yet we all know that maturity is subjective and occurs in different levels with different people… most nine year olds totally understand and are aware of consequences and society’s conventions, lawas and codes. why 12? yet there are slower and more ignorant children who are older than 12. im sure we know some who we go “i cant believe at his age still thinks/acts like a 4 year old”.
regarding your question… im sure the law assumes that being 12, a ripe old pre teen age, one should be aware of the consequence of what he’s doing, and understands that he is responsible for his choices. and thus have the sense to say NO to the adult asking him to commit a crime on their behalf.
[size=75]down with laws![/size]
Jedi stated:
I agreed with everything you stated in your previous post other then the paragraph I have quoted. It’s not that I disagree with it, but that something is left unclear. Although at 12 most have the sense to say NO to an adult asking them to do something illegal, they still don’t. There is peer pressure, feeling important, proving oneself, love, fear, etc. A 12 year old is easily susceptible to fear from an adult, who may not actually do anything physically wrong to the 12 year old but find a way to give subtle hints that if they don’t do what they want, something bad will happen to them. I think all of us have done illegal things because we were with the wrong crowd or we wanted to fit it, or we wanted to prove ourselves, etc. Furthermore, even adults find themselves doing things that are illegal because they love a person who does the same thing. Ie. I know that people who fall in love with drug addicts usually become drug addicts themselves.
What’s your take?
ah very true. there was such a case in singapore last year where a man made a 15 year old boy kill a woman. very very sad. one can imagine the boy’s fear of the man and his threats…
my take, absolutism in laws can be bad. undoubtedly appeals can be made in defence of the child if he was in such a position.
Magius,
Where is the Philosophy in this discussion? I was wondering if there is some philosphical relevance. The opinions that we have - that ages 9, 12, or 16 are ages of culpability - seem to be legal analysis. It is what lawmakers do.
What do philophers do when dealing with a legal question? Do they only speak about Legitmacy of the law, or Where it comes from, or What kinds of legal systems exits, or the morality/justice of the law.
Maybe we can discuss the ideological assumptions of our opinions.
Or more interestingly for me, and maybe related as well, I have always had an interest in uncovering the metaphysical basis of legal questions and answers. Is there any relevancy of metaphysics to legal questions? Like the metaphysics of utilitarianism, a line of philosophy that has influenced the Law? Or the metaphysics of Natural Law philosophy? Etc.?
Despite my being the one starting this thread, I have no problem with you switching the subject to any version of law you wish, when I say version I just mean a different context in which law is being discussed. In addressing you question as to where the philosophy is, well to me it’s everywhere at all times. I think the age for impunity is very relevant to philosophy. Asking why something is the way it is, is a foundational epistemological quesiton, epistemology (nature of knowledge) being a branch of philosophy. The age of impunity could be shown to be a relevant part of many other forms of philosophy, but I guess what your trying to say is “where is the theory behind all this”, if I’m correct and you wish to be discussing Jeremy Benthams utilitarianism, than great, go ahead and make a post about it. Personally, I wanted to know what people thought in relation to REAL law, not a theory or a generality. Not that there is anything wrong with that, just that, at this time I am curious about the specific instances of law within the CCC (Criminal Code of Canada). You might want to start your own thread about theories behind law. A few posters have made reference to some theorists that have been guiding forces behind the development of law. Ie. HLA Hart. To name a few more Thomas Aquinas, Aristotle, and John Austin.
Or maybe the topic will get nicely agglomerated into this thread, I’m a free spirited person and easy going at that, so whatever you decide is fine with me.
What’s your take?
There’s complete philosophical relevence. If some of the idiot judges/lawyers had asome mandatory training in the whole point behind their actions they would stop making completely contradictory laws. They would also realise that their job is not to make law but to ensure it is is properly enforced. In fact Judges should be explicitly banned from meddling with the law, they are uinelected, often untrained in politics or philosophy, and their political stance affects their decisions. That shouldn’t be how judges operate, they should be impartial, hence the name judge and not MP (or senator or whatever your legal system is). Lawmakers must make these decisions with the philosophy and values of their state in mind. Even if they do not reaise that it is philosophy, it is. Law makers would also benefit from a bit of political philosophy training, especially the history of their own nation state, and if they’re western probably English political philosophy history as well as some of the other bit part players.
As for this particlar question, as I was trying to say earlier, but not very clearly I admit, I think that there is a pervading assumption (amongst philosophers, and thus lawmakers) that some people are not culpable for their actions, children being a chief class. That they draw the line at 12, maybe a bit generously, is for several reasons.
Firstly it’s so they do not have to pay the expense of arguing whether a child was culpbable or not every time a child did something illegal (also one of the reasons for the line existing).
Secondly it’s a bit high because the law makers will have had children themselves (so look at their own children and set the line high as their children just couldn’t do evil acts at their age).
Thirdly it’s to ensure that all children, including latre developers are included. Thus only people who have obvious mental difficulties can rely on defences of not understanding without the law affecting people who genuinely did not understand the consequenes of their actions.
Matt - It seems that we agree that lawmakers should be trained in philosophy. My legal education included a one-term sleepy version of professional ethics, and that was it. Had I not bothered to take the only history course available, I would never have read more than just a few lines of the American constitution! A law degree at most american law schools is a degree in knowing how to argue law, not how to think about law and society, or law and philosophy. Knowing how to think about the law from a philosphical and historical point of view is beside the point - it would confuse the goal, which is to get a job, pass the bar(, get power and presitige, if I may add a more cynical observation.)
That said, I don’t agree with you about your statement about judges. I don’t draw a line between between lawmakers and judges. I think the american and english legal system have a healthy history of judge-made law. The checks and balances inherent in our always evolving systems necessarily includes lawmaking in congress as well as in public petitions and referendums and in lawsuits. America in the last 100 years has been changed dramitically in the courtrooms. Both sides of the right-left political divide have won and lost in the courtrooms. To forbid this forum of political change under the questionable dictates of democracy (“judges aren’t elected”) is to miss the larger poiunt of how justice in a society evolves.
I can’t see how one man (and it is often one man who bends the will of other judges to his bidding) can ever be allowed to make law. In England law has to be bounced back and forth between the commons and the lords, with hundreds of points of view in order to allow all sides to be represented in considering the impact of a law, after first being written within the civil service with lots of research and thought. A single judge, like Caldwell (who rewrote the definiton of recklessness so it meant something completely different just to convict one man (not sure if this was England or America)) can then screw up the whole thing up by pissing around in his concluding remarks and completely rewrite the essence of the law, allowing for gross injustices like a 15 year old autistic child being done for reckless behaviour.
There’s no checks on a judge, that’s why they should not be allowed to be law makers. It’s as simple as that, they have no part to play in law making, all they should do is look at a difficult case and decide how the law applies to it. Dworkin argued there is always a right answer to a legal question within a good legal system and judges shouldn’t even need to create law, by doing so they are undermining the very system they serve. I have to say I agree with him completely.
Matt stated:
My memory may need refreshing, but Dworkin based his argument of there always being a right answer to a legal question based on the merger of rules and principles within law. Each being able to over-rule the other on certain occasions. Dworkin’s whole point was to disprove HLA Hart’s positivists theory of hard cases and judges being given discretion to use what resources they wish in deciding a case. But in no way is a judge obliged to do so - s/he could simply choose to go the other direction of what most principles would state, and no one could complain that his/her judgement was an illegal one, although they may say it was stupid. Anyway, if all that is true as my memory tells me so, I wish to say that I find Dworkin’s theory more plausible, but also containing error. There isn’t always a clear answer, sometimes there are cases in which no rule or principle clearly applies and the case is left with a grey area of ambiguity that is let upto the judges biased opinion to handle. I don’t agree with that. Furthermore, principles often contradict. It all depends on what principles you use. Principles in this case meaning unwritten rules. But there are so many mythological, household, racial, societal, governmental, occuptaional, etc principles that are made by the dozens each year that it turns into a ping-pong game where each is hitting back another principle to contradict the former. For instance, there is a very old principle that goes…like cases should be treated alike. But the key word in this principle, if it isn’t obvious, is the word like. Like can mean that the cases are slightly similar, have a few things in common, are very similar, have only a few differentiating aspects to them, have only one or two differences between them. Either way they are not EXACTLY the same. For those informed with law and legal proceedings, will know that the slightest difference, even ONE difference can account for a HUGE difference between the cases. So to me this principle is a load of shit, pardon my language.
Again, I agree that Dworkins views are an enhancement of Hart’s but they still contain error, but heck, no one is perfect right?
I wonder if they will ever try to elect judges the good old democratic way. Atleast then we wouldn’t be able to complain for what we got ourselves into. Furthermore, I think the summary (Preamble?) that a judge writes after a case explaining his views should be much more detailed as to what he was thinking and what exact procedure, rule, and principles s/he followed. Cause too often they simply fill it up with precedent setting cases to prove their point, although they do provide the precendent setting cases, there are lots of times where their ruling compared to the precedent setting cases contradict each other (lawyers get a laugh out of this). Not only should it be more detailed, but his/her job should rest on their judgement. Especially if it is obviously an absurd and obtuse judgement, otherwise we have a corrupt system where a judges brief lack of proper judgement closes the doors on a citizens entire life. That is not justice.
What’s your take?
I think Dworkin’s general point is you’ve either broken a law or you haven’t, if you haven’t you can’t be guilty, if you have you are. Judges shouldn’t be able to bend law to their purposes, if there is a gap in the system it is the job for the law makers, i.e. government, to fill, not the judge. That one person may get away with the crime is a consequence of the system, just means no-one else will once the gap has been filled.
Matt - I think you’ve got Dworkin half-right. He does think in terms of right and wrong, but not (I don’t think) in the way you believe. He’s not a lawyer or a cop so he’s not speaking directly to the criminal saying “You’ve either broken a law or not.” He’s a theorist. More to the point, he’s a moralist, meaning that he sees the law in the context of right and wrong. But as he knows, morality and democracy are not automatically one and the same. Dworkin clearly challenges democratic principles when he speaks of morality. His moral-to-legal domain is the courtroom. He’s clearly a spirit over the law type and therefore most of his theories lead to the inevitable conclusion that Judges are best sutuated to uphold the moral bais of the law. What he writes (and I will brush up on my reading if need be) leads invariably to judge-enforced morality. In fact what I recall reading is a very forceful, controversial, and anti-democratic extenstion of the common law tradition (i.e. judge-made law) into the area of constututional law.