The right to
make one’s own legal decisions is typically denied for two reasons: Youth
(minority) and incompetence. Incompetence is a state of mental incapacity to
make one’s own decisions in a way which is informed with regard to the
consequences and rational.
Note that, for a
decision to be made competently, there is no requirement for it to be “fully” informed,
only for it to be informed “enough” (for example, your decision on whether to
move into an apartment needs to know the location of the apartment and the
length of the lease, but you are not considered to make an uninformed decision
simply because you don’t know that there was mold in the unit 6 years ago. If
you find this out after moving in, this fact would probably not be considered
sufficient to void the lease, as long as the mold problem was treated. This is
so even if the previous problem means that there is an elevated chance of a
recurrence of the problem in the dwelling.)
Similarly, your
decision needs to be rational “enough”, not necessary “fully” rational. For
example, you need to realize that you will have to find a new job that enables
you to cover the rent if you are working a temp job that ends in 4 months and
are signing a 12-month lease. However, you are not considered to be making an
irrational decision if it turns out that you are willing to take a higher risk
of financial problems because you just really, really think “the neighborhood
is awesome”. We might call such a
decision unwise, but not irrational. Many complex decisions we make in our
lives are subject to cognitive biases (as any Psychology 101 class will show
you!), but that is not by itself sufficient grounds to back out of a contract
or declare the signing party incompetent to enter the contract, in the absence
of circumstantial considerations.
When
it comes to youth (minority), there is a presumed incompetence of young persons
to make an informed and rational decision. Minority, or non-age, is the state
of being below the age of majority, typically 18, a traditional age at which
one is assumed to have the mental capacity sufficient for informed
decision-making independent of parents or guardians. However, it is far from
clear what grounds this age should be based on. Many commentators, even when
evidence is presented to the contrary, argue that adolescents (for the sake of
this discussion, ages 13-17) are not fully developed in their decisional
capacities, or equivalently, that their decision competence is measurably less
than that of adults, and thus that the age of majority needs to be set at the
end of adolescence instead of at the beginning, and that until the age of 18,
young people are not usually able to be responsible decision makers regarding
matters such as medical procedures [1].
However,
upon closer examination, this is actually a double standard when compared with
the notion of legal incompetence. This is so because competence is only
supposed to require a decision to be informed “enough” and rational “enough”, not
“fully” informed and “fully” rational. This is inconsistent on grounds of
principle with the doctrine that one should remain a minor until their
decisional capacity is “fully” developed and mature, rather than developed
“enough”.
Of
course this raises the obvious question of how to determine when a person (or
birth cohort) is developed “enough” to be given the right to
self-determination. Once we manage to rid ourselves of the notion that a person
needs to be “fully” mature or developed, how do we set a benchmark?
The most
parsimonious and egalitarian approach should follow the principle (I’ll call it
the “parity” principle):
|
Two persons, having the same abilities in the |
We also must
consider that any assessment that could be given is, in reality, imperfect, as
is any empirical category a person may fall in (adolescent, adult, black,
white, female, male, stroke patient, concussion victim, war veteran, professor,
clerk, etc.). Almost no assessment score or category tells us with 100%
certainty whether a person is incompetent or competent. Thus we have to ask the
following question: If due to age, other characteristic, or a test result, a
person has a 50% chance of being competent, do we give them the right to
self-determine? What about if it is 30%? Or 70%? This gives rise to the
“statistical parity” principle:
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Two groups of people, in the absence of further |
But we still
have to actually compare persons in these differing groups quantitatively in
order to assign an appropriate age of majority. Where do we start? In the spirit
of fair use, I will bring in the data for the legal competence to stand trial
as measured by a test designed by the MacArthur Foundation [2]. The reason for bringing in
this example is that there does not seem to be any good reason to think that
the mental capacity necessary to make this type of decision is dramatically
different from the capacity necessary for other types of real-world decisions
(legal, medical, etc.) so it is a reasonable proxy for decision-making in a
somewhat more general context.
In this study, there are three main areas
of assessment: Understanding, Reasoning, and Appreciation. The youngest age
group, 11-13 years of age, scored 10.45 (3.31), 11.30 (2.82), and 9.68 (2.34)
respectively, given as mean(standard deviation). The oldest (adult) group
scored, respectively,
12.13 (2.92), 12.57 (2.51), and 10.77
(1.57) on these areas. (See Table 3 of that source.) Of note is the fact that
the average person in the 11-13 year age group is actually within the normal
range of the adult population, that is, the population mean for the 11-13 year
olds is less than one standard deviation below the adult mean in all
three areas. This means that to have an age of majority greater than 13 years
of age, according to this study, would violate the Parity Principle unless a
sizeable percentage of the adult population were also declared incompetent.
Since the latter outcome is absurd, it seems that this suggests that 13, not
18, is a reasonable choice for the age of majority. One may object that while
the average 13-year-old is competent based on this result, the age of majority
must be higher to protect those with below-average decisional capacity and
maturity levels. The problem with this argument is that it would essentially
restrict the entire group of young people in order to guard against the result
of an incompetent minority within the group. We do not do this for stroke
patients or people with a brain injury; legally on the basis only of the fact of stroke or brain injury these
people cannot be declared incompetent. A finding of incompetence would require
more than this – the assessment of one or more qualified professionals. Thus
the idea of non-emancipation of adolescents in order to protect the minority is
a violation of the Statistical Parity Principle, since a significant fraction
of those with strokes and brain injuries are in fact incompetent to make
decisions for themselves, and yet we do not use this “protect the minority”
reasoning for them.
It
may be objected on the grounds of some recent research that “raw” cognition
reaches adult-like values sooner than psychosocial maturity [3] . This is based on a number of
sub-studies outlined in Table 2 of this source. One of these sub-studies [4] has a set of data presented in a manner similar to the MacArthur
study data mentioned earlier. In this study, the “resistance to peer influence”
for the community sample of 13-year-olds is 3.09 ( 0.48) and for the
23-year-olds (adults) is 3.46 (0.43). Even though the age at which fully adult
values is attained is fairly high, the mean for the 13-year-old group is
within one adult standard deviation of the adult mean. So what is purported
to suggest against a lower age of
majority, upon closer examination,
actually supports a lower (13 years) age of majority, once one uses the
Parity Principle and the Statistical Parity Principle. This is true even for
slightly younger kids based on these numbers, however the same cannot
necessarily be said of other studies. The support for lowering the age of
majority to 13 years of age requires one more thing, which I will call the
Adult Variation Equivalence Hypothesis:
|
The typical 13-year-old, on any reasonable measure |
The challenge to those who want to argue
against lowering the age of majority to 13 years of age, is to demonstrate an
example case where the Adult Variation Equivalence Hypothesis does not hold. To
the author’s best knowledge, there are no known exceptions.
It may be objected that youth lack some
necessary amount of “life experience” to be competent at being the ultimate
decision-maker for themselves; however the question arises as to why this lack
of life experience does not seem to result in any corresponding deficits in
judgment capacity as measured by any of the aforementioned sources. Furthermore,
if a lack of “life experience” were so crippling to a person’s judgment, we
should expect to see older people (let’s say, over age 50 or so) have
outstanding success in areas of life that require complex social skills, and we
would expect to see younger people, even past the age of 18, have problems
relative to those in later decades of life. Yet this is not true in all fields.
For example, many of the most successful businesses in the modern world were
started by people in their younger years, demonstrating that they possess very
powerful social skills at least as often as those at more advanced ages. This
should throw serious doubt on, if not outright refute, claims that one needs a
large amount of accumulated “life experience” to be a competent member of
society. The empirical data on young people’s judgment and the age distribution
of entrepreneurs suggest no detectable “life experience” effect operating
independently of cognitive development. Therefore it seems warranted to
consider only cognitive development and decisional judgment in various
scenarios as relevant, and that the number of years of accumulated “life
experience” is at most an insignificant factor .
The author makes the bold, radical
suggestion that 13 years is the proper choice for the legal age of majority. This
is further supported by bioevolutionary considerations (puberty). The author is
not suggesting that the parental financial duties end at that age until the
education system is reformed to allow for it. In the meantime, adolescents
should be treated in the same way as adults who are not financially self-sufficient for other reasons but who are nonetheless
competent (e.g. injury, unemployment, stay-at-home-parent, divorcee claiming
alimony).
Sources
[1] (Hodgson v. Minnesota, 497 U.S. 417 (1990) ).
[2] (Grisso, Thomas, Laurence Steinberg, Jennifer Woolard, Elizabeth Cauffman, Elizabeth Scott, Sandra Graham, Fran Lexcen, N. Dickon Reppucci, and Robert Schwartz. "Juveniles' Competence to Stand Trial: A Comparison of Adolescents' and Adults' Capacities as Trial Defendants." Law and Human Behavior 27.4 (2003): 333-63. Univ. of California, Riverside. Web. 16 May 2017.
[3](Steinberg, Laurence, Elizabeth Cauffman, Jennifer Woolard, Sandra Graham, and Marie Banich. "Are Adolescents Less Mature than Adults?: Minors' Access to Abortion, the Juvenile Death Penalty, and the Alleged APA "flip-flop."" American Psychologist 64.7 (2009): 583-94. Univ. of Colorado, Boulder. Web.)
[4] (Steinberg, Laurence, and Kathryn C. Monahan. "Age Differences in Resistance to Peer Influence." Dev Psychol. 43.6 (2007): 1531-543. U.S. National Inst. of Health. U.S. National Library of Medicine, 19 Nov. 2009. Web. 16 May 2017.)
