Document Type

Article

Publication Date

1992

Center/Program

Center for Gender & Sexuality Law

Abstract

SEW people believe that five year olds and fifteen year olds think, act or make decisions in the same way. The question is whether and how the law should respond to developmental differences.' Traditionally, childhood and adulthood have been two dichotomous legal categories, demarcated by the age of majority. This conception has been contested in recent years, as has the premise that all minors are incompetent to make decisions and function as legal actors. Fueled by the controversy over adolescent access to abortion, an advocacy movement has emerged that challenges the authority of parents and the state over the lives of young people. For some advocates, the claims of adolescents to self-determination are a natural extension of the liberal ideology that forcefully emerged in the civil rights movement of the 1960s.2

Although this "children's rights" movement is driven by politics and ideology, the case for changing the legal status of minors rests in large part on empirical grounds; indeed, many leading proponents are psychologists.3 From the start, critics of traditional policies have turned to child development theory and research to support arguments that children, particularly adolescents, should be given greater legal autonomy.4 Paternalistic legal treatment is based on the presumption that minors, due to their immaturity, are incompetent to make their own choices. This premise, advocates argue, has now been discredited by social science research and theory that demonstrate that by age fourteen adolescents are indistinguishable from adults in their decisionmaking competence. 5 This evidence, it is said, seriously undermines the justification for different legal treatment.

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