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Historical Links Between Children, Justice, and Democracy

NCJ Number
Hamline Journal of Public Law & Policy Volume: 28 Issue: 1 Dated: Fall 2006 Pages: 339-356
Holly Brewer
Date Published
18 pages
This paper explains what occurred in the 17th and 18th centuries in England to change the legal status of children, with attention to the work of the key common-law reformers (Coke, Hale, and Blackstone) who reshaped the understanding of "informed consent" in the law.
At issue in the change in children's legal status were the qualities required to make an informed decision upon which one could be bound by the law. The change that occurred in England in this domain of debate changed society's view of a child's consent to marriage, to testify, to be guilty of a crime, to be elected or hold an elected office, to serve on a jury, and to hold a political appointment. The common-law reformers mentioned in this paper gradually laid out a new set of norms about children's legal status that aimed for consistency. They focused on the issue of the ability to reason as the basis for legal capability and responsibility and how a child's age was related to reasoning ability. This paper focuses on the ability of children to be witnesses in court and their responsibility for behaviors considered criminal when committed by adults. Legislative and social norms emerged to raise the age of competency and informed consent. These norms protected children from burdensome responsibilities and liabilities that should be reserved for adulthood. The challenge that emerged under these new norms, however, was to ensure that excluding children from competency would not also deny their humanity and their rights in a democratic society. 36 notes