Friday, September 13, 2013
Robert van Krieken (University of Sydney) has posted Doli Incapax and Its Vicissitudes: Childhood and Criminal Responsibility in England, Germany and Australia on SSRN. Here is the abstract:
This paper examines the various ways in which the criminal responsibility of children has been understood in England, Australia and Germany, developed a comparative legal culture analysis of the legal construction of childhood and moral community. It examines whether we have been able to lay the social foundations for the political, moral and legal capacity to reflect on the normative complexities of crimes committed by children and what they mean for all of us as a moral community, rather then approaching them with an over-simplified model of full, isolated and individual legal subjectivity. It argues that the abolition of the doli incapax presumption and the reduction of the age of criminal incapacity simply makes particular children bear the full weight of the social disappointment in the disjunction between ideal and real children. Only a social order which promotes a considered engagement with the complexities of concepts such as doli incapax and Strafunmündigkeit within a changing social construction of childhood, one which allows us to disentangle societal concerns with the guilt and innocence of an abstract ‘childhood in general’ from the practical response to particular real children, will begin to provide a foundation for approaching it with some civilized integrity.