“Many in U.S. Are Arrested By Age 23, Study Finds” is a headline on page A15 of today’s (Monday 19 December 2011) New York Times. The data on which this conclusion was based come from queries of young people who “ranged in age from 12 to 16 when they were enrolled in the survey in 1996.”
It got me to thinking about something.
The article raises in my mind an ancillary point that I have in truth for many years tried to wrap my head around. Some might say that trying a minor as an adult is a mere matter of semantics. I for one think not: to me it is, additionally, an ontological conundrum – and to my way of thinking this is one of the legal issues in this country that puts a tremendously big fat lie to the oft bruited and essentially mindless mantra that America has the finest and most humane legal system in the world – yeah, right up there, in this particular connection, with places like Somalia, Congo and Yemen, certainly a collective as august as it is desirable for the land of the free and the home of the brave to belong to. [On these so-called ‘transfer’ laws, see the article at nolo-dot-com: here.]
Let’s consider this matter in more detail, semantic as well as ontological.
I begin by positing two theoretical – if you will — linguistic categories in which inhere functionally practical consequences. My categories entail the simultaneity of: 1) complementary adjectival sets, and, 2) exclusionary adjectival sets.
Thus, as examples of the first category I would offer these simultaneities: a bar of steel can be hard and also be gray; water in a glass can be wet and also be transpar-ent. And a person can be fat and also be tall; a person can be rich and also be dirty.
For an example of the second category, think about the following simultaneities: a glass of water cannot be wet and also be dry; a bar of steel cannot be hard and also be soft. And a person cannot be rich and also poor; a person cannot be fat and also be thin.
Now, a person simultaneously can certainly be young and also beautiful, but that person simultaneously cannot be young and also old. But can a person be a minor and also be an adult? In the (to me) rather strange world of American jurisprudential logic this ontological impossibility is apparently possible.
A 13-year old girl murders, for whatever reason, a complete stranger who is 25. After the very moment when she has committed this crime her ‘boyfriend’ who is 25 has consensual sex with the 13-year old girl. Both are brought into the court system. The girl will be put on trial for murder as an adult, and the boyfriend will be put on trial for having unlawful sex with a minor: one minute the girl is an adult and in the next minute she is a minor. So what is she – ontologically speaking?
This does not compute. In my crude and untutored non-legalistic view, a finding of anything even remotely resembling a rational explication for this … what, tautology, paradox, oxymoron, paraprosdokian … is more elusive than that current love-object of high-energy particle physics, the Higgs boson — some ‘thing/energy/phenomenon’ (?) that in the bizarre world of quantum states apparently exists and doesn’t exist or maybe simultaneously it both exists and non-exists. Go figure!
No, not even by the putative rigors of Aristotelian logic does this (normatively considered) strangeness compute. In Book 7 (Z) of Aristotle’s Metaphysics (a dreadfully difficult work through whose impenetrable Greek I once slogged my unhappy way long ago and far away in a graduate seminar I had foolishly enrolled in!) and elsewhere the great one tried to come to grips with the qualitative differentiae distinguishing a thing’s accidental (κατὰ συμβεβηκός) properties and its essential (καθ΄αὑτό) properties. Thus, you could perhaps (with Aristotle, I’ll risk averring) argue that ‘wet’ is an essential property – of water, yes; but of a soaked rag it would surely be an accidental property … wouldn’t it? And similarly in the case of gray pigment, say, ‘gray’ is an essential property – but of gray hair? and in the case of a 23-year old murderer her adultness is surely an essential property – but of a 13-year old murderer?
I am not certain whether I have solved to anybody’s (including my own) satisfaction any of my long-standing discomforts here, but I have raised them. Whether the qualities that inhere in our murderer are essential or accidental, it does seem to me that the legal system erroneously conflates, or willfully obfuscates, or even ignores, their differentiae in a self-contradictory and jumbled fashion that does not stand up to serious scrutiny.
And in the quite real world of the courtroom, this willful fuzziness of ‘category’ really does appear to a non-lawyer like me to open the door to the endless abetting of prosecutorial whim and inviting the exercise of a consequently frightening and essentially arbitrary administration of justice lacking in any real accountability.
Of course the young murderer should be punished – severely. I am not arguing against that point. But I still doggedly maintain that while that 13-year-old can incontrovertibly be both a murderer [accidental quality] and a minor [essential quality] simultaneously, she really cannot simultaneously be both a minor and an adult – American law’s creepy quantum mechanics to the contrary notwithstanding.
I simply find it incoherent – and, I’m sorry, hopelessly dated romantic that I am, I want things to make sense!