Law

Basically, far too many people have seen descriptors like “not fully developed” and taken that to mean it’s like a partially assembled Ikea bookshelf; a work in progress, something that will be able to do it’s job when it’s done, but not until then”.

That’s not how brains work, though. At every stage of development, they’re ‘functional’. Young brains allow us to walk, speak, perceive, connect, deduce, calculate, coordinate, decide, respond, focus, retain, and all the other stuff your standard human brain does all day every day to successfully navigate our increasingly complex world. 

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Why do people insist otherwise? Unclear. But it’s not based on any particular scientific study or claim. At best, it seems to be a corruption/misunderstanding of a few older studies into brain development, ones which mentioned, or only used subjects under the age of, 25. But didn’t make any grand claims about this being some developmental cut-off point, or the moment when your brain dings like a microwave, to let you know that it’s ‘done’.

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Let’s be clear; more often than not, anyone invoking the ‘people under 25 years old don’t have functional brains’ argument, is doing so to support their position or beliefs, whatever they may be.

That’s why someone can be deemed too young to understand the decision to, say, get an abortion, and simultaneously be declared mature enough to have and raise a baby.

Or young men under 25 can be ‘too young’ to be expected to stop themselves from committing crimes like sexual assault, but are definitely old enough to receive the full adult punishment for joining a terrorist organisation, or entering another country by non-legal means. And so on. 

The basic idea behind the model of Systems Intentionality may be simply described, and applies equally to corporate and natural defendants. Diamantis has explained how natural persons commonly make use of “extended mind” supports, which are external systems or cognitive aids (such as recipes, maps and notes or records) to facilitate recall and decision-making. So too, I say, corporations adopt systems of conduct that enable them to make and implement decisions consistently and repeatedly, and respond purposefully to events. Indeed, having (unlike humans) no natural memory or cognitive capacity, corporations necessarily employ systems of conduct to direct, coordinate and manage the changing and fallible human (and other corporate) personnel that carry out corporate purposes, over time. The same holds true where human elements within the system are entirely replaced by self-executing (automated) processes.

The critical point is that, on my model, such systems exist in order to achieve some outcome (whether it be coordinated conduct, or consistent output). Thus, Australian courts have described the concept of a system as “an internal method of working”; “something designed or intended in its structure”.35 On this approach, a “system of conduct” is inherently purposive in nature: a “co-ordinated body of methods, or a complex scheme
or plan of procedure”. It is an organised connection of elements operating in order to produce the conduct or outcome.

Following this line of thought, once an adopted system of conduct is identified, it becomes possible objectively to assess the system to characterise the associated intention and other mental states. Here, the heart of the model is the proposition that corporations manifest their intentions through the systems of conduct that they adopt and operate, both in the sense that any system reveals the corporate intention and in the sense that it embodies or instantiates that intention. Another way of putting this is to say that corporations think through their systems—and so assessment and characterisation of the system enables us to know the corporate state of mind. No process of “inference” is required. The same is true of policies and practices, which may be understood as systems operating at higher levels of generality (in the case of policies) and as arising organically (in the case of practices). It becomes possible, from these humble beginnings, to determine from the nature of systems adopted by a corporate actor the spectrum of mental states commonly demanded by the law (such as general and specific intention, knowledge, mistake, recklessness, dishonesty and unconscionability).