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Children’s Rights (Stanford Encyclopedia of Philosophy)

In Best Interest of the Child, children legal status, children's behaviour, Childrens Rights, Civil Rights, family court, Family Court Reform, Family Rights, fatherlessness, fathers rights, kidnapped children, motherlessness, mothers rights, Parental Kidnapping, Parental Relocation, parental rights, Parental Rights Amendment, Parents rights, Rooker-Feldman Doctrine on June 23, 2009 at 3:40 am

Children’s Rights (Stanford Encyclopedia of Philosophy)

Children’s Rights

First published Wed Oct 16, 2002; substantive revision Fri Oct 13, 2006

Children are young human beings. Some children are very young human beings. As human beings children evidently have a certain moral status. There are things that should not be done to them for the simple reason that they are human. At the same time children are different from adult human beings and it seems reasonable to think that there are things children may not do that adults are permitted to do. In the majority of jurisdictions, for instance, children are not allowed to vote, to marry, to buy alcohol, to have sex, or to engage in paid employment. What makes children a special case for philosophical consideration is this combination of their humanity and their youth, or, more exactly, what is thought to be associated with their youth. One very obvious way in which the question of what children are entitled to do or to be or to have is raised is by asking, Do children have rights? If so, do they have all the rights that adults have and do they have rights that adults do not have? If they do not have rights how do we ensure that they are treated in the morally right way? Most jurisdictions accord children legal rights. Most countries—though not the United States of America—are also signatories of the United Nations Convention on the Rights of the Child which was first adopted in 1989. The Convention accords to children a wide range of rights including, most centrally, the right to have their ‘best interests’ be ‘a primary consideration’ in all actions concerning them (Article 3), the ‘inherent right to life’ (Article 6), and the right of a child “who is capable of forming his or her own views … to express these views freely in all matters affecting the child” (Article 12) (United Nations 1989). However it is normal to distinguish between ‘positive’ rights, those that are recognised in law, and ‘moral’ rights, those that are recognised by some moral theory. That children have ‘positive’ rights does not then settle the question of whether they do or should have moral rights. Indeed the idea of children as rights holders has been subject to different kinds of philosophical criticism At the same time there has been philosophical consideration of what kinds of rights children have if they do have any rights at all. The various debates shed light on both the nature and value of rights, and on the moral status of children.

1. Children and Rights

Article 1 of the United Nations Convention defines a child as any human being below the age of eighteen years ‘unless,’ it adds, ‘under the law applicable to the child, majority is attained earlier’ (United Nations 1989). In what follows this definition will be assumed. Some think it obvious that children do have rights and believe that the only interesting question is whether children possess all and only those rights which adults possess. Others are sceptical believing that given the nature both of rights and of children it is wrong to think of children as right-holders.

One background worry against which such scepticism may be set is a currently oft-expressed concern at the proliferation of rights. Rights are, so it is alleged, now promiscuously ascribed in two ways. First, the list of right-holders has been extensively lengthened. Second, many more demands are expressed as rights claims. The concern is properly understood as one that the prodigality of rights attributions is damaging to the cause of rights. If you give away too many rights they may cease to have the value and significance they once had, and ought still to have. A favoured metaphor in this context is monetary: the inflation of rights talk devalues the currency of rights (Sumner 1987, 15; Steiner 1998, 233). That currency is indeed precious for it is almost universally accepted that rights, insofar as they exist, are things whose possession is of very great advantage to their owners.

This thought must trouble the defenders of children’s rights since, after all, talk of children having rights has post-dated the introduction and general acceptance of rights talk as such. There are, however, more particular reasons for being suspicious of the idea that children have rights. To appreciate these it is necessary to be clearer about the language of rights. With respect to rights in general we can inquire as to what it is for someone to have a right, or, put another way, what does being a right-holder consist in. There are here two competing accounts, one of which is seen as fatal to the idea of children as right-holders. We can ask a different question, namely what must be true for there to be rights. That is, we can try to specify what have been called the ‘existence conditions for rights’ (Sumner 1987, 10-11). We can also construct a taxonomy of the different kinds of rights. Finally we can ask what the moral significance of having a right is, or what weight rights have. Some for instance have viewed rights as being absolute such that the fact of a person’s possession of a right is sufficient to outweigh or discount all other moral considerations (Nozick 1974). Others believe the possession of rights to be a weighty consideration but not so weighty as to outbalance every other moral claim. With regard to any acknowledged right we can identify it by means of its content (what is it a right to?) and its scope (who has it and against whom do they have it?), as well as its weight relative to other rights and to other moral considerations. Some believe that rights never conflict. But, if they do, we need to know which right should have priority. Not all of these questions are relevant when we want to focus on the particular issue of whether or not children have rights, and, if so, which ones. However the first question raised above is especially salient.

What is it for someone to have a right? Here there are two competing theories whose respective virtues and vices have been extensively debated without either gaining evident or agreed supremacy. In one camp is the will or choice theory (Hart 1973; Sumner 1987; Steiner 1994); in the opposing camp is the welfare or interest theory (MacCormick 1982; Raz 1984; Kramer 1998). The first theory sees a right as the protected exercise of choice. In particular to have a right is to have the power to enforce or waive the duty of which the right is the correlative. What it means, on this theory, for me to have the right to education is for me to have the option of enforcing the duty of some other person or persons to provide me with an education, or to discharge them from the responsibility of doing so. The second theory sees a right as the protection of an interest of sufficient importance to impose on others certain duties whose discharge allows the right-holder to enjoy the interest in question. What it means, on this theory, to have a right to education is for me to have an interest in being educated which is so important that others are under an enforceable duty to provide me with an education. It is natural to think that each theory is more appropriate for certain kinds of rights. The will theory fits rights actively to do things (to speak, to associate with others) whereas the interest theory fits rights passively to enjoy or not to suffer things (to receive health care, not to be tortured). However the distinction between the theories of what it is to have a right is not the distinction between different kinds of rights, even if there are important relations between the two distinctions.

The will and the interest theory is each alleged to have failings. But interestingly in this present context one defect of the will theory is—so its critics argue—its exclusion of some humans from the category of right-holders. This is because whilst all humans, and perhaps many classes of non-humans such as animals, have interests that ought to be protected, not all humans have the capacity to exercise choice. Children—along with the severely mentally disabled and the comatose—cannot thus, on the will theory, be the holders of rights. For at least one prominent defender of the interest theory the fact that children evidently do have rights is sufficient to display the falsity of the will theory, thus making children a ‘test-case’ for the latter (MacCormick, 1982). Of course someone who is convinced of the correctness of the will theory might readily concede that the theory entails the denial of rights to children but see no reason to abandon the theory. For her the entailment is not, ‘Children have rights. Therefore, the will theory is false’. It is, ‘The will theory is true. Therefore, children cannot have rights’.

Obviously different claims are being made and the same claims are playing distinct roles in different arguments. The claims in question can be set out as follows:

  1. Rights are protected choices
  2. Only those capable of exercising choices can be right-holders
  3. Children are incapable of exercising choice
  4. Children are not right-holders
  5. Adults have duties to protect the important interests of children
  6. Rights and duties are correlative
  7. Children are right-holders

To explain (6). An important claim held by many is that for each and every right there is a correlative duty. To say that I have a right to something is to say that someone else has a duty to me in respect of that thing. The correlate rights and duties are, as it were, simply the two sides of one and the same single coin. This of course does not mean that there may not be some kinds of duties which do not correlate with any rights. Indeed some critics of children’s rights will concede that adults have duties to protect important interests of children but deny that these interests correlate with rights held by children. Now clearly (4) and (7) contradict one another: either children are right-holders or they are not. (4) follows from (2) and (3). (2) expresses the will theory. (3) is obviously a contestable, and contested, claim. But insofar as children cannot exercise choice and are required to do so on the will theory if they are to have rights, then it follows that they cannot have rights. (7), on the other hand, follows from (5) and (6) which give expression to the interest theory, although they do so only insofar as the duties adults have in respect of children are such that they do correlate with rights held by children. If they do then as things stand either the will theory is true and children do not have rights, or the interest theory is true and they do. Or, put another way, either children have rights in which case the will theory cannot be true, or they do not in which case that theory could be true.

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