Here there are two competing theories whose respective virtues and vices have been extensively debated. In one camp is the will or choice theory Hart ; Sumner ; Steiner ; inthe opposing camp is the welfare or interest theory MacCormick ; Raz ; Kramer 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. 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.
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.
In this present context one alleged defect of the will theory is——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. 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.
The claims in question can be set out as follows. These are not premises in a single argument. Rather they are claims made and conclusions drawn by the different theories of rights. In particular claims 1—4 are made by the will theory, and claims 5—7 by the interest theory. 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.
This of course does not mean that there may not be some kinds of duties which do not correlate withany rights. Now clearly 4 and 7 contradict one another: either children are right-holders or they are not. 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.
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. A will theorist who did not want to deny that children have rights might deny 2.
He might say that although it is true that children are themselves incapable of exercising choice it does not follow that they cannot still be possessors of rights. For children might have representatives, such as most obviously their parents or guardians, who could exercise the choices on behalf of the children. The representatives would choose for the children as the children would choose if they were capable of choosing for themselves.
This proxy exercise of choice would take place only during the period when the children were incapable of exercising choice and in acknowledgment of the fact that the children will eventually be capable of exercising their own choices. Now such a modification must meet a number of challenges. First, how should the representatives be selected? Think of the representation of children as like a trust. The children entrust their decision-making to their representatives who are thus their trustees. Now, second, are the terms of the trust sufficiently clear and determinate?
Is it, for instance, perspicuous and evident what a child would choose if capable of choosing? Note that the criterion is not what is in the best interests of the child for, consistent with the will theory, we must appeal to choices rather than interests. It is not easy to say what some adult who cannot currently choose—because she is, for instance, temporarily comatose—would choose if able. It is even harder in the case of someone, a child, who is for the period of childhood simply incapable of making any choices.
Third, how is the trust to be enforced and by whom? The representative may be presumed to have a duty to choose as the child would choose if able. If rights are correlative with duties then someone other than the representative and the child must be in a position to enforce or waive this duty. Could this be the state or its representative? Moreover, the will theorist can make two further points. First she might accept 6 —that rights and duties are correlative— but deny or at least significantly modify 5 —that adults have duties to protect the important interests of children.
She could say that the duties that are rightly specified under 5 are not the duties that correlate with rights. This is just to say, as all rights theorists will repeatedly say, that rights do not exhaust the moral domain.
Children’s Rights (Stanford Encyclopedia of Philosophy)
What we must do because others have rights against us is not everything we must morally do. It is not the claim that for each and every duty there is a correlate right. So we should, as adults, ensure that the interests of children are protected and promoted. It does not follow that they have rights against us. Second a will theorist might accept 5 and 6 as they stand but say that the rights which correlate with these duties are possessed not by the children but by adults who are in the best position to protect the children. Thus even if the duties adults have in respect of children do correlate with rights it does not follow that the rights in question are held by those whose interests they protect.
Indeed it might be argued that it does not matter whether the rights are possessed by those whose interests they protect. Does it really matters whether the rights that correlate with adult duties to children are held by the children or by those who would act as best they could for the children? Steiner , There may of course be other considerations that tell against the will theory and in favour of the interest theory; or the converse.
Grant that on either account of what it is to have a right children could, in principle, be the holders of rights. Ought children to have rights? And, if so, what rights should they have? Note that the rights can be moral or legal. Children do have rights in law under the UN Convention most notably.
These need not be accepted as moral rights. However someone could believe that the best way, on balance, to protect the interests of children is by continuing to accord them the legal rights they have under something like the Convention. Someone might also believe that children should have legal rights but not those they are currently accorded. Conversely, if children do have moral rights, these need not be enshrined in law, although there would evidently be a strong presumption that they should. In the first instance the question is whether children should have moral rights.
If they should then there would be a good case for thinking that these should be legally protected rights. We can distinguish real from rhetorical liberationists. The latter are those who see the demand for equal rights for children as a means both of drawing attention to the discrimination that children suffer by comparison with adults in their treatment and for improving their condition.
A rhetorical liberationist does not actually believe that children should be the equals of adults. Rather he thinks that claiming as much is the best way of advancing their interests. A real liberationist does view children as the equals of adults. Then there are those who think that children should have some but not all of the rights which adults have.
Finally there are those who think that children should not have any rights. Or, put less brusquely, they are sceptical, for theoretical and political reasons, about attributing rights to children. Their case is made in three ways. The first is to assert what liberationists deny, namely that children are not qualified as adults are to have rights. The second is to argue that the ascription of rights to children is inappropriate because it displays a misunderstanding of what childhood is, what children are like, or what relationships children stand in to adults.
The third is to argue that, notwithstanding their lack of rights, children can be assured of adequate moral protection by other means. Let me take the first claim first. The question of qualification is the question of whether children have the requisite capacity for rights. On the will theory of rights the relevant capacity qualifying children for possession of rights is that of the ability to choose. But there is a more general issue of capacity that is in dispute whatever theory of rights is defended and that follows from attention to the fact that rights have a content.
Each right is a right to do, to be or to have something. Arguably only those rights can be possessed whose content can be appropriately attributed to their owners. A right to free speech cannot properly be possessed by an entity incapable of speech. One conventional way to think of rights in terms of their content is to distinguish between freedom rights rights to choose, such as to vote, practise a religion, and to associate and welfare rights rights that protect important interests such as health.
Children in general lack certain cognitive abilities—to acquire and to process information in an ordered fashion, to form consistent and stable beliefs, to appreciate the significance of options and their consequences. They also lack certain volitional abilities—to form, retain and act in the light of consistent desires, to make independent choices. Children are not unique amongst humans in this respect. Those adults who are seriously mentally impaired are also disqualified in this sense.
Which is of course just to say that these adults are childlike. Children are unique in the following regard. Not all humans are seriously mentally impaired, but all humans were once children. Thus every one of us was, during our early years, not qualified to be a holder of rights even if now we are so qualified. It is worth distinguishing — as Schapiro , does — between two ways in which a child is, relative to an adult, incapable.
On her account the capacities a child lacks are not those of making good choices, but those of making any choices as such.
- An encyclopedia of philosophy articles written by professional philosophers..
- Geographic Literacy Through Childrens Literature.
- Making possible your impossibilities.
- Smaller families | Population Matters | Sustainable World Population | Every Choice Counts.
- Children of China - Humanium;
Someone incapable of choosing cannot have a right whose content is a fundamental choice. If, as some maintain, all human rights are best interpreted as protecting human agency and its preconditions, then it would follow that those incapable of agency, such as young children, should not be accorded human rights Griffin On the other hand it could be maintained that whilst children lack agency they certainly have fundamental interests meriting protection and thus at least have welfare rights Brighouse Moreover it can be important to recognise that children become beings capable of making choices and that rights may be attributed in recognition of this gradual development Brennan The second claim that may be made in denying rights to children is that the ascription of rights to children is inappropriate because it displays a misunderstanding of what childhood is, of what children are like, or of what relationships children do or ought to stand in to adults.
This claim comes in various forms. There certainly exist what are called perfect obligations. These are obligations that are either owed to all children or to some specified set of children. They are perfect in that it is completely specified whom they are owed to and what is owed to them. We all are obliged not to maltreat any child and parents have a particular duty to care for their children.
But then there are imperfect obligations which are those of caring for children to whom we do not, as parents for instance, have specific obligations. All adults owe these but they are not owed to all children how could they possibly be? Perhaps then we can agree that we are all under a duty to prevent the abuse of children.
But clearly we cannot, as individuals, each act to stop every child being abused. Moreover what we ought to do—for instance, by reporting suspected cases of abuse—will depend on the circumstances, and also on what is in place by way of particular institutions and laws to deal with child abuse. Crucially whilst perfect obligations correlate with rights, imperfect obligations do not. This means that anyone who starts and finishes thinking about what morally is owed to children in terms of their rights is unable to capture what imperfect obligations express.
Yet this is to miss much of what is most important about the way in which, morally, we should as adults stand in relation to children. For the fulfilment of these imperfect duties of care and concern is what centrally protects and promotes the lives of children as children. She does not deny that perfect obligations correlate with rights. Thus to the extent that we do have perfect obligations to children they do have corresponding rights.
But why should we think that? The imperfect obligations are fundamental ones. They are not supererogatory, that is beyond duty. Adults must show consideration and kindness to children in general. So why cannot children claim such kindness and consideration from adults as their right? But she adds that the obligations of, say, the social worker exceed the positive obligations associated with her job. However this is true of all our obligations, whether perfect or imperfect.
A parent can have positive, that is legally recognised and sanctioned, duties to her child. Yet her perfect obligations to her children are not exhaustively specified by what the law requires of her. As an argument it thus bears some comparison with a view that expresses general scepticism about rights in the context of adult-child relations and which emphasises the particular character of the family Schrag ; Schoeman This view draws attention to the quality and nature of the relationships within a family.
These are marked by an especial intimacy and by deep, unconditional love between its members. One can grant that many families do not conform to this ideal and yet acknowledge that when the family does conform to the ideal it is a distinctive, and distinctively valuable, form of human association. What arguably follows from this ideal of the family is the inappropriateness of asserting or claiming rights. For to do so would be to subvert and ultimately destroy what constitutes the family as the distinctive form of human association it is. Appeal is being made here to a familiar and oft-drawn distinction between two ways in which individuals engaged in a common enterprise or bound together in some enduring association can be assured of their beneficent, or at least minimally good, treatment of one another.
One way is by the recognition—in law or custom or shared morality—of rights that all individuals can claim, or by rules of justice—similarly and generally recognised—which provide an assurance of fair treatment. Another way is by reliance on the dispositions or attitudes that the individuals bound together have—spontaneously and naturally—towards one another.
Thus, for instance, if each is motivated by general benevolence in respect of all then no one has any need to claim or assert what is due to him as of right or rule. In the case of the family, it is argued, neither justice nor benevolence suffices but love does. Of course children may have rights against those who are not family members a right, for instance, that their school teachers provide them with information and skills.
Some rights are held against particular individuals. Others, including the most important ones, are held against everyone, including parents and other family members. A further and quite distinct allegation is that not only is there no need for any such claims, but that allowing them to be made will erode, and in due course destroy, the dispositions and attitudes that rendered the need for rights and rules of justices unnecessary in the first place. This further claim is an influential one in the general critique communitarianism makes, within political philosophy, of what is characterised as a rights-based and individualistic liberalism see, for instance, Sandel , 32—5.
In the context of the family the claim is that granting its members rights will subvert and bring about the end of the love between them that made rights superfluous in the first place. The arguments considered thus far have appealed to the role that rights generally do and should play in our moral lives.
A further argument considers what would actually follow from granting rights to children Purdy The argument is that we need as adults to have acquired certain traits of character if we are to be able to pursue our goals and lead a valuable life. To acquire these traits it is essential that we not be allowed as children to make our own choices. Granting children the liberty to exercise rights is destructive of the preconditions for the possibility of having fulfilling adult lives.
The central, and empirical, premise in this argument is that children do not spontaneously and naturally grow into adults. They need to be nurtured, supported, and, more particularly, subjected to control and discipline. Without that context giving children the rights that adults have is bad for the children. It is also bad for the adults they will turn into, and for the society we share as adults and children. The third step in defence of the denial of rights to children is to provide reassurance that such a denial is not bad for children.
One can thus maintain that rights do not exhaust the moral domain. There are things we ought to do which do not correspond to the obligations we have as the correlates of rights. As adults we should protect and promote the welfare of children. It need not follow that they have rights against us.
But does not talk of the rights of children nevertheless still serve a political or rhetorical function by reminding of us of what must be done for them? Might not such talk also serve as a critique of the extent to which we, as adults, may maintain children in an artificial condition of dependence and vulnerability, denying them the opportunity to make their own choices? Are not children one of the last social groups to be emancipated as others—women, blacks—already have been, and is not the language of rights the appropriate mode in which to campaign for that emancipation?
This is that childhood is not a permanently maintained status associated with oppression or discrimination. It is rather a stage of human development which all go through. Moreover the adults who deny that children do have rights may nevertheless also believe that it is their duty to ensure that the children for whom they have care do pass from childhood into adulthood. The first claim in the defence of the denial of rights to children is that children are disqualified by virtue of their incapacity to have rights.
Liberationists dispute this. Liberationists can allow that the key to the appropriateness of giving or not giving rights to children turns on capacity Cohen ix. They will argue, however, that children are not disqualified from having rights by virtue of their lack of a capacity that adults do have. Note that on this view children are entitled to both welfare and freedom rights whereas those who concede that children lack the latter in virtue of a certain incapacity can still insist that they ought to have welfare rights where such an incapacity is not relevant.
There are two respects in which this liberationist case might be modified or qualified.
One child: Do we have a right to more?
The first is in its scope. The liberationist might claim that all children are qualified to have rights, or she might claim only that some children are so qualified. The latter is the more plausible position in view of the fact that the very young infant is evidently incapacitated. Indeed some liberationists seem to recognise as much even whilst they insist that every child should have rights Farson , 31, , and If the scope of the liberationist claim is thus limited it does not amount to the view that no line dividing human rights holders from humans who lack rights should be drawn.
Rather it is the view that such a line has been drawn in the wrong place. A second possible qualification of the liberationist view is that giving rights to children will play an important part in their acquiring the qualifying capacity. It is not thus argued that children are capable now and are illegitimately denied their rights. It is rather that they will only—or at least will more readily or will at an earlier stage—acquire that capacity if given their rights. The denial of rights to children is, on this account, one significant element in a culture that serves artificially to maintain children in their childlike state of dependence, vulnerability, and immaturity.
Again the qualification can concede that children of a very young age are not capable enough to have rights, and will not acquire that capacity even if given rights. Yet it insists that the denial of rights to children of a certain age on account of their alleged incapacity is simply self-confirming.
They cannot have rights because they are incapable but they are incapable only because they do not have these rights. One plausible version of the claim refers to the facts of experience. Children, or at least children of a certain age, may not differ markedly from adults in respect of their cognitive and volitional capacities. They may be as capable as older humans of making their own minds up about what to do and be as independent in their resolution to act on their choices.
But they may simply not have had as much experience of the world as their adult counterparts. Grant that such a lack of experience can be attributed to a lack of opportunities to exercise choice.
What’s the most effective way to increase fertility?
If such a lack of opportunity is in turn attributable not simply to not having been around for as long but to a denial of the freedom to make their own choices, then there is a powerful case for liberty rights being extended, even if cautiously, to these young people. There are different ways in which the liberationist claim about capacity—whether qualified or not—can be made.
For example it may be said that children can make choices if what this means is expressing preferences. Of course the response is that the ability to choose, thus minimallydefined, is indeed possessed by children even fairly young children but it is not a capacity sufficient to qualify for rights ownership.
What is needed for that is more than simply the ability to express or communicate a desire; what is needed is an ability to understand and appreciate the significance of the options facing one, together with independence of choice. But the animal does not have a general capacity of choice sufficient to qualify it as a holder of liberty rights. Liberationists might move in the other direction and argue that the capacity which qualifies adults to have rights is in fact not a capacity that most, or perhaps any, adults actually possess. Thus it will be said that no adult fully understands the nature of the choices she faces, nor is she consistent in her beliefs and desires, nor is she really independent of the influences of her environment and peers.
This is that the alleged differences between children and adults in respect of a qualifying capacity are not sufficient to warrant the ascription of rights to the latter and their denial to the former. One way then to charge that age is an arbitrary means of distinguishing those qualified and those not qualified to have rights is that there is, in fact, no real division of capacities.
Thus, either it will be said that this age is the wrong dividing point or that using any age is wrong. The first objection may concede that there is a better age to be used, just as the second objection may concede that there is a way, better than using age, to mark the division. The initial and obvious reply to the second objection is that age as such is not the issue but rather the reliable correlation of age with the acquisition of those capacities that qualify a person for the attribution of rights.
Some liberationists may thus not dispute that there should be a threshold age—one beyond which adult rights are acquired—but think that the conventional or orthodox threshold is fixed too late. Liberationists may also simply deny that there should be any threshold on the grounds that there just is no difference between children and adults in respect of their respective capacities for any threshold age to mark. This version of the arbitrariness claim concedes that if age functions as a threshold it does so only inasmuch as it reliably correlates with the acquisition of capacities which are necessary qualifications for the possession of rights.
In sum, the arbitrariness claim amounts either to the denial that the acquisition of the specified capacities does correlate with the threshold in question or to the denial that there is any age at which the capacities are acquired. There are two ideas. The first is that although the threshold of age does serve to mark a difference within the class of human beings it is being human as such which is important. Or, relatedly, what is being distributed, namely rights, is so important that all humans should have them.
It is being human which should make the difference not being of a certain age. Rights are too important to be denied to some humans on account of their lesser age and given to others on account of their greater age. The reply is simple. Being human does matter and it is precisely because they are human beings, albeit young ones, that children are entitled to be treated in ways that non-humans may not.
However it is rights that are being distributed and to that end a threshold age does mark a significant point. Although having rights is better than not having them, those who lack rights do not lack any moral status whatever. Children are acknowledged to be humans and yet to be young humans.
However, it may still be insisted that a threshold age does not mark a significant enough difference. A year-old differs greatly from a 4-year-old. Someone who is 18 years and 1 month does not differ greatly from someone who is 17 years and 11 months. It is understandable that the year-old should have rights whereas the 4-year-old should not.
But this is not the case for the latter pairing. This is a point about the extent to which real differences between classes are displayed by the members of each class at the edge of these classes. The reply will be that the criticism concedes a difference between being too young to have rights and being old enough to have them. These differences are not arbitrary. Moreover a threshold has to be fixed.
The fact that there may not be significant—or significant enough—differences between the members of the two classes being distinguished at the edges of each class is the price one pays for having to operate with a threshold. But is this price one that has to be paid? The complaint is that age does not always reliably correlate with competence. Thus using age may risk unfairly penalising some who are in fact competent just as it may risk unfairly rewarding some who are in fact incompetent.
Moreover the penalties and rewards in question—lacking or possessing rights—are far too important to run such risks. Why then should one not take each individual on her own and determine whether or not she is qualified be have rights? The problems with the suggested use of a test are various.
- The Codification of Medical Morality: Historical and Philosophical Studies of the Formalization of Western Medical Morality in the Eighteenth and Nineteenth ... Jurisprudence in the Nineteenth Century.
- Representing Rape: Language and sexual consent;
- One Child: Do We Have a Right to More? - Oxford Scholarship.
- Understanding Children’s right to life - Humanium?
- Can China recover from its disastrous one-child policy? | World news | The Guardian.
First, there is the sheer administrative scale of its employment in such a case as human rights. Second, there is the problem of agreeing a determinate procedure for testing. How exactly are we to examine someone in respect of their competence to possess rights? Third, there is the problem of fairness. Any test must not unfairly disqualify some group of putative rights-holders by, for instance, having a bias in the testing procedure which, in effect, discriminates against that group.
Fourth, the administration of any official test—and especially one whose passing yields such important goods—is subject to the risks of corruption or of misuse for the self-interested ends of those administering it. Again this can not be true of the use of age as a threshold. To summarise, these problems attaching to the use of a test are large and insuperable. The charges of arbitrariness can be argued to be false or overstated. Children do differ from adults in respect of their competence to possess rights. A threshold of age may be the appropriate way to register that difference.
One should, thus, acquire rights only on reaching a certain age. However, two riders to this summary are appropriate. They must guarantee a protection that is suitable for all children, regardless of their social or ethnic origins. We aim to raise Skip to content. The right to life is the right not to be killed The right to life means also the right not to be killed.
So with a national birth rate well below replacement level of 2.