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Children: II. Rights of Children

II. RIGHTS OF CHILDREN

Since about 1970, philosophical interest in the rights of children has grown substantially. This growth owes much to the social upheavals of the 1960s and 1970s, especially the civil rights and women's movements, both of which employed the rhetoric of rights. When the plights of children, homosexuals, and the disabled began to be highlighted, it was natural that advocates for these groups also used the rhetoric of rights.

The invocation of rights in connection with children, however, predated the 1960s. In 1959 the United Nations General Assembly (1960) adopted a ten-principle Declaration of the Rights of the Child , itself a descendant of one adopted by the League of Nations in 1924.

Why Rights?

Why do activists concerned with the lives of children attempt to protect children's interests by invoking the notion of rights? The key features of the rhetoric of basic rights are (1) that rights are entitlements, and (2) that they impose duties on others. To claim something as a fundamental right is to make the strongest kind of claim one can make; it is to claim that something is an entitlement, not a privilege—something it would be not merely inadvisable or regrettable, but wrong and unjust, to withhold. And, typically, if one person is the bearer of rights, some or all others are the bearers of obligations. In the case of basic rights, the responsibilities fall either on all others as individuals or on the government, which in the case of democracies means on individuals acting as representatives of the citizenry. This is easily seen in the cases of the rights of adults to free speech and to healthcare.

The rights to free speech and healthcare illustrate two broad classes of rights given a variety of names by theorists. These may be designated option rights and welfare rights respectively (Golding). The idea behind option rights is that there is a sphere of sovereignty within which the individual cannot be intruded upon by government, even for the greater good. This idea is at the heart of classical liberal theory. Option rights are rights to choose. For instance, although persons have the right to speak, they may remain silent if they wish. Welfare rights, on the other hand, are rights to direct provision of services, such as medical care, that meet a basic need.

Do both categories apply to children? The notion of option rights motivated children's rights activists who saw children as oppressed by adults. Psychologist Richard Farson stated, "Children, like adults, should have the right to decide the matters which affect them most directly. The issue of self-determination is at the heart of children's liberation" (p.27). The authors of the United Nations Declaration , on the other hand, focused almost exclusively on welfare rights. For example:

The child, for the full and harmonious development of his [sic ] personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and in any case in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother. (United Nations, p. 113)

Although some children's advocates urge recognition of both option and welfare rights, the underlying rationales are quite different. While the rationale for according children option rights conceives of minor status itself as a disabling condition that ought to be removed, the rationale for welfare rights urges that various goods and services be provided to minors as minors.

Most sensible people would look askance at putting children, especially young children, on a par with adults, insofar as freedom to live as they wish is concerned. The notion of a protected sphere of autonomous decision making is closely linked to the presence of developed capacities for rational choice, capacities that usually are only potential in young children. It may well be that the development of autonomy is impeded when children are not permitted to exercise choices in their lives, but advocating that children be given some options is a far cry from asserting that children have the same rights as adults to live their lives as they please. Paternalism, the coercion of individuals for their own good, is odious only when those coerced are capable of exercising rational choice.

Why Not Rights?

Rights discourse does have some limitations in the context of advocacy for children. An initial difficulty lies in identifying universal rights while taking account of the limited resources and diverse values of particular societies. It may not be possible in some countries to fulfill the universal right to grow up in an atmosphere of material security, due to lack of resources. A second difficulty is that alleged welfare rights may be in tension with each other—for example, the right of a child to grow up in material security and the right to love and understanding.

A danger of rights discourse derives from the fact that, taken literally, respect of children's rights may permit substantial intrusion into parents' lives. For example, should government agents monitor parents to make sure they provide their children with the love and understanding they need? A less obvious danger derives from the fact that some of a child's most important needs, such as the need for love, cannot be coerced. If love fails, must the child be taken from the parent and given to another who is known to love the child? It is apparent that the struggle for children's rights may have the potential of making parents and children into adversaries.

Alternatives to Rights

Given children's vulnerability to abuse and neglect by immediate caregivers and by society at large, what ethical bases other than rights might serve to enhance children's welfare? Philosopher Onora O'Neill (1989) suggests that Immanuel Kant's notion of imperfect duty provides such a basis. An "imperfect" duty—the duty to contribute to charity is an illustration—differs from a "perfect" duty in the latitude allowed for fulfillment; toward whom and how much the duty requires is not specified. Thus, although we all have an obligation to help the next generation not only to survive but also to develop its capacities, we may meet this obligation in different ways—some as parents, some as professional caregivers, some as taxpaying citizens. The idea is attractive philosophically, but it admittedly lacks the precision, and hence the force, of the language of rights. Since the precise nature of the duty cannot be specified, it will be difficult to determine when people have or have not done enough to help needy children.

Another stream of ethical reasoning centers on character and virtue. So-called virtue ethics takes the focus away from whether particular acts are obligatory, permitted, or forbidden, and explores the notion of a good or virtuous person, a notion it alleges is fundamental. Proponents of virtue ethics would say, for example, that the idea of a virtuous or good mother cannot be reduced to that of a mother who performs or refrains from performing specific actions viewed as duties. A decided advantage of virtue ethics is that it encourages us to ask a key question: What legal and economic structures are conducive to "good parenting"? Virtuous parents, for example, take time to be with their children, especially when they are ill, but such virtuous actions will be more likely if employed parents enjoy legal protection against punitive actions by employers for their taking family leave.

Unlike the children's rights approach, which may pit parents against children, this approach does not put parents on the defensive. But virtue ethics also has theoretical difficulties, chief of which is defining character traits in ways that do justice to the diverse cultural ideals present in a heterogeneous population like that of the United States. Everyone will agree that virtuous parents, for example, need to teach their children to distinguish right from wrong, but may they use corporal punishment in the process? Here, consensus will break down. Another limitation of the approach is that virtue ethics has little to say about what precisely is owed to, or what ought to be done for, children whose primary caregivers have already failed them.

Care ethics, a variant of virtue ethics, is utterly antithetical to the Kantian emphasis on general principles and the development of rational agency. Deriving primarily from the work of feminist psychologists and philosophers, this approach takes close personal relationships, such as that between mother and child, as a model for all moral relations. Emphasis is placed on the need for compassion and empathy in the context of relationships to particular others in concrete settings, rather than on allegiance to abstract principles. Parents, for example, often succeed in meeting the needs of their children because they can empathize with them in particular situations; no abstract duty to care for one's children needs to be evoked. The ethic of care counters a philosophical focus on rationality as the defining essence of humanity.

Is care ethics sufficient to meet the needs of all children? For example, should affluent citizens provide funds for intensive professional care of babies born with drug addictions, babies they never will meet? If the answer to such a question is yes, then the notion of duty may provide a more secure basis for persuading people that such contributions are obligatory, since emotional identification with those one does not know is likely to be weak.

If both justice and care are regarded as virtues, then virtue ethics may have the potential to offer moral grounds for the protection and care of all children. Whether such a reconciliation of alternative approaches is possible remains an open question. If it is not possible, then philosophical ethics offers a number of lenses through which to view the status of children. As in the case of actual lenses, however, there may be no single lens that fits all purposes.

francis schrag (1995)

bibliography revised

SEE ALSO: Abuse, Interpersonal: Child Abuse; Adoption;Feminism; Family and Family Medicine; Human Rights; Infanticide; Infants, Public Policy and Legal Issues; Justice; Natural Law; Pediatrics, Adolescents; Research Policy: Subjects; and other Children subentries

BIBLIOGRAPHY

Aiken, William, and LaFollette, Hugh, eds. 1980. Whose Child?Children's Rights, Parental Authority, and State Power. Totowa, NJ: Littlefield, Adams.

Farson, Richard E. 1974. Birthrights. New York: Macmillan.

Freeden, Michael. 1991. Rights. Minneapolis: University of Minnesota Press.

Golding, Martin P. 1968. "Towards a Theory of Human Rights." Monist 52(4): 521–549.

Houlgate, Laurence D. 1980. The Child and the State: A Normative Theory of Juvenile Rights. Baltimore: Johns Hopkins University Press.

Kruschwitz, Robert B., and Roberts, Robert C., eds. 1987. TheVirtues: Contemporary Essays on Moral Character. Belmont, CA: Wadsworth.

Noddings, Nel. 1984. Caring: A Feminine Approach to Ethics andMoral Education. Berkeley: University of California Press.

O'Neill, Onora. 1989. "Children's Rights and Children's Lives." In her Constructions of Reason: Explorations of Kant's Practical Philosophy, pp. 187–205. Cambridge, Eng.: Cambridge University Press.

O'Neill, Onora, and Ruddick, William, eds. 1979. HavingChildren: Philosophical and Legal Reflections on Parenthood. New York: Oxford University Press.

United Nations. General Assembly. 1960. Declaration of theRights of the Child: Adopted by the General Assembly of the United Nations, New York, November 20, 1959. London:H.M.S.O.

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