1. What are the different theoretical perspectives that have emerged to explain children’s entitlements to ‘rights’?

2. What is meant by Will/Choice/Liberty theories?

3. What is meant by Interest/Welfare theories?

The mosquito device

Source BBC News: 12 February 2008

Read more: Jones & Welch, 2010: Rethinking Children’s Rights

All people have human

rights and there is a

close connection

between human rights,

needs, and autonomy.

“The reality is much more complex and is bound up with the values that underpin the organization of societies and the power relationships within them”.

(Jones & Welch, 2010:31)

power

relationships

Does everyone in society always exercise

their autonomy and power responsibly?

[First Glance] Key Questions

1. Rights are protected choices2. Only those capable of exercising

choices can be right-holders3. Children are incapable of

exercising choice4. Children are not right-holders5. Adults have duties to protect the

important interests of children6. Rights and duties are related7. Children are right-holders

• In one camp is the will or choice theory (Hart 1973; Sumner 1987; Steiner 1994)

• The will theory fits rights actively to do things (to speak, to associate with others)

• In the opposing camp is the welfare or interest theory (MacCormick1982; Raz 1984; Kramer 1998).

• The interest theory fits rights passively to enjoy or not to suffer things (to receive health care, not to be tortured).

Positive

RightsWhere there is a duty on the state or others to provide something that is necessary for the individual (usually associated with welfare rights)

Negative

Rights

Where there is a duty not to interfere with what the individual wants to do (usually associated with

Will/Choice/Liberty theory

• Rights are the protected exercise of choice.

• For example, for children to have the right to education is for them to have the option of enforcing the duty of some other person to provide them with an education.

• Or to discharge them from the responsibility of doing so….

Pure will/autonomy-based theories cannot explain the universality

of rights…

I’m glad you asked…

04 Children are not right-holders?

“From will theories, in the case of children, the term ‘right’ is not appropriate, since, given their condition as minors, they cannot claim these ‘rights’ legally”. (Ochaita and Espinosa, 2002:325).

Therefore, could it be said that children do not have rights in the ‘purest’ sense of the word?

If a person is to be maker or

author of his own life then he must have the mental abilities to form

intentions of a

sufficiently complexkind, and plan their execution.

These include…

• Minimum rationality;• The ability to comprehend the

means required to realize his goals;

• The mental faculties necessary to plan actions, etc.

Hence, for a person to enjoy an autonomous life s/he must actually use these faculties to choose what life to have. There must in other words be adequate options available for him to choose from. Finally, his choice must be free from coercion and manipulation by others, he must be independent.

(Source: Raz, 1998, 373).

Ignatieff (2003) suggests that the strong criticism of the ‘will’ approaches from non-Western cultures is that they are based on ‘individualism’ which undermines communities and societies.

(Source: Jones & Welch, 2010:33)

What are your ideas so far?

Interest (Welfare) theory

• The second theory sees a right as the protection of an interest of sufficient importance to impose on others certain duties.

• For example, for children to have a right to education is for children to have an interest in being educated which is so important that others are under an enforceable duty to provide them with an education.

• NB: It is natural to think that each theory is more appropriate for certain kinds of rights.

Is the ‘right to education’ a right of choice or a welfare right?

The Best Interest Principle (BIP)

The UNCRC 1989 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).

“a” “the”

“primary” “paramount”

“consideration” “determinant”

[These words were not used, why?]

BIP continued

Article 12.1 of the Convention asserts that, ‘States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child’ (UNCRC 1989).

• BIP is, in the first instance, a maximising maxim. It requires that the best shall be done for a child and not simply that good or enough must be done. One must act ‘so as to promote maximally the good’ of the child (Buchanan and Brock 1989, 10).

What are your ideas so far?

(Source:

Jones &

Welch,

2010:38)

(Source:

Jones &

Welch,

2010:38)

(Source:

Jones &

Welch,

2010:38)

Can this tension be resolved?

• 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 2002).

• 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 2002).

Conclusions

1. Rights are protected choices2. Only those capable of exercising

choices can be right-holders3. Children are incapable of

exercising choice4. Children are not right-holders5. Adults have duties to protect the

important interests of children6. Rights and duties are related7. Children are right-holders