ARE RIGHTS WHAT CHILDREN NEED?
By Gabriel Moran
In any discussion of the care of children and the rights of
children, the first phrase is in tension with the second. The apparent parallel of the two phrases is
misleading. In the first phrase, care is
what adults exercise toward children; in the second phrase, rights are what
children claim in opposition to adults.
Most people would probably say that both rights and care are
important. I wish to agree with
that. But because the rhetoric of
children’s rights is often endorsed without much examination, the care of
children is obscured. It seems to be
assumed that the care of children can be included within the rights of
children. Possibly that can happen but
it will not happen unless some ambiguities are highlighted not only about the
nature of rights but about the meaning of “children.”Those two ambiguities are
related to a third that I will examine: reasonableness.
THE CHILD
In
discussions of children’s rights, it is amazing how little attention is given
to a confusion inherent in the English word “child.” The United Nations document, The Convention on
the Rights of the Child, simply
stipulates that “child” refers to anyone under the age of eighteen. While that stipulation clears up some
confusion, it clashes with most ordinary uses of the word “child.” If I were to address 16 or l7 year-olds as children,
they would be insulted - with good reason.
Educational writing for the past century, has regularly interchanged the
terms student and child. The relation of
teacher-student has been conflated with the relation of adult-child. The “adult education” movement claimed that
“adults” and “children” learn in opposite ways. Not surprisingly, “adult education”
literature has usually been banal with reference to adults and insulting in
reference to children. It presumes that
children are to be treated as passive receptacles of knowledge.
The adult education literature is not, of course, the source
of the problem. It is merely an
expression of the misleading division that began in the l8th century when the
idea of childhood was invented. There
were children before the eighteenth century but not a separate state of
childhood. The invention of childhood
was ostensibly for the protection and benefit of children and this development
did result in improvements. Almost
certainly, the abuse of children began to decline in the eighteenth century. There
were also drawbacks in the isolation of children into a separate state. The problem became especially severe with
Freud who posited a world of childhood totally unknown to adults. Freud was mainly referring to infants and his
ideas of infant sexuality shocked the general public. The idea of an unknown world of childhood was
extended by Piaget to twelve-years-old.
Piaget called himself a genetic epistemologist, but his main concern was
with logical and mathematical thinking in children from birth to age
twelve. Piaget’s studies came to
dominate the study of children. But for
social, political, or economic distinctions that might describe younger human
beings, Piaget is of almost no help.
With the simplistic opposition of adult versus child, there
was no need to develop useful and accurate age distinctions. We do have words such as youth, teenager,
adolescent, juvenile, but they carry a special, often disparaging,
connotation. Does one ordinarily hear
“juvenile” outside of references to “juvenile delinquents” or “the juvenile
justice system”? The absence of words
for important realities is a symptom of confusion and oppression. How can we discuss the care of children
and/or the rights of children if the reference to the child may be to someone
who is either 3 years old or l7 years old?
The only current remedy is to state the age in question for each context
and each problem. Rousseau, in Emile,
does just that at the beginning of each of the five books describing the
teaching of Emile and Sophie. Rousseau
is regularly attacked for his view of the “the child,” but Rousseau does not
talk about the child; he makes precise distinctions about the age of his
student from birth to twenty-one-years old.
In contrast, when John Dewey discusses the “child and the curriculum”
one can only guess that he is referring to someone between ages 6 and 16.
RIGHTS OF
CHILDREN
The ambiguity in the meaning of “rights” overlaps and goes
beyond the ambiguity of “child.” One
cannot say whether a child should have a particular right unless we know which
is the right and what is the age of the child.
Some rights obviously presuppose a degree of mental and physical development. If the question is whether a child should
have a right to drive an automobile, it is essential to know whether we are
talking about a 4, 10 or 17 year old. In
the case of many rights, the child would learn by doing and the present
restrictions are too extreme. I think
that the age for the right to vote should be lowered; the change from 21 to 18
did not succeed in encouraging political participation. I think age 12 or 13 would make sense; one
could even argue for 6 or 7 years-old but I do not think one could go lower
than that. The principle is that one
learns politics by participating in politics.
Although we are certain that adults and children are
different, we draw the line between them in more than one place. If we are confused and inconsistent about
when childhood ends and adulthood begins, that may not be a bad thing. “Childhood” is a series of stages which can
vary depending on whether the context is physical, economic, political, social
or ethical. A 7 year-old should have a
right to privacy and free speech; a 13 year-old should not have a right to buy
alcohol or to own a gun.
The fundamental ambiguity concerning “rights” is whether it
carries a positive or a negative meaning.
That is, rights originated with a negative meaning – as a negation of
intrusion by the government. That is
still where its greatest strength lies.
The idea of right was not intended to carry the whole weight of law, let
alone morality. A person’s right entails
a duty on the part of another. In the
Western part of the world, the main duty is thought to be
non-interference. Still, one can argue
(as the East and South often have) that a right to life or a right to liberty
implies that conditions are supportive of life or liberty. A right to life for an infant requires the
infant to have (a right to) food, health care, a home. Non-intervention is not enough. But what
needs emphasis more than the right of the child is the duty of the parents and
the state. It would be a good policy
never to use the term “right” in referring to children without using the
correlative term “duty” or “obligation.”
Here is the United Nations’s problem with its 50 years of
declarations, covenants and conventions.
Who has the obligation to see that rights are enforced? The members of the UN are not persons but
nation-states. And rights began as
protections of persons against nation-states.
So who is the UN speaking to? One
logical step would be to develop a trans-national authority to which an
individual could appeal for redress from his or her own nation. This is the basis of the European Court of
Human Rights which can receive petitions from individuals. Many European
nations, including
In l948, the UN distinguished between “children’s rights”
and “the child as object of society’s concerns.” The Convention on the Rights of the Child
moved away from this distinction.
Children, as the most powerless group of people, are rhetorically useful
for supporters of human rights. James
Grant of UNICEF advocated “using children as a cutting edge of human rights
generally which would contribute to international peace and security, to
democracy and development.” Perhaps his
choice of phrase was just unfortunate but one must be skeptical of a project
“using children as a cutting edge.”
The
In the UN Convention on the Rights of the Child, the idea of
child care is folded into the 42 articles that spell out the rights of the
child. Here is where the ambiguity
concerning its use of “child” becomes central.
If one is speaking of a l7 year old, care might take a second place to
freedom of expression (article 13), freedom of conscience (article 14) or
freedom of association (article 15). But
if one is referring to a 4 year-old, then the right to be cared for is the
primary need. Furthermore, is “right” the appropriate term for speaking about
care of the child. At the least, one has
to emphasize that the issue is not what the child should be allowed to do but
what adults are required to do. And then
one would have to draw a series of lines to differentiate the kind of care
required for infants, young boys and girls, pre-puberty youngsters, younger
teenagers, older teenagers, etc. Both
the UN and other discussions of children’s rights often seem oblivious of this
tension.
AGE OF
REASON
The third ambiguity concerns what it means to have reached
the age of reason. Reasonableness is the
quality most often invoked for the exercise of rights. Does a child have the power of reason? An answer requires some age
distinctions. In the Middle Ages a child
was judged to have reached the age of reason (and thus was capable of sin) by
about age six. John Locke, at the end of
the l7th century, assumes that same age for the age of reason. Locke therefore advocates giving reasons to
six-year- olds for what they are told to do.
Rousseau, in the 18th century, ridiculed Locke on this
point, saying it was a waste of time and worse to reason with a six-year-old. However, later in the same work, while
Rousseau argues that twelve is the age of reason, he has to acknowledge
reasoning power by children between six and twelve. Rousseau denies that he is contradicting
himself. He says from six- years-old
onward children “reason very well in everything they know that relates to their
immediate and palpable interest. But one is mistaken about their knowledge,
ascribing to them knowledge they do not have.”
Rousseau was quite accurate here; his distinction is more
relevant than Piaget’s discoveries of the child’s power to reason. A child of six can indeed reason but lacks
experience, knowledge and long-range foresight. The six-year-old, despite
having reason, lacks what is necessary for functioning in a fully reasonable
manner. Thus, the six-year-old should be
given reasons for obeying an adult’s command but should not have the right to
choose his or her parents, residence or education. The 6 year-old lacks the
necessary knowledge and experience.
The cry for equality of rights is misleading in this
discussion. Not only are children not
equal to adults, six-year-old children are not equal to thirteen-year-old
children. Adults ought to respect the
emerging private life of a six-year-old, but the provision of care for the
child of that age imposes limits.
Restriction on equality is necessary not to impose a burden but to
provide protection.
In the other direction, as children get older, courts have
been lax about protecting their legitimate rights. There has been flagrant disregard of the
rights of older children, especially in a school context. In l977, the Supreme Court allowed the brutal
paddling of a child in a
The Court’s decision in June, l995, allowing the random drug
testing of high school athletes, was particularly outrageous. Justice Anthony Scalia wrote in the majority
opinion that “the schools have custodial and tutelary responsibility for
children.” He went on to make the
bizarre argument that “legitimate privacy expectations are even less with
regard to student athletes,” because they dress and shower in locker
rooms. Justice O’Connor, in the
dissenting view, called the result of the decision a “mass, suspicionless
search regime.”
The courts in the