Abstract
Moral rights are often characterized as having a special relationship to agency. But the link between agency and rights is often thought to pose an obstacle to the attribution of rights to children. Since children are not mature agents, they cannot be proper bearers of rights or at least of rights grounded in agency. This paper provides a way around this obstacle. Drawing on a form of constructivism, I argue that some rights can be attributed to children in virtue of their status as juvenile agents. I offer a characterization of the agency of children and to indicate how it provides a justificatory basis for distinctive rights of children.
“No political theory is adequate unless it is applicable to children as well as to men and women.”
Bertrand Russell
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Notes
- 1.
Since the strategy I follow does not rely upon a highly structured procedure for the identification of moral principles, its status as a type of constructivism might be questioned by those who view constructivism as requiring precisely defined and perhaps even formal procedures. I am less concerned with the propriety of the label than with the general idea of moral reasoning as closely bound to a determination of the prerequisites and prerogatives of agency.
- 2.
Consider the familiar example about the relation between sentience and moral judgements. The fact that a being can feel pain seems morally salient. It gives a person a reason to judge pain as bad and provides a moral reason to avoid causing pain to sentient beings.
- 3.
I place less emphasis on testing principles via some variety of Kantian universalization test. But I do accept that sound moral principles and claims must be universalizable in the sense that they must be able to be endorsed by all reasonable persons.
- 4.
O’Neill rejects this approach on the grounds that we have no reliable way of determining “which accommodation of various welfare (or welfare and liberty) rights would be maximal” (1988: 455). I think O’Neill is misled here by a mistaken assumption that a constructivist account of rights must attempt to identify a set of co-possible rights that is, in some difficult to specify sense, maximal (or perhaps ‘most basic’). Talk of maximization is tempting but misguided. We should instead see the construction of rights as a matter of first, identifying the important prerequisites and prerogatives of agency and second, determining how, with attention to the gravity of different dimensions of agency, the protection and support of the agency of all persons can be harmonized such that the agency of all of is equally sustained. The construction process is complex, interpretative and qualitative, not simple and quantitative.
- 5.
O’Neill seems to have two concerns about universal welfare rights. The first, and the one I focus on here, is a putative conceptual point linking the content of welfare rights to existing institutional agencies who can be identified as having violated a right should they fail to act in the ways specified by the right. The idea seems to be that there cannot be rights violations without clearly specifiable rights violators. The second concern that I do not take up is a speculation about the way in which a “premature rhetoric of rights can inflate expectations while masking a lack of claimable entitlements” (O’Neill: 133). I accept that persons engaged in political activity may abuse the language of rights and represent political demands as rights claims when there are, in fact, no entitlements. This phenomenon may fuel hostility to rights discourse in some contexts. However, where genuine moral rights are at stake, it is entirely appropriate for those whose rights are not recognized by institutions to believe that they have been unjustly denied that to which they are entitled.
- 6.
I set aside sophisticated varieties of consequentialism that treat rights as devices that we must usually rely upon in order to maximize goodness. In such theories, rights are not morally fundamental but are useful, perhaps even indispensible, devices for the maximization of overall human welfare.
- 7.
- 8.
The proposal I develop about the relation between children’s moral rights and juvenile agency need not be hostile to recognition that some rights of children (or adults) serve to protect fundamental interests that are independent of agency. My main objective is to motivate the idea that an important range of children’s rights can be articulated and defended by appeal to distinctive and normatively valuable features of their agency. One could express this point by insisting that children have a fundamental interest in enjoying goods accessible via juvenile agency and this might suggest that my approach is committed to an interest model of rights. For my part, I do not think a lot hangs on this matter. As I say above, I think the contrast between interest and choice models of rights can be overblown. For my purposes, the important point is the suggestion that children display a distinct form of agency that merits recognition and protection. One, though perhaps not the only, function of rights is to mark certain claims of persons as meriting special recognition and protection.
- 9.
For the purposes of this discussion, I do not take up the interesting question of what rights can be attributed to adults who, due to cognitive impairments, never develop or lose rational capacities requisite to mature agency. Such adults can be ‘childlike’ in some respects and thus their rights to make authoritative decisions about their own lives may be constrained in important ways. However, it also seems likely the rights of such adults will not be simply identical to children with similar rational capacities.
- 10.
Robert Noggle argues that children are ‘special agents’ because they do not display the same degree of “temporal extension” as adults (Noggle 2002: 102). This helps to explain why children’s ends often involve very short-range plans and why there can be a degree of instability in the preferences of children.
- 11.
- 12.
Roberto Benigni’s film Life is Beautiful arguably provides a poignant illustration of the importance protecting the innocence of childhood. In the film, the main character shields his son from the full horrors of a Nazi concentration camp by inventing an elaborate ruse according to which the prisoners are involved in an elaborate game. Whereas it would be objectionably deceitful to trick adults in this way, I think Benigni’s character can be interpreted as struggling valiantly to respect the rights of his son.
- 13.
Even though she expresses doubts about attributing this kind of right to children, O’Neill seems sympathetic to the basic point I am making here. “Cold, distant or fanatical parents and teachers, even if they violate no rights, deny children the “genial play of life”: they can wither children’s lives” (O’Neill 1988: 450–51). On my view, of course, such parents and teachers do violate children’s right to play.
- 14.
To complicate matters even further, it is possible that there will be some variation between cultures or national communities about how children’s rights are specified. To some degree, differences in cultural conventions may have a bearing on how the content of some rights, such as the right to play, is interpreted.
- 15.
I would like to thank Johannes Drerup, Gunter Graf and Gottfried Schweiger for helpful feedback on this essay. I also acknowledge Baroness O’Neill of Bengarve for the reply she gave to an earlier version of this essay at a conference in her honour at the Royal Society in London.
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Macleod, C.M. (2016). Constructing Children’s Rights. In: Drerup, J., Graf, G., Schickhardt, C., Schweiger, G. (eds) Justice, Education and the Politics of Childhood. Philosophy and Politics - Critical Explorations, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-27389-1_1
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