2015 - Maturing Children's Rights Theory

THE INTERNATIONAL
JOURNAL OF
CHILDREN’S RIGHTS
international journal of children’s rights
23 (2015) 283-331
brill.com/chil
Maturing Children’s Rights Theory
From Children, With Children, Of Children
Matías Cordero Arce
Independent Researcher
[email protected]
Abstract
Children’s rights research is an under-theorised field of studies. The Convention on the
Rights of the Child (crc) has gained the status of source and (“theoretical”) framework
of research, policy and practice, thus making most research efforts a matter of discussing implementation. This paper wishes to advance a critical, that is, politically committed theoretical agenda for children’s rights research that is not bounded by the
institutional framework (i.e. crc) but intends to freely think it. Programmatically, it
delves on the following issues, that call for further research, of the like that might start
filling in this theoretical void: the position of children’s rights research within the
wider interdisciplinary field of childhood studies, children’s citizenship (instead of
“participation”), the normative legitimacy of children’s rights/laws, children’s law as a
branch of antidiscrimination law, and the necessary independence of children’s laws
from children’s sciences.
Keywords
children’s rights theory – critical legal theory – children’s citizenship – antidiscrimination law – children’s empowerment
* A first version of this paper was presented at the meeting of the Mediterranean Network of
Children’s Rights, held at the University of Barcelona in September 2013. A more elaborated
version was then presented at the Symposium of the Research Network on the Sociology of
Childhood, of the European Sociological Association, held at the University of Modena, in
May 2014. The author wishes to thank the participants of those meeting and symposium for
the discussions and valuable comments on the ideas presented then. Also, he wishes to thank
the following scholars for their comments on the draft: Maggy Barrère, Manuel Calvo, David
Oswell, Teresa Picontó and Nigel Thomas.
© koninklijke brill nv, leiden, ���5 | doi 10.1163/15718182-02302006
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Introduction: Children’s Legal Studies as an Under-Theorised Field
of Studies
Children’s rights have recently been described as an under-theorised field of
studies (Reynaert et al., 2009; Dixon and Nussbaum, 2012 and Quennerstedt,
2013). Indeed, the majority of the research spectrum reveals an implicit consensus on the fact that children have rights and, most importantly for our purpose
here, even a theory of their rights, namely the crc, source and framework of
children’s rights. Of course, the crc is not properly a theoretical framework, but
the relevant issue for the diagnosis of under-theorisation is that it is treated as
such (see Quennerstedt, 2013). Thus, for example, a recent congress held in
Madrid entitled “Children’s Rights Research: from Theory to Practice”, but which
could have been perfectly relabelled as “Children’s Rights Research: from the
crc to Practice”, because the papers presented consisted basically of a discussion of the implementation of the crc, and there were various calls by influential children’s rights’ scholars to make research stem from the crc’s principles.
Certainly, there is also a lot of research on, say, children’s participation rights,
but this is research undertaken within the narrow framework of Article 12, crc
(a critique of Article 12 in Cordero Arce, 2012), that is, research that must be
understood as a species of the genus that we could term “implementation
research” (and under implementation I include standard-setting and monitoring; see Reynaert et al., 2009: 526). As put by Reynaert et al. (2009, 2012) and
Quennerstedt (2013), it is fair to say that children’s rights research has been
ensnared by consensus, that is, by the consensus that children’s rights are
none other than those enshrined in the crc, that these rights are unproblematic (meaning that they only need to be implemented, not further through, even
less critiqued), and that the crc should instruct research, policy and practice.1
Of course, this does not mean that there is no proper theory inside children’s rights research. On a small, but relevant corner of the research spectrum, we can find, if not the only, surely the major theoretical issue being
currently discussed, namely, the reach of (adult) paternalism over children –
usually sweetened with well-sounding adjectives – (see Cordero Arce, in press),
discussion that stems from, and inevitably leads to, the question whether children really have rights (see Purdy, 1994; Brennan and Noggle, 1997; Brighouse,
2002; Griffin, 2002; Ferguson, 2013; Ross, 2013 and Tobin, 2013). This discussion,
that has been going on for decades now, revolves around that other one of the
will theory versus the interest theory (see Freeman, 1992; Eekelaar, 1992 and
1 The diagnosis of insufficient theorisation has also reached childhood studies; see Adrian
James, 2010: 486.
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Brennan, 2002). First brought to the fore of children’s rights research by Neil
MacCormick (1976), this debate confronts the view that rights are based on the
capacity of its holders with the view that they are based on their interests. As
concluded by MacCormick, given that children would lack capacity, but definitely have rights, rights, including children’s, must be based on their holders’
interests. Now, as is clear from a brief survey of the debate (see, for example,
Ross, 2013), this was, since its beginning, a debate played on grounds alien to
children, who only served as objects of a debate in which they, as children, were
not the main concern. The concern was the ultimate justification of rights: in a
person’s will, or in a person’s interests. This explains the problems of transplanting the debate to children’s rights theory and its resulting futility concerning children, inasmuch as it turns out to be a debate between the assertion that
“children have no rights” (because they have no will, so cannot assert rights),
and the assertion that “children have no rights” (because their supposed rights –
which protect their interests – are, by definition, administered by adults which
means, for example, that children can end up having the oxymoronic “right”
to an outcome they do not want; see Ferguson, 2013: 193 and Cordero Arce,
in press).
Apart from this futility regarding children, tarrying in this discussion seems
like an obscene entanglement because, which is the position of the questioner
that allows for questioning such a thing as whether children have or do not
have rights? And what does it say of this question that the questioners belong
to a social group whose members do not question their own capacity as rightholders, but the capacity of another group? (i.e. adults vis-à-vis children). Of
course, the position is a hierarchical one, based on an adultist assumption, that
is, on the belief that adults’ knowledge, discourse and reason are better than
children’s, for the mere fact of being the knowledge, discourse and reason of
adults. And the question itself, independently of how it is answered, further
strengthens that hierarchy and adultism (see sections 2.4 and 2.5, below).2
Probably the only relevance of this debate, for the sake of the rights of children,
emerges as an undesired outcome of itself, once it is understood that the whole
debate stems from the negative answer to the question about children’s agency;
that is, once it is understood that it is a debate that, by definition, leaves children out of it. In other words, the relevance of this debate is to show its hidden
and inevitable political dimension.
2 ‘One of the major characteristics of adultism is the ignorant attribution of ignorance to children’, (Kennedy, 2006: 162). I will delve into adultism in the following sections, but see also:
Zelizer, 1994; Boyden, 1997; Mayall, 2000; Lee, 2001; Castañeda, 2002; Archard, 2004; Cannella
and Viruru, 2004; Jenks, 2005; Wyness, 2005; Rodríguez, 2007; Burman, 2008 and Taylor, 2011.
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This state of affairs presents us with a (false) dilemma. On the one hand, we
have a discriminatory theoretical debate on children having or not having
rights (see section 2.4, below). This debate has not moved forward in decades
(see Ferguson, 2013; Tobin, 2013 and Ross, 2013), which of course explains why
it is impossible to theorise from it: if children’s rights theorists still do not agree
on the fact that children have any rights (much less on why they have them, if
they do), it is impossible for them to move forward and start building a proper
theory of those (still) dubious rights. That is why some scholars directly prefer
to avoid regulating children’s legal situation from a rights’ perspective, at
least inasmuch ‘that perspective is grounded in any of the available theories of
­children’s rights’ (Ferguson, 2013: 182; see also O’Neill, 1992; Simon, 2000 and
Griffin, 2008). So, we are told, as it is impossible to advance children’s rights, let
us put them on hold for a while. On the other hand, the majority of researchers
sidestep this issue and consider that there is theory and justification enough in
the crc, that needs only be implemented, that is, preached (Quennerstedt,
2013: 239). Thus, for example, the words of Geraldine Van Bueren when commenting with approval that there were no philosophical debates on the nature
of the moral rights of children during the discussions of the different State
delegates that contributed to the drafting of the crc: the ailings of the world’s
children could not afford such a luxury (Van Bueren, 1995: 6).
So, it seems that we either cannot move, or have to move blindly in an
uncritical flight forward. This paper tries to engage with, and widen, the space
in the middle of these two perspectives. It steps ahead of the debate on children having or not having rights, because children themselves have shown that
they can not only agentically administer their rights but even define and conquer them (Cordero Arce, 2012, and in press), and away from the conception of
the crc as the pretended source and framework of theory. Lest our only purpose as researchers is to advocate for the (narrow, disciplinary, top-down)
rights of the crc (see section 2.2, below, and Cordero Arce, 2012, and in press),
it is a disservice to children’s rights research, and thus to children’s rights and
children themselves, to take the crc for granted (the “sacred-text approach”, in
Karl Hanson’s [2013] critical words).3 Instead of thinking inside the i­ nstitutional
3 With this I am not implying that research on implementation should be abandoned; it is
necessary and actually, calls itself for further theorisation. A recent attempt to theorise implementation can be found in Bonvin and Stoecklin, 2014, who call for the encounter of children’s rights with the capability approach:
the capability approach is a way to operationalize formal freedoms (entitlements), and
hence children’s rights. Therefore, the capability approach is used to inspire us on dimensions to look at when it comes to implementing formal rights as the ones contained in the
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framework, thus remaining bounded by the crc, in this paper we just think
the institutional framework, freely think the crc. And given its hegemonic
standing, we stay close to it, because it serves as a mirror in which to acknowledge the reproduction of the hegemonic construction of childhood4 and, most
importantly, as a huge and fertile possibility to rework and/or reconstruct
childhood(s) (see Prout and James, 1997: 8). Thus, this paper assumes a critical,
committed standpoint. This approach does not mean to
make legal categories trace and trap the way things are, [nor] to make
rules that fit reality. It is critical of reality. Its task is not to formulate
abstract standards that will produce determinate outcomes in particular
cases. Its project is more substantive, more jurisprudential than formulaic … It proposes to expose that which [children] have had little choice
but to be confined to, in order to change it.
MacKinnon, 1991: 87, my brackets
In other words, human rights are understood here as ‘claims and aspirations
that allow the status quo to be contested in favor of the oppressed’ (Dembour,
2010: 3), i.e. children (see section 2.4, below). This critical, emancipatory commitment (Cordero Arce, 2012), does not amount to “politicizing” research,
since research has always been politicized. On the contrary, by making it
explicit, I attempt ‘to understand and act ethically in light of such politicization’ (Steinberg and Kincheloe, 2004: 4).
So, schematically, or better said, programmatically, in what follows I highlight some issues that call for further research, of the like that might start filling in the theoretical void I have diagnosed. These are: i) the position of
children’s rights research within the wider interdisciplinary field of childhood
studies (the need to take interdisciplinarity seriously); ii) the necessity to
move from children’s participation to children’s citizenship; iii) the normative
uncrc. It attracts our attention to the fact that there is a gap between children’s formal
liberties (rights) and their real freedom (capability) (2014: 1).
Now, it must be underscored that a proper theory of implementation cannot restrict itself to
discuss the implementation of one legal body, be it the crc or whichever.
4 The sociology of childhood has conclusively shown that childhood is a social construction.
By hegemonic childhood (also minority or Western childhood) I refer to the construction of
childhood that has achieved a prevailing standing in the social, legal, psychological and educational discourses about children, first in the West, and then, through globalisation, more
and more worldwide. This hegemonic childhood conceives children as becomings, not-yets,
citizens-in-the-making, developing, socialising, belonging to the world of play (not of work),
immature, needy, vulnerable, dependent, incompetent, irrational … (see section 2.4, below).
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(il)legitimacy of the (international) system of children’s rights; iv) the consideration of children’s rights as a branch of antidiscrimination law; and v) the
(uneasy) relationship between children’s rights and children’s “sciences”.
I do not assert that these are all the relevant issues that need be engaged
with and theorised, but I do think that all of them are fundamental, that none
has received the proper theoretical treatment, and that they require to be
treated together because all of them tend to engage with a theory that understands children’s rights from children, with children and of children. Also, I say
programmatically because I do not make a thorough development of each
issue; rather, I make a theoretical outline that, hopefully, might hint to future,
deeper, developments. Lastly; some scholars have proposed to speak of “children’s rights studies” (Hanson, 2014); I think it is more proper to speak of
­children’s legal studies, because it helps us part with the understanding that
merges children’s rights research with research bounded by the crc, because it is
reminiscent of other critical, committed approaches such as feminist legal studies
and critical legal studies5 and because it helps to start delimiting still blurry disciplinary boundaries, as we will see in the discussion of the first issue. Let us go
directly to it, necessary to begin with because of a methodological priority.
2
(Some) Issues which Must be Addressed
The Position of Children’s Rights Research within the Wider
Interdisciplinary Field of Childhood Studies: Taking
Interdisciplinarity Seriously
Freeman (2012: 29) thinks that there has been little dialogue between the sociology of childhood and children’s rights scholarship. I would be more specific,
and say that there has been little interdisciplinary dialogue, little theoretical
dialogue. Let us see: a search in the main journals in the field of the sociology of childhood or, more widely framed, childhood studies, shows that the
­concept “children’s rights” appears in 210 articles of Childhood (founded 1993),
85 articles of Children’s Geographies (founded 2003) and 329 articles of Children
& Society (founded 1987).6 So, childhood studies’ scholars speak almost omnipresently of children’s rights, or, put another way, have incorporated children’s
rights’ talk to their dialogues and discourses. However, the issue is to discern
what they are talking about when they so do. Is it more than a projection of the
2.1
5 I say “reminiscent” because I do not necessarily share all the viewpoints of these approaches,
especially in the case of the critical legal studies movement.
6 As of 23 October 2014.
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crc, as I warned in the previous section? Is there any theoretical depth to the
concept, other than a conception that either reproduces the crc or too often
sounds like a loose moral ideal? And of course, the answer is that given the
severely under-theorised status of children’s rights research itself, it is very difficult for those who are meant to “drink” from it to use a minimally developed
concept of children’s rights.
What I want here is to warn of the dangers of uncritical interdisciplinarity, for
childhood studies in general, and for children’s rights research in particular.
I think it is irrefutable that, as put by Buck-Morss (2009: 22), ‘disciplinary boundaries allow counterevidence to belong to someone else’s story’. This speaks of
the necessary openness of the disciplines that encompass the field of childhood
studies, of the “scientific” need of porosity and interfecundation, of the political
need of endangering ‘venerable narratives’ and even ‘the entrenched academic
disciplines that (re)produce them’ (Buck-Morss, 2009: 23). And, as we are well
aware, in the wide field of childhood studies there are ages-old narratives that
need to be endangered (see section 2.5, below). But, if interdisciplinarity implies
the interdependence of a wide array of disciplines, it also implies a d­ isciplined
way of putting those different disciplines into play.7
As Prout (2005: 146) says, interdisciplinarity does not mean abandoning disciplinarity, but acknowledging the coming and going between disciplines,
and he calls for childhood studies to be the ‘meeting place of disciplines’.
Precisely because of disciplinarian reasons (the risk of pretending some kind
of “­meta-disciplinarity”), Cook (2010) prefers to speak of multi-disciplinarity,
rather than of interdisciplinarity. I have spoken of childhood studies, the sociology of childhood and children’s rights scholarship, and said that childhood
studies is a wider frame than the sociology of childhood. I think it is also wider
than children’s rights research. Using Adrian James’ (2010: 492) helpful metaphor, I think children’s rights research, or to be more precise and start shedding
weight, children’s legal studies, should be understood as ‘a thread of the fabric
of childhood studies’, alongside the sociology of childhood, the history of
childhood, childhood geographies, the anthropology of childhood, child psychology, the philosophy of childhood, etc. With this, children’s legal studies
also assumes the vocation of helping to understand ‘what “childhood studies”
is, so that the childhood studies project can integrate [it] into the fabric of
childhood studies as a whole’, that is, “drink” from it.
7 This also means that the kind(s) of inter-disciplinary relationships have to be analysed,
because of the inevitable political/normative dimension of the relevant disciplines (developmental psychology, sociology of childhood, children’s legal studies, etc) (see section 2.5,
below).
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This use of the word ‘fabric’ is carefully considered, since I want to use the
analogy of weaving in order to suggest a way in which the different
threads that separately contribute to what we refer to as childhood studies can be woven together and integrated into a single piece of cloth, the
basic dimensions of which are bounded by the recognition of children as
set-aside-from-adults but which incorporate, and therefore enable us to
focus on, analyse and understand, both the commonalities and the diversities around which childhoods proliferate.
Ad. James, 2010: 492
But, and this is the relevant question for us here, what is the nature of the
thread of children’s legal studies? Allison James (2010: 216) says that interdisciplinarity always stems from an anchor discipline: ‘the discipline a researcher
hails from should … provide the tools and concepts with which to study children and childhood’. So, what are the tools and concepts offered by children’s
legal studies to the wider study of children and childhoods? We know, for
example, that the sociology of childhood has granted us with rich useful concepts such as children’s agency,8 childhood as a social construction, or childhood as a variable of social analysis (see Prout and James, 1997: 8). And child
psychology granted us with the extremely contentious, but important, concept
of development (see section 2.5 below). However, as is followed from the argument in the introduction, it seems that concerning children’s legal studies
those tools and concepts are still in the making.
Conversely, and trying to start digging into children’s legal studies, we must
also enquire as to what are the tools and concepts for the study of children’s
rights themselves. I just said that throughout childhood studies’ publications
we can find various references to children’s rights, that is, that children’s rights
as a concept knows of no disciplinary borders. But, if we are committed to put
some disciplinary order into childhood studies, should we not also ask whether
there are some disciplines better fit to study children’s rights as children’s
rights? I think it is fairly uncontroversial to say that the tools and concepts to
study, for example, children’s minds, are, at least (though not exclusively),
those developed by psychology – including critical and cross-cultural psychology, psychiatry –including critical and cross-cultural psychiatry, neuroscience,
etc; that the tools and concepts to study children’s and childhood’s place in
8 When children’s rights’ researchers speak of participation they generally do so starting from
this concept of agency, but under the paternalistic constraint of article 12, crc (on participation, see section 2.2, below).
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society are at least (though not exclusively), those developed by sociology,
geography, anthropology, etc; that the tools and concepts to study children’s
learning are at least (though not exclusively), those developed by the diverse
pedagogical theories, anthropology of learning, etc., and so on and so forth.
But, there seems to be less agreement on the fact that the tools and concepts
to study children’s rights should be at least (though again not exclusively),
those developed by legal theory, jurisprudence, sociology of law, political
­science, etc.
It seems, thus, that the crc has colonised childhood studies (the fabric),
while at the same time evading or even emptying children’s legal scholarship
(the thread). As source and framework of “theory”, the crc has flooded the
other threads of the fabric of childhood studies, while drying out the thread to
which it most properly belongs, namely children’s legal studies. Put another
way, the crc’s pervasiveness has bleached the thread of children’s legal studies, and with it has decoloured the whole fabric of childhood studies. Somehow,
then, children’s rights are now everywhere, being really nowhere.
The treatment of the issues that follow might help start (re)rooting children’s legal studies, and refilling, from a critical and committed standpoint, the
theoretical void produced by the crc, as well as being an attempt to provide
reasoned positions, from within children’s legal studies as one of its threads, to
the big fabric of childhood studies.
The Necessity to Move from Children’s Participation
to Children’s Citizenship
I said above that there has been a lot of research on participation. This research,
as can easily be seen by revising the literature, is generally undertaken within
the framework of Article 12, crc, which allegedly is the international legal recognition of children’s right to participation. There is an explicit agreement
amongst researchers, practitioners and policy-makers on the fact that children’s participation is enshrined in Article 12. But this emphasis on participation raises at least two questions. First, what is its meaning and reach when
used in research, policy and practice? And second, why the emphasis on
“participation”?
As for the first question, and just summarising some of the various critiques
of the concept as per Article 12 (see Cordero Arce, 2012, and in press), there is
participation when, previous adult assurance that children are capable of
forming their own views, they are allowed by those adults to express those
views freely in matters that, according to those adults, affect them, the views
thus expressed being given the weight that adults deem they should have,
according to the adult diagnosis of those children’s development and maturity
2.2
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(Art. 12, crc).9 So, it is crystal clear that children do not have the last word as
to their participation, which is modeled and modulated by adults; but, neither
did they participate in the drafting of their (participation) rights, the crc
being an exclusive product of adult representatives of States’ parties. Besides
this, unicef (swc–2003 [2002]) and the Committee on the Rights of the Child
(gc 12), have very qualified concepts of children’s participation (see Skelton,
2007); children’s participation in international conferences concerning their
rights is limited – at best – and tokenistic – at worst (White and Choudhury,
2007; Ennew, 2008 and Saadi, 2012); and the final text of the Optional Protocol
for a Communications Procedure – meant, amongst other things, to strengthen
children’s participation – is very restricted and restricting (Egan, 2013). So,
participation results in a spurious, paternalistic and oxymoronic protected
participation.
We must jump then to the second question, and ask why the emphasis on
such children’s participation – Art. 12, crc being termed the linchpin of the
crc by noted scholars (Freeman, 1998: 438) and the Committee on the Rights
of the Child (gc 12: par. 86) – if it is such a flawed concept? What is the value,
the good, that the crc wants to enshrine with such an emphasis? In a clear
departure from mainstream interpretation, Percy-Smith (2014) conceives participation as ‘the democratic process of decision making’, as well as ‘the social
practice of active citizenship’ Milne (2013: 38), going further, criticises that
child participation tends … to be a distraction and to move the issue away
from citizenship …. The contemporary pro-child participation view tends
to suggest separatism. Accordingly, children generally make decisions
addressing the issues of children and are allowed to have a degree of
opinion but no real political influence. There is certainly no real decision
making capability in the world generally where adults are best placed to
decide for them. In other words, children are allowed only partial citizenship through a veneer of playing a role in their part of civil society.
So, should we not stop talking of children’s participation and start talking
about their citizenship? I think so, and a brief overlook at some examples
might help us to take this step.
To begin with, the protected “participation” of Article 12 has no room to fit
in the struggles, from and for citizenship, of majority world working children’s
associations (nats), who demand the right to work and rights at work and
9 For critical appraisals of Article 12, see also: Boyden, 1997; Freeman, 1998; Archard, 2004;
Milne, 2005; Liebel, 2006; Smith, 2007 and Alderson, 2008.
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who, organised at a local, national and global level, have conquered a wide
array of social and legal changes in favour of them, their families and their
communities (Cordero Arce, 2012, and in press). “Participation”, as well, cannot
express all the richness of the struggle of Chilean secondary students who, as
put by Monckeberg (2008: 9–10),
with a strength and determination not seen in other social actors during
the past 20 years, waved flags against a system they deemed unfair and
exposed the inequalities that afflict Chilean society despite the macroeconomic achievements and existing spaces of freedom …; this massive
group of secondary students managed to raise awareness and show the
unrest accumulated during the years of transition to democracy.
“Participation” is also too narrow to fit in the struggles of the students of
Oakland, usa, organised as Youth Power, who through their struggles ‘fundamentally changed their school landscapes’, amongst other achievements, ‘radically altering their school’s depoliticised and divided multicultural celebrations
of diversity’, and too narrow to fit in the struggles of the students of Portland,
usa, organised in Students Rise Up, who orchestrated city-wide student sit-ins
and walkouts, lobbied adult voters and put pressure on the mayor in order to
achieve a better funding of public (state) schools, while taking ‘the lead in
organizing a community-wide free school to fill the educational gap that would
be left by early school closures’ (Gordon, 2010: 199). “Participation” is also
flawed to conceptualise the struggle of the children of Loxicha, Mexico, who
participated hand in hand with their families and community in the struggle
for the release of their unjustly (so they claimed) arrested friends and relatives.
In 1996, police and military units swept through the region and arrested
150 men, accusing them of belonging to the Popular Revolutionary Army
(Ejército Popular Revolucionario). So, in 1997 the women and children of
Loxicha set up a protest camp in Oaxaca City’s Zócalo (central plaza) where
they remained for four and half years. During that time, ‘the children … played
a key role in their community’s struggle—going on marches, and participating
in sit-ins and hunger strikes’ (Smith, 2007: 33). But they would also play, and
work, and go to school. As Smith (2007: 51) says, ‘the ways in which the Loxicha
children take part in their community’s political lucha perhaps are discounted
because they are unpalatable to the pundits of “nice” participation, in particular those working within the boundaries of ngo agendas’. “Participation” does
not work to explain the struggles of Greek students in the heyday of austerity
rule, which meant that as recently as 2011 there were more than 700 public
(state) schools occupied by children who were protesting against the drastic
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cuts in funding (Pechtelidis, 2014). Lastly, “participation” is also useless to
explain the active and lucid resistance of children that would rather go to jail
than school in Toronto, Canada. As Nelsen (1985: 148) puts it:
Jailing truants is obvious evidence that the authorities … consider skipping
school to be a serious activity. It is serious because these skippers are refusing to permit the school authorities, on behalf of the larger culture, to define
and standardize them. But it’s even more than this: for the most important
part of this negation is their refusal to subordinate self – to depersonalize
their unique subjectivity in favour of the traditional rules, regulations and
standardized operating procedures of the larger socio-­economic system.
They are not willing to cooperate in their own ­bureaucratization – a
­processing which is, as I have argued, at the very heart of school socialization. In brief, unlike the thoroughly schooled individuals, these deviant
“holdouts” refuse to cooperate with school authorities in taking an increasingly heavier hand, at each successive school level, in processing their own
“adjustment” to prevailing socio-economic arrangements.
The children of these examples are certainly not “participating” (as in Art. 12,
crc). No, instead, these children have used their freedom of expression, seeking and imparting information and ideas (Art. 13, crc); their freedom of
thought and conscience (Art. 14, crc); their right to freely associate and assemble (Art. 15, crc); and their right to resist arbitrary interferences with their
privacy (in Toronto) and their families (in Loxicha) (Art. 16, crc).10
10
It must be noted that there need be no formal struggle in order for a child to transcend the
narrow frame of “participation”. The history, sociology, ethnography and anthropology of
childhood are full of examples of children that are already protagonists of their life, that
is, who have a leading, not secondary role in their own lives, and concerning whom it is
absurd to say that they merely “have a say” in “the matters that affect them” (amongst
many, Punch, 2003; Liebel, 2004; Katz, 2004; Corsaro, 2005; Cunningham, 2005; Hewlett
and Lamb, 2005; Bolin, 2006; Lancy, 2008; Levine and New, 2008 and Konner, 2010). These
children’s realities cannot be interpreted through the minimising lens of controlled participation. Even more, in some cases to talk of these children’s citizenship is probably also
equivocal, because the word itself implies an urban, bureaucratic setting which is alien to
many of those children’s realities. But it is necessary to keep them in mind when discussing citizenship, to retain perspective and relativise the crc’s claims to universality and,
more importantly, to understand that children’s secondary role in our societies is not a
fact of nature, but the result of a social adultist structure (see section 2.4, below, and
Cordero Arce, in press).
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Actually, if the concern is with children’s voices, as expressed by many scholars that carry out research on participation, then the real loudspeaker of children’s voices lies not in Article 12, crc (which rather than a loudspeaker is an
opaque filter), but in the freedoms of expression, thought, conscience, association and assembly enshrined in Articles 13, 14 and 15, crc. Now, I am not saying
that those articles talk about citizenship, even less that they develop a concept
of children’s citizenship, but I do think we can build or borrow from them in
order further to conceptualise children’s citizenship. It is surprising, and very
symptomatic of an adultist reading of the crc, that even though both Articles 12
and 13 talk about the right or freedom of expression, we adults have decided
that the place of children’s participation lies in the Article that puts more qualifications and restrictions on children’s expression, and thus participation,
because, somehow, it is assumed that a child’s expression has to be validated by
an adult in order to be “proper” participation (see also Milne, 2013: 179).
Thus, it must be emphasised that the references to the crc and Articles 13,
14, 15 and 16 are not made as if resorting to some sort of source and/or framework of theory, but to a tool that children can use and abuse to the advancement of their rights (adults abuse it the other way round all the time11). In
other words, even if we are not theoretically bounded by the crc, given its
hegemonic standing we have to explore its emancipatory possibilities, which
necessarily means exposing its contradictions. As Roche (1999) put it in
another context, children – and us with them – have to begin where they are
at, and that means making spaces of their own in spaces not of their making.
And whether we like it or not, the legal space that children are currently inhabiting is the crc. So, the challenge is, in Gramsci’s (1971: 321–377) terms, to
11
Thus Langlaude (2010: 1) argues explicitly that Article 12 ‘does a better job at encapsulating the child’s right’ to freedom of expression than Article 13; concluding that ‘the child’s
right is very much based on the positive obligations of the state, in contrast with the traditional international law on freedom of expression’. That is, she reconducts freedom of
expression to a protected and controlled freedom of expression. She also argues that the
main interest behind this right is children’s development (‘developing through freedom
of expression’; p. 4). Only later would the child engage ‘in activities such as protests,
marches or writing to newspapers. Thus, children have an interest in participating in society and imparting their views, which complements their interest in developing through
freedom of expression’ (p. 4). And Thorgeirsdóttir (2006: 19) comments that ‘freedom of
expression, if properly protected, will enable the child to develop its mind and its self in
society with others and grow into a citizen participating in public life’: as usual, developmentalism acting as the frame through which every right should be read, no matter how
much that right gets twisted by such a reading (see section 2.5, below, and Cordero Arce,
2012, and in press).
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c­ onstruct “good sense” (children’s emancipation) from common sense (the
crc), that is, as put by Hunt (1990: 313–314), to rework or refashion ‘the elements which are constitutive of the prevailing hegemony…, to “supplement”
that which is already in place; to add or extend to [the] existing discourse’, in
order to be able then to ‘open up its silences’ and introduce elements which
transcend the hegemonic discourse. The challenge is, thus, to embrace the
political nature of children’s legal theory.
An example might help to further explain this: let us imagine a mother who
gives a ball to her son as a birthday present because she wants him to play
football. Upon receiving the ball, it happens that the son chooses to use it as a
canvas on which to paint a smiling face. Seeing this, the mother might well
say: “No, son! The ball is meant for kicking, not for painting!”, complaint to
which the son could legitimately reply: “Mom, you gave me the ball as a present; now let me do as I wish with it”. The crc was a gift of adults to children,
and of course, as a gift, has deep inconsistencies (see section 2.3, below, and
Cordero Arce, 2012, and in press), but the point I want to make here is that it
is a gift that must be conceived to be, now, in children’s hands, at their disposal. Rights are political predicates, that is, ‘open predicates: they open up a
dispute about what they exactly entail and whom they concern in which
cases’ (Rancière, 2004: 303). So rights are positions to be occupied, and
­children’s rights are positions to be occupied by children (see also Hanson and
Nieuwenhuys, 2013: 10, 20). It is from this understanding that we, as researchers, should construct.
Now, if our concern is children’s citizenship, it must be acknowledged
that we cannot talk seriously about it without talking, also, about normative
legitimacy.
The Normative (Il)legitimacy of the (International) System
of Children’s Rights
Political theorists use various concepts to acknowledge the legitimacy of rights
inside democratic societies. Habermas (1996: 120) says that ‘the idea of selflegislation by citizens … requires that those subject to law as its addressees can
at the same time understand themselves as authors of law’. Young (2000: 6)
says that the normative legitimacy of a democratic decision, amongst which
we need to include the norm-creating decisions, depends on the ‘degree to
which those affected by it have been included in the decision-making processes and have had the opportunity to influence the outcomes’. Rawls (2001: 41,
my italics) states that ‘political power is legitimate only when it is exercised in
accordance with a constitution (written or unwritten) the essentials of which
all citizens … can endorse’. And he terms this the liberal principle of l­ egitimacy.
2.3
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To sum up, Preuss (1998: 326) says that ‘the democratic character of the law’
implies ‘that no political rule is legitimate if it is not grounded on the consent
of those subject to it’.
In the previous section I said that, as a gift of adults to children, the crc has
deep inconsistencies, and now we can develop on that. The main inconsistency of the crc is that it lacks legitimacy vis-à-vis children. First, in its
­origin, because it was drafted for children, without children: there was no self-­
legislation (Habermas), nor inclusion (Young), nor endorsement (Rawls) of
children in the coming to be of the crc. As Cockburn (2013: 372) ­acknowledges
– including, but speaking in wider terms than the crc, ‘the current social contract has completely written out children from it’, which puts a huge question
mark on the crc’s normative legitimacy (see Nolan, 2010: 782). Secondly, in its
implementation, because it is implemented, in the best case, just “listening” to
some children (i.e. Art. 12, crc; see section 2.2 above).
Of course, it is generally argued that it could not have been otherwise. As
recalled by Adam Lopatka, Chairman of the un Working Group on the crc,
children were deemed weaker than the rest, and thus in need of special rights
(Lopatka, 1992: 48–49). And the crc conceives children not only as weaklings, but also as ignorant, private, needy, dependent, developing, innocent,
incompetent, pre-social, becomings, and “not-yets” (Cordero Arce, 2012:
372–381, and in press), which explains why Lopatka thinks it is obvious that
children did not participate in the drafting of the convention (ohchr, 2007:
vol. 1: xl), that is, thinks it is obvious that the crc must lack normative
legitimacy.
In other words, children did not participate because they could not participate, because, it is argued, they are still not competent enough to do so; they
are citizens-in-the-making, in short, becomings. That is why adults had to
decide and legislate for them; that is why paternalism. I argued above that the
debate on paternalism is probably the main theoretical debate concerning
children’s rights, and criticised it because of its futility for the sake of the rights
of children. But this does not mean that we can avoid it altogether. What it
does mean is that we cannot keep engaging in it under the terms usually proposed by the debaters, that is, from the perspectives of the will theory versus
interest theory, of children having or not having rights, and of children’s
(in)competence and (ir)rationality (for a critique of paternalism under these
terms, which stresses the massive evidence for children’s competence, see
Cordero Arce, in press).
So, to begin, and trying to sidestep the hegemonic perspective and debate,
paternalism regarding children per se is flawed because it is theoretically
indefensible to support the extension of paternalism to a whole class or
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group – and not on a case-by-case basis- unless that group is pathologically
defined as a group (see section 2.4, below).12
Secondly, the unanimous justification of paternalism is children’s alleged
unknowingness: due to their supposed lack of reason and experience, children
would not be the best judges of what is best for them, so adults, who are
assumed to know better, must decide for children (see Rawls, 1971: 248–249;
Scarre, 1980: 122–123; Campbell, 1994: 260 and Alemany, 2005: 288–292). In the
case of norm-creation then, it is assumed that adults know better, thus, are
enfranchised, and children know worse, and thus are disenfranchised. But this
argument takes for granted that the justification of enfranchisement is knowledge (as it was once property, literacy or manhood), and this is not the case.
Estlund (2008: 3, my italics) explains it as follows:
The idea of democracy is not naturally plausible. The stakes of political
decisions are high, and the ancient analogy is apt: in life-and-death medical decisions, what could be stupider than holding a vote? Most people
do not know enough to make a wise medical decision, but a few people
do, and it seems clear that the decisions should be made by those who
know best? While it makes good sense for us to defer to someone who we
have reason to think is a medical expert, the doctor’s right to make decisions and perform procedures on us comes mainly from our consent, not
from the doctor’s expertise … It is important to see that authority does
not simply follow from expertise. Even if we grant that there are better
and worse political decisions …, and that some people know better what
should be done than others…, it simply does not follow from their expertise that they have authority over us, or that they ought to. This expert/
boss fallacy is tempting, but someone’s knowledge about what should be
done leaves completely open what should be done about who is to rule. You
might be correct, but what makes you boss?
So, as Estlund argues, we cannot search for democracy’s foundation in epistocracy, that is, in the rule of the “wise”. Now, as Leece (2009: 133) points out,
12
Developmentalism, with its emphasis on concepts such as “critical periods” and “developmental milestones”, is the main driving force behind the pathologisation of children’s
lives, that is, behind the understanding of children as ontologically ambiguous beings (i.e.
becomings) thus in need of permanent control, test, and over-protection (see section 2.5,
below, and Henriques et al., 1984; Walkerdine, 1993; Morss, 1996 and Burman, 2008).
Of course, paternalism owes deeply to developmentalism (see Cordero Arce, in press).
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Estlund deliberately chooses to omit children from the purview of his
analysis. However, his arguments bear directly upon the question of children’s voting rights, because the case for excluding children from the
franchise normally rests explicitly upon the premise that political authority should be knowledge-based, and it is this premise that Estlund attacks.
And, goes on Lecce (2009: 135),
on Estlund’s view, all adults are to have the same voting rights despite
their being differentially endowed with political wisdom because such
wisdom is not the basis of justified authority. Fine, but why should we
deprive children of the vote on the basis of their relative epistemic deficits when similar deficits are not grounds for excluding adults?
It must be underscored that citizenship cannot be reduced to enfranchisement (although in practice it is generally so reduced); nor can citizens’ participation in norm-creation be reduced to its institutional dimension, i.e. the
mandate of citizens on representatives (though in practice it is also generally
so reduced). But enfranchisement and the institutional dimension of citizen’s
participation in norm-creation are decisive to a strong concept of citizenship.
If, as Lecce says, one of the core ideas of democracy ‘is the collective authorization of laws by the people who are subject to them’, then ‘democracy is
inseparable from voting’, and voting rights are one of the marks of democratic
citizenship (Lecce, 2009: 134). And in order to vote in a democracy, no qualification is required, be it property, literacy, manhood, or knowledge. As
Rancière (2004: 304) puts it, democracy is ‘the power of those who have no
qualification for exercising power’. Paternalism, on the contrary, institutes
epistocracy (the rule of the qualified, that is, the alleged “wise” or “competent”), which is just another form of aristocracy: the government of a privileged class or group composed, in our case, by none other than adults (see
section 2.4, below).
Epistocracy as adultocracy is further revealed in that, as commentators say,
the usual benchmark of competence that paternalist standards require of children would, in general, not be met by a large number of the adult population
(Jones and Basser Marks, 1994: 280; Lee, 2001: 9, 46 and Archard, 2004: 93–94). As
Freeman (2007: 12) says, ‘most of the adult population cannot think rationally or
think in such a way as to maximise benefit or minimise loss or reach a reasoned
decision. If rights were to hinge on competence … few would have them’.
Thirdly, a revision of the literature on paternalism towards children shows
that the underlying motive for deciding on behalf of children is not their
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alleged lack of reason. Actually, “reason” works much more as an excuse than as
a reason. This is expressly acknowledged by children’s rights theorists:
It is conceivable that a child might competently take a decision which is
contrary to his or her self-interest … in terms of physical or mental wellbeing and integrity. It was suggested there that dynamic self-determinism
[that is, abiding by the child’s decision] should be disapplied where this
interest was threatened. One can imagine that a legal system might
decline to recognize decisions of competent children in the same
­circumstances ….
Eekelaar, 1994: 57, my brackets
As communicated more crudely by a foster carer to Thomas and O’Kane (1998:
151): ‘so really it’s, they can make decisions as long as they don’t disagree with
the adult views and perceptions of what’s going on; because if they do, then
obviously they don’t understand the situation’. In the same vein, the 2013 Safer
Internet Work Programme of the eu, whose axes are ‘protecting youth online –
to prevent children from being exposed unnecessarily to harmful behaviours,
contacts or content’ (para. 1.1.ii), says that its aims are ‘to bring stakeholders
together to find ways of promoting a safer online environment and protecting
children from content that … adults responsible for children consider harmful’
(para. 3).13 So, as these examples show, something or someone is reasonable, or
unreasonable (i.e. harmful), when the adult in charge says so. We realise that
‘even when a child knows (i.e. is competent), and the adults know that the child
knows, there are certain actions that when done by a child collide with the
moral conscience of those very adults’ (Cordero Arce, 2012: 378); that adults
object not really for being “unreasonable”, but for being a child’s. More than on
children’s incompetence or irrationality then, paternalism rests on the craving
of adults to protect, that is, control children. “The child” is thus protected
because of either a future subject/citizen (a becoming, not-yet), or a present
object/treasure (the ultimate, and most vulnerable, source of adult meaning)
(see Cordero Arce, 2012: 377–378, and in press). So, of course adults give ­reasons
for the exclusion of children from decision making but they are bad reasons or,
better said, they are reasons that work for adults (present and future), in the
same degree as they fail for children.
As we see, there are major cracks in the argument for paternalism in general, and for paternalistically granting rights to children in particular (and as
I said, I have not delved on the overwhelming evidence for agency, which is
13
EU Commission, C (2013) 1954, 11 April 2013.
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such that it has moved a leading sociologist of childhood to call researchers to
a halt in their efforts to show, yet again, that children are competent agents: we
all know that already! [Adrian James, 2010: 486]).
Freeman (2007: 8) acknowledges that ‘it is hardly surprising that none of the
rights we have were freely bestowed: they all had to be fought for’, and yet, does
not engage with the possibility of children being a part of that struggle. The
unavoidable question is what it makes of the rights of the crc that children
did not fight for them, that the crc was ‘freely bestowed’. Even if we pretended
those granted rights to be substantially emancipatory, or empowering, the
issue is that the mere idea of “giving” rights to children (of rights flowing downhill, as pretended by Federle, 1994) is an oxymoronic one. First, because when
adults give rights it is them who decide the frame within which those rights will
be exercised, thus muting children’s voices in the design of their life-frames;
and second, because “power” is not something one has but a position to do
something or to influence others (Lukes, 2005), so it cannot possibly be given.
If the supposed “giving” of rights is not accompanied by the outlawing of the
position from where those rights are given, i.e. by a radical contestation of
adultism, which means beginning to level the social field, then children’s rights
will keep on being given (by adults) in a top-down manner, and “enjoyed” (by
children) in a bottom-up fashion: contra Federle (1994), rights will keep on
striking downhill (see Cordero Arce, in press).
The struggle for a right is always a struggle for legal change, from a previous social change, legal change being the endpoint of that social change. You
fight because you think law should acknowledge what you, those engaged in
the struggle with you, and even a fair amount of society, already believe in,
already are (Bloch, 2011 [1961]; Ferrajoli, 2000; Douzinas, 2000; Rajagopal, 2003;
Stammers, 2009 and Hanson and Nieuwenhuys, 2013: 4). What I want to
emphasise is that law and society are not separable realities, that legal solutions are always taken inside a social context; (legal) texts read within a (social)
context. So when a right is just “given” – top-down – things change in order to
remain basically the same: in an adultist social context the outcomes will generally be adultist legal solutions (see section 2.4, below). Thus, the importance
of the struggle for law: legal change thus conquered also reflects the change of
the social context within which legal solutions are reached.
The overcoming of the paternalistic granting of rights to children, who currently just receive their supposed rights wrapped and packed by adults, can be
theoretically found in children’s right to define their rights, and not to be
defined (Cordero Arce, 2012, and in press). Briefly explained, this right stems
from the fact that children are free and equal with the rest of humanity, as
acknowledged by the udhr (Art. 1). Children have thus the right to have that
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freedom and equality respected, i.e. the right to resist everything that denies
that original freedom and equality. This right to resist de-humanisation was at
the heart of the US Declaration of Independence of 1776, and of the French
Declaration of the Rights of Man and of the Citizen of 1789 (Art. 2), and though
currently unacknowledged by human rights charts, is the condition of possibility of each and every human rights chart, and has illuminated all the struggles for rights that have broadened, deepened and ultimately enriched the
human rights discourse.
To uphold the right to resist de-humanisation implies understanding human
rights as ‘normative marks of revolutionary change’ (i.e. towards reclaiming
freedom and equality), rather than as ‘defense mechanisms against the possibility of resistance and revolution’ (Douzinas, 2010: 93); it implies assuming the
need to invigorate the emancipatory dimension of the human rights discourse,
buried under the regulatory dimension (Santos, 2009), or dimension of control
(i.e. crc). In the case of children, it means acknowledging their right to resist
a set of rights (the hegemonic discourse of children’s rights as crystalised in the
crc) conceived to discipline them (towards “proper” adulthood), infantilise
them (literally, silence their voices) and minimise them (as sadly acknowledged
by the former Chairperson of the Committee on the Rights of the Child,
Yanghee Lee: “mini-rights” for “mini-humans”14).
If children are human beings, free and equal with the rest of humanity, and
have thus the right of revolutionary resistance, as of course they are and they
have, then they have the right to define their rights (Santos, 2009), that is, to be
autonomous (literally, to be governed by their own laws). But the right to define
requires a conceptual space in which to elaborate and deploy those definitions, and a material space, in which to live them, it requires, thus, a right not
to be defined (not to be “exactly described”, delimited, fixated), in other words,
a right to opacity, because ‘it is impossible to reduce anyone, no matter who, to
a truth he would have not generated on his own’ (Glissant, 1997: 194). Thus
Burman (2008) talks about children’s right to silence; Ennew (2002) of the right
of children that live on the streets not to be labelled; Strandell (2000) of children’s right to not have their play instrumentalised to serve the educational
purposes of adults; Ehrensaft (2010: 56) of the need for children with gender
nonconformity to have a neutral space in which to develop their own gender
identity, a space of ‘“not knowing” … in an area, children’s gender status, which
14
As expressed during the meeting of the working group to draft the communications
procedure under the uncrc, on 16 February 2011, in http://www.crin.org/resources/­
infodetail.asp?id=24180, accessed 25 February 2011.
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has conventionally had “knowing” as its bedrock’; and we may add children’s
right not to be defined by science (see section 2.5, below), nor by adults bereft
of definitions (Cordero Arce, in press).
Of course, this line of argument leaves the crc in a very bad position. But,
before throwing out the baby with the bathwater, which, as Milne (2005: 41)
warns, would probably be the case if we outright rejected the crc, the question should be, following and deepening what we suggested in the previous
section, how to make “good sense” of the crc’s legitimacy deficit, that is, how
to engage with the child who wants to paint the “freely bestowed” ball, instead
of kicking it; how to make a space for children’s definitions inside the crc,
which is not a space of their making; how to, in sum, occupy the crc. So, what
do we make of children’s right to define their rights and not to be defined
within the narrow, even suffocating framework of the crc? Can the crc
uphold this right to define? How can it welcome an apparently open resistance
against itself? From where in the crc can we make such “good sense”? The
issue is how to renovate and make critical this already existing and uncritical
(and uncriticised) legal institution (Gramsci, 1971: 331), that is, how to prioritise
those features which are new, effecting, with this, the exhaustion of the dominant elements (Hunt, 1990: 314). For this, and following Alan Hunt, I think we
have to heed its Preamble, and, once again, Articles 13, 14, 15, and 16. Says Hunt
(1990: 324):
[T]he general field of political contestation … revolves around a reworking of, that is a re-articulation of, elements already present in popular
discourses: democracy, freedom, equality, liberty (and a few other key
symbols) constitute the whole territory of political discourse. What is
decisive is the way in which concrete political discourses generate and
mobilize re-combinations of these well-tried elements.
I have already commented on Articles 13 to 16, crc, that enshrine children’s
freedom of expression, thought, conscience, association and assembly, as well
as their freedom from arbitrary interferences with their privacy and their families. To them, the Preamble adds the assertion about the ‘inherent dignity
and … equal and inalienable rights of all members of the human Family’, and
that ‘everyone is entitled to all the rights and freedoms set forth in the Universal
Declaration of Human Rights and the International Covenants, without distinction of any kind’. So, as free and equal with the rest of humanity, free to
think, express, associate and assembly, children have the right to define their
rights, that is, to be autonomous (literally, to be governed by their own laws), as
well as the right to the conceptual space in which to elaborate and deploy
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those definitions, and to the material space, in which to live them, i.e. the right
not to be defined, which gives a new dimension to Article 16, that protects children’s freedom from interferences (i.e. from unwarranted definitions).15
Theoretically speaking, the right to define and not to be defined emerges as
children’s non- or pre-institutional reclaiming of normative legitimacy: the
space where children can find the self-legislation, consent and inclusion that
have been institutionally denied to them by the hegemonic discourse crystalised in the crc. But once the crc is rewritten and reread as just proposed,
this non-institutional reclaiming takes a first step towards the institutional
reclaiming as well. It becomes the place where children begin putting some
good sense to the “common sense” represented by the hegemonic discourse; as
we said in the previous section, it is children literally occupying the crc.
I have argued that the overcoming of the paternalistic granting of rights to
children can be theoretically found in children’s right to define. Let me illustrate now how this theory works in practice or, better said, how does practice
legitimate this theory as children’s proper reclaiming of normative legitimacy,
as bottom-up, grounded theory. To do so, I will paraphrase Rancière, writing on
women’s struggle, but adapting his words to the struggle of the organised
movements of working children and youth (nats) for the right to work with
dignity:
Children are making a twofold demonstration. They are demonstrating
that they have been deprived of the rights that they have, thanks to the
udhr. And they are demonstrating, through their public action, that
they have the rights that the crc denies to them, that they can enact
those rights. So they act as subjects of Human Rights … They act as subjects that do not have the rights that they have and have the rights that
they have not.16
15
16
Again, I am not saying that the struggle of children to define their rights stems from the
Preamble, Articles 13, 14, 15 and 16, crc; it stems from their inherent dignity, and equality
with the rest of humanity, from their freedom of expression, thought, conscience, association and assembly, which, however defectively, are recognised by the Preamble and those
articles.
The quote by Rancière (2004: 34) is the following: ‘Women could make a twofold demonstration. They could demonstrate that they were deprived of the rights that they had,
thanks to the Declaration of Rights. And they could demonstrate, through their public
action, that they had the rights that the constitution denied to them, that they could
enact those rights. So they could act as subjects of the Rights of Man in the precise sense
that I have mentioned. They acted as subjects that did not have the rights that they had
and had the rights that they had not’.
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This paraphrase shows another dimension of children’s rights to define and
not to be defined. It is not (only) about re-writing the meaning of existing
Articles (such as Articles 13, 14, 15, etc.), but about bringing to the fore excluded
ones (of course, by acting from and through freedom of expression, thought,
conscience, assembly, etc, as Hunt [1990] said). Thus, even if the udhr
(Art. 23) enshrines everyone’s right to work with dignity, the crc, not explicitly
denying children’s right to work, severely restricts it, and its official interpretation, its whole activity-meaning system, is straightforwardly against any such a
right. However, on the other side, the public action of the nats, their public
discourse and legal conquests, are beginning to show that children already
have that right to work with dignity that the hegemonic discourse of children’s
rights insists in denying them (see Cordero Arce, in press).
Before moving to the next issue, it needs to be pointed out that the normative illegitimacy of the international system of children’s rights is inscribed in
a wider legitimacy crisis of democracies under late capitalism, especially in the
minority world (see Rosanvallon, 2010). As put by Rodríguez Palop (2003: 232):
‘this is a consequence of the inherent contradictions of the prevailing political
model … because, though the welfare State of late capitalism founds its legitimacy on the principle of participation in decision-making (formal democracy), and social welfare (material democracy)’, both participation and welfare
are increasingly belied by reality. As gloomily diagnosed by Sánchez Cuenca
(2014), citizens, especially inside the European Union, seem to be facing a situation of “democratic impotence”, in which no longer can they change the policies, but just the politicians. I make this point just to emphasise that, as usual,
children have to suffer a double illegitimacy: of the “democratic” system vis-àvis them, and of the “democratic” system vis-à-vis everyone. And we could
­perfectly well term this a double discrimination. Actually, the downgrading of
children’s citizenship to mere “participation” (section 2.2, above), and the
silencing of their voices (i.e. infantilisation) in the configuration of their regulated reality, discussed in this section, make it unavoidable to talk about
­antidiscrimination law.
The Consideration of Children’s Rights as a Branch
of Antidiscrimination Law
There have been some shy efforts to understand children as a social category
potentially discriminated against on an age basis. For example, Breen (2006)
devotes a whole book to the issue of age discrimination and children’s rights.
However, she begins her book by stating that the premise that children are
rights-holders implies the recognition that, ‘although rights are accorded to the
child, a lack of capacity may inhibit the child from exercising his or her rights.
2.4
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Accordingly, the notion of paternalism is an inherent part of any discussion
regarding the exercise or practical effect of the accordance of rights to the
child’ (2006: xi, my italics). So, for Breen, rights are “accorded”, i.e. granted, to
children, never fought for, won or conquered by them, which inevitably implies
conceiving children as receivers of adult donors; as I said above, of rights striking downhill. She also thinks it “inherent” to children’s rights discussion to talk
about paternalism, thus reproducing all the problems and inconsistencies of
paternalism that we discussed above.
She then goes on to say that ‘the achievement of equality in rights protection between children and adults will have to recognise the difference between
children and adults where such difference is based on the drawing of valid distinctions between the two groups’, which will make it possible to treat ­children
‘differently’ (Breen, 2006: 12). And when are distinctions valid? That is, when is
differential treatment justifiable, and thus supposedly non-discriminatory?
When ‘it can be established that the limitation is legitimate, proportionate,
and necessary’ (2006: xiii); or when the ‘limits [on children’s rights] are rational and proportionate’ (2006: 41).
The problems with “difference” have been acknowledged by other children’s
rights scholars. Freeman (2012: 31) poses that primary concerns of the children’s
rights movement are to ‘question the relevance of difference, to challenge discrimination’, and to ‘problematise the relationship between age, regarded at the
least as a suspect category, and status’. I think we should stress what Freeman
only suggests, that is, that difference leads to discrimination; that building antidiscrimination theories based on difference is tantamount to reproducing discrimination. Difference implies hierarchy because it is always difference with
respect to those who define and name the difference, difference according to a
norm (Glissant, 1997: 189–194), in this case, adult normality. In this hierarchy,
children are below (waiting for rights to be accorded), and adults above (granting children with rights). So even when differential treatment claims to be
founded on proportionate, legitimate and rational reasons, we have to ask, as
Freeman (2011: 28) points out, what is meant by a good, rational, legitimate,
proportionate, necessary reason. Gender and race, for example, now seem to be
bad reasons in many parts of the world, but this has not been always the case,
nor is it the case everywhere (Freeman, 2011: 28). The case of gender and race
shows that “good reasons” tends to mean the reasons of the powerful. So, the
relevant questions concerning the differential treatment of children are “good
reasons” according to whom? And in which social context? And as we know
from the previous section, in the minority childhood reasons are good when
adults say so, and they are “reasoned” within an adultist social context.
Freeman’s concern needs to be further developed because, as shown by
the example of Breen’s approach – which is just a case of trying to justify
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paternalism, not to overcome it – the theory on age-discrimination against
­children is ‘only in its infancy’ (Liebel, 2012: 97). My contention is that this
development passes through the understanding of children’s rights as a
branch of (proper) antidiscrimination law. And for that we have to begin by
recognising children as an oppressed social group or minority (minority in
terms of power, of being lesser or minor than). Young (1990: 44) says that a
social group ‘is defined not primarily by a set of shared attributes, but by a
sense of identity’, in the case of children, for example, arising from their
belonging to a generation (Mayall, 2002 and Alanen, 2011), or from the awareness of being a collective set aside from adults (Qvortrup, 2008), which
­usually implies below than adults (Sutton-Smith, 1997; Lindquist, 2001;
Thomas, 2004 and Corsaro, 2005).
For Young (1990), a given social group is oppressed if it suffers any of the following “faces of oppression”: violence, exploitation, marginalisation, powerlessness, and/or cultural imperialism. Any of these will suffice for there to be
an oppressed group, and in the case of children, usually more than one shows
up (of course, this is an empirical question, so it will greatly vary across childhoods). The important issue is that oppression, says Young, does not necessarily refer to the result of a tyrant’s actions and intentions. It is, rather, a ‘systemic
phenomena which exclude people from participating in determining their
actions or the conditions of their actions’ (Young, 1990: 31). In this sense, it is
structural, and not
the result of a few people’s choices or policies. Its causes are embedded in
unquestioned norms, habits, and symbols, in the assumptions underlying institutional rules and the collective consequences of following those
rules … In this extended structural sense oppression refers to the vast and
deep injustices some groups suffer as a consequence of often unconscious assumptions and reactions of well-meaning people in ordinary
interactions, media and cultural stereotypes, and structural features of
bureaucratic hierarchies and market mechanisms—in short, the normal
processes of everyday life.
Young, 1990: 41
So, where can we find these faces of oppression that, as Young says, are not
necessarily the work of a ruthless tyrant, but might well be the result of the
added actions of loving parents, well-intended politicians, committed schoolteachers, etc.?
• Violence: ‘Many States continue to sanction corporal punishment in the
name of discipline against [children] …. an action that may in fact amount to
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criminal assault if perpetrated against an adult’.17 For example, in the uk it is
legally allowed for parents to use violence towards children if it is a case of
“reasonable punishment” and doesn’t leave a mark.18 However, we would reject
with outrage the justification of an adult being “punished” with a smack,
because we would think it is outright unreasonable to do such a thing. If it
becomes reasonable to do something by default unreasonable, it can only be
because the addressee of the punishment is, him or herself, unreasonable
(deprived of reason) and, consequently, must be dealt with in his or her own
“language” (or lack of it). In other words, you do not tame a horse by speaking
to it. Actually, violence against women – a pervasive reality worldwide – can
still be found to be justified under similar claims to lack of rationality (Harway
and O’Neill, 1999). The bottom line under this perspective, for adultism and
­sexism, is that children and women only learn the hard way because they are,
still “irrational”.19
• Marginalisation: Minority or hegemonic childhood has placed children at
the lower margins of society. Children have to be socialized, that is, raised to
the social, because they are deemed more of nature than of culture, just
citizens-in-the-making (see Art. 29.1.d, crc); they have to develop or, better
said, be developed (subjected to disciplinary developmentalism20) towards
17
18
19
20
In https://www.crin.org/en/home/what-we-do/crinmail/crinmail-1404, accessed 11 November
2014.
Children Act 2004, in http://www.legislation.gov.uk/ukpga/2004/31/contents, accessed 26
November 2014.
The cedaw Committee has recognised that ‘gender-based violence’, that is, ‘violence that is
directed against a woman because she is a woman or that affects women disproportionately’,
‘is a form of discrimination’ (un Doc. A/47/38 1992). And this form of violence is discrimination not only because it conspires against the individual enjoyment of rights on a par with
men, but because it breaks the wider rule of intergroup equality (Barrère, 2008: 63). Now,
even if the Committee on the Rights of the Child is critical of the legal systems that allow any
kind of violence towards children, specifically mentioning the English common law (crc/
C/gc/8 2006, para. 31; and see crc/C/gc/13 2011, para. 24), it does not recognise that there is
any such thing as age discrimination, that is, discrimination against a child because he or she
is a child. So, it cannot consider that violence against children is undertaken by the mere fact
of them being children. Thus, in its Concluding Observations on the fourth periodic Report
by Norway, the Committee says that it just ‘takes note of the ongoing debate as to whether
age discrimination of children should be included in the law and whether ­children should
be given the right to file complaints if they are discriminated against due to their age’ but
then goes on to express its ‘concern’ at information of children being discriminated on the
basis of their ethnicity, disabilities, etc. (crc/C/nor/CO/4 2010, para.19, my italics).
Morss (1996: 51) says that developmentalism ‘consists of the production of, and reliance
on, explanatory statements concerning general natural regulation of changes in the
human life-span’ (see section 2.5, below).
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proper adulthood, which is their goal as human becomings (see Art. 6, crc);
children are infantilised, that is, their voices are literally muted, or at least
filtered (Art. 12, crc; and see section 2.2 above). In sum, the children of the
minority childhood head (or are headed) towards adulthood aside from,
beneath, following and as per adults.21
• Powerlessness: This is closely entwined with children’s marginalisation.
There is a structural adult power over children (which does not prevent the
emergence of micro-powers of contestation, as described by Sutton-Smith,
1997: 111–126; Lindquist, 2001; Thomas, 2004 and Corsaro, 1995: 42–43).
Children (in the hegemonic childhood) can be said to be, symbolically and
materially, in adult hands. As Caselli (2010: 243) puts it:
it is still culturally accepted (and not only in everyday language) to
refer in passing to what children are and what we should expect
them to do, while – fortunately – more than one eyebrow would be
raised if we were to state confidently what women are or what they
ought to do.
Also, as I said above, paternalism implies the pathological definition of children as a group, that is, the definition of one group (children) as in need of
another group (adults), and not vice versa, which is, apart from its symbolic
violence, the enshrinement of powerlessness. The same happens when
adults assume to be entitled to discuss whether children should be granted
rights or not (which, put another way, is to discuss in which margin of the
legal sphere should children be placed).
• Exploitation: As I said above, currently children’s work is severely constrained by the hegemonic discourse of children’s rights, whose agenda
leads to its complete banning. Children suffer the prohibition to create
value for the sheer fact of being children, and no matter how much or how
“competently” they raise their voices to the contrary (Woodhead, 1999;
Leonard, 2004; Liebel, 2004, 2007 and Nieuwenhuys, 2011). Abolitionism
amounts, thus, to ‘speaking the language of discipline and exclusion’
(Invernizzi, 2008: 139). This explicit denial of children’s economic agency
leads to the implicit and inevitable denial of their political agency. It doesn’t
matter what they say about their work, it does not matter if they express
21
A perfect example of children’s marginalisation is the Mosquito device. Very popular in
the United Kingdom, it is a device that emits a high-pitch, unpleasant sound, inaudible
for adults due to the hearing loss that comes with age, but perceptible for children, which
makes it a perfect weapon against children in the “wrong” places, i.e. the non plus ultra of
biopolitical technology and children’s marginalisation (see Lee and Motzkau, 2011).
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their will to work and their outrage towards abolitionism: children have
nothing to say, nothing to participate in concerning their right to work
(unless, of course, when they speak against such a right [Saadi, 2012]). Thus,
children are conceived, by definition, as economic burdens, as unproductive dependents. However, and as a schizoid counterweight, children have
been burdened with a superlative emotional value … for adults! Children, or
better said, “the child” (that abstraction that can nowhere be found) has
become ‘the final alternative to loneliness that can be built up against the
vanishing possibilities of love’ (Beck, 1992: 118), the ‘integrative symbol for
society’ (Pupavac, 2001: 97), adults’ most valuable treasure (see also Zelizer,
1994 and Meyer, 2007). Children thus suffer the adult exploitation of their
forced unproductiveness (treasures must be protected, controlled, guarded),
while being banned from leaving that unproductive status.
• Cultural imperialism: As it has been thoroughly argued (Stephens, 1995;
Cannella and Viruru, 2004; Kennedy, 2006; Burman, 2008 and Nieuwenhuys,
2013), the colonial project of the nineteenth and early twentieth centuries and
the developmental ­project whose primary “objects” are children are parts of one
and the same project: African native population – and women – were infantilised and thus deemed in need to follow the authority of the already grown up
and civilized, i.e. the male adult European conquerors. But cultural imperialism
unfolds not only in intra-childhood oppression. It is already commonplace to
talk about the social construction of childhoods, that is, of the existence of
diverse childhoods throughout history and the world. From the Eurocentric
midst of that diversity, and boosted by globalisation (Boyden, 1997), the hegemonic (Western, or minority) childhood exerts an overwhelming influence and
­pressure amongst the rest of childhoods, which can be very properly termed a
case of cultural imperialism, that is, of inter-­childhood oppression (Pupavac,
2001; Ennew, 2002; Nsamenang, 2002; Cunningham, 2005; Pandya, 2005 and
Cussiánovich, 2006).
Some sociologists of childhood have resisted the consideration of children as a
minority group. Thus, for James et al. (1998: 86) such an analysis amounts to
unproblematically constituting children as separate and different from adults.
But, it must be stressed, it is not the researcher who constitutes the children
into such a minority, but the hegemonic childhood itself. It is children who,
defined as dependents and subordinates, have been placed in the position of
having to be led to adulthood because left to themselves could go astray
(Rancière, 2010: 168); it is children who have been placed in a position to be
defined, not to define; locked in times and spaces for them (not necessarily of
them), such as the school and home, which ‘are organized around the power of
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the adults to determine the character of children’s experience’ (Mayall,
2002: 20). It is children who suffer the allocation of an ambiguous and minimised ontology, which results in the paternalistic granting of rights. And it is
also children who, precisely, are wary of such unproblematic arrangement of
childhood and adulthood in watertight compartments. Usually the child who
works has an inextricable link with the adults in her or his family, a link that
makes her or him proud and that fills that work with meaning. This link is ever
renewed through the work itself. Children acknowledge themselves as important members of the family (us) through collective work (Barlett, 1993;
Invernizzi, 2003; Katz, 2004; Liebel, 2004; Miller, 2005; Bolin, 2006 and Leyra
Fatou, 2012). And yet, it is the very prohibition of children’s work, merely
because of being children, what curtails that deep bond, and pushes to construct the boundary that creates childhood as a separate and subordinate
­reality with regards to adulthood. As put by Mayall (2002: 9), children are
‘a minority social group, whose wrongs need righting’.
Amongst children’s rights researchers, Onora O’Neill (1992: 37–39) also
rejects the analogy of the situation of children with other oppressed groups.
She argues that there are at least four dimensions that distinguish children’s
dependency (subordination, lesser status) from the dependency of other
oppressed groups. First, she says, children’s dependency is not artificially created; second, it cannot end merely by political or social change; third, children
depend on those who do not depend on them, unlike, for example, slaves,
whose owners also depended on their work and, last, the supposed “oppressors” of children usually want to end dependency. However, once we attend to
the previous “faces of oppression”, especially to the oppression implied by the
banning of child work, it becomes clear that the analysis of O’Neill is bounded
and blinded by the hegemonic childhood. Because, and replying to her points,
first, and as I have argued here, it is clear that the dependency created by the
curtailing of children’s economic agency is artificial. Second, and because of
this, a social and political change could certainly empower them, as children
and as workers, and it is for that change that nats are struggling (nats, 2000;
Liebel, 2003, 2004, 2008, 2012; Cussiánovich, 2006 and Cussiánovich and
Méndez, 2008). Third, children who work are dependent on their families, just
as these are dependent on them (Levine, 1999; Mayall, 2000; Invernizzi, 2008 and
Leyra Fatou, 2012), and talking of (in)dependence is in itself highly misleading
(Cordero Arce, in press).22 And at last, the position of the International Labour
Organization (ilo) and of the h
­ egemonic discourse of children’s rights in
22
So, it is not that children are independent per se, which they are not, but that neither are adults,
no matter how much adultism tries to construct them as such (see Cordero Arce, in press).
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general, is a clear proof that “the ­oppressors” do not want the dependency of
children to end (Invernizzi and Milne, 2002; Liebel, 2007; Invernizzi, 2008;
Morrow, 2010 and Nieuwenhuys, 2007, 2011).
To sum up, children are a minority group subjected to the structural oppression of an adultist system (intergroup oppression). In other words, we can discern the axis of adultism crossing the diverse faces of oppression (see Barrère
and Morondo, 2011: 23). Once acknowledged this, which, as said above, is an
empirical issue and thus varies across childhoods, we have to enquire as to the
answer of the hegemonic discourse of children’s rights, specifically the crc, to
this reality. To do this it is helpful to look at other international human rights
instruments which have minorities as their addressees. For example, we know
that, from its title onwards, the Convention on the Elimination of All Forms of
Discrimination against Women (cedaw) is an instrument conceived to fight
back and eventually eliminate all forms of discrimination against women, as
women (anything that impairs the recognition and enjoyment of human rights
on a basis of equality of men and women [Art. 1, cedaw]); the same as the
Convention on the Elimination of All Forms of Racial Discrimination (cerd)
is an instrument conceived to fight back and eliminate all forms of racial discrimination, that is, for example, of black people being discriminated for being
black people (anything that impairs the recognition and enjoyment of human
rights on an equal footing [Art. 1, cerd]). But it can hardly be stated that the
crc was conceived to battle the discrimination of children as children; merely
for being children. The crc only protects children against being discriminated
as poor children, black children, female children, aboriginal children, homosexual children, etc. (Art. 2, crc). This reveals a stark conceptual difference
between cedaw and the cerd, on one side, and the crc, on the other, because
more than to protect children against discrimination, the crc is just intended
to protect children or, better said, to the adult protection of children; ‘simply to
safeguard their survival’ (Lopatka, 1992: 49).23 So, if cedaw wants to fight back
and eliminate sexism, and the cerd wants to fight back and eliminate racism,
23
I say there is a “conceptual” difference with cedaw and the cerd because, as MacKinnon
(2006) notes, in practice reservations have watered down the implementation of cedaw.
Further, Mackinnon claims that the very concept of women's rights in cedaw is not
nearly strong enough, at least not when compared with instruments such as the cerd
(MacKinnon, 2006: 6, 11). In the same vein, Donner (1994: 242) believes that the drafters of
cedaw ‘created a document with much less protection against discrimination aimed at
women than found in its prototype, the Racial Convention’. However, considering what
has been explained so far, I believe that the comparison made by MacKinnon and
Donner between cedaw and the cerd reveals a quantitative difference, whereas
the comparison between those instruments and the CRC reveals a qualitative one: the
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it cannot honestly be also said that the crc wants to fight back and eliminate
adultism.
We have insisted on the fact that law and society are not separable realities,
that legal solutions are always taken within a social context. So, if there is structural oppression in society, law can never be neutral regarding it: it either
works positively to overcome/subvert it (for example, through laws and policies of affirmative action), or is its accomplice. This complicity might manifest
itself by omission, when the law enshrines an illusory formal equality belied by
the substantive social inequality in which that law is applied (Barrère, 2008: 55).
Or it may be manifested directly by action, as happens with the crc. As has
been suggested above (sections 2.2, 2.3), the problem is not only that the crc
functions inside an adultist social context, but that it is itself an adultist piece
of legislation (see also Boyden, 1997; Milne, 2005, 2013; James, 2011 and Cordero
Arce, 2012, and in press). So the challenge, once again, is to make good sense
of the crc.
If difference is not the path for this, as I said above, neither is sameness.
Paraphrasing MacKinnon (1991: 85), the question we should engage with as
children’s legal studies’ scholars is: “why should a child have to be the same as
an adult to get what the adult gets simply because of being one?”. The challenge is thus to overcome the adult as the measure of all human beings, and
more specifically, of the legal subject, just as feminists have been struggling for
centuries to overcome man as that very measure (see MacKinnon, 1991). Now,
we have also established that no emancipation will come from above, that
downhill rights always strike, never just flow (contra Federle, 1994), that is, that
it is not just a matter of changing the law to meet the challenge of a change
that is also social. On the contrary, this is a challenge that can only be faced
from below, from the “below” of children’s voices, struggles and commitment
with their own emancipation. As previously suggested, and thoroughly argued
elsewhere, nowadays that “from below” finds its most powerful expression in
the struggles of the social movements of working children and youth, for
whom adults are respectful collaborators – or, considering the criminalisation
of child work, straightforward accomplices – of their struggles (Liebel, 2003,
2004, 2008; Cussiánovich, 2006; Cussiánovich and Méndez, 2008 and Cordero
Arce, in press). If children’s rights are to be constructed as a branch of antidiscrimination law, that construction will take place from the periphery to the
(Euro)centre.
difference between protecting against discrimination (cedaw and the cerd) and simply
protecting (crc).
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To conclude this section, it is necessary to go back to Article 2, crc, mentioned above, and engage in the intersectional approach that attends to every
other variable of social analysis apart from age, such as gender, ethnicity, class,
etc. (see Crenshaw, 1989, 1991). Children’s law as antidiscrimination law must
visibilise, and feed back and boost the empowerment of, the gay in the boy,
and the boy in the gay; the black in the girl, and the girl in the black; the working
class child, and the working class child, etc.
The (Uneasy) Relationship between Children’s
Rights and Children’s “Sciences”
Unlike children’s legal studies, children’s rights are not a discipline, in the sense
of the threads of the big fabric of childhood studies we talked about in s­ ection 2.1.
According to the approach advanced here, children’s rights should stem from
children’s citizenship (section 2.2), that is, should emerge with the normative
legitimacy of being from children, with children, and by children (section 2.3),
and with the clear idea that, as a minority group, law is never a neutral endeavour regarding children (section 2.4). So, children’s rights stem from their equal
freedom and dignity with the rest of humanity, as claimed by children’s own
struggles for their rights (see also Hanson and Nieuwenhuys, 2013: 5). However,
their endpoint in law is surely shaped by a wide array of disciplines.
So, the question in this last section concerns the space that the diverse disciplines of the fabric of childhood studies should have in the shaping of children’s laws. Today, developmental psychology occupies a de facto monopoly of
this space.24 Briefly speaking, developmental psychology studies/constructs a
“child” whose telos is adulthood, who becomes an adult by walking through
natural, universal, successive and pre-defined stages, from incompetence and
dependence to competence and independence, and who is particularly sensitive to twists and deviations from this developmental path which, if to happen,
will surely manifest themselves as adult pathologies.25 This understanding is
what, as stated by White (1998), guides the law and justice of child welfare
in the minority childhood configuring what he terms an authentic psycho-­
legalism. Thus, decisions about a child’s competence, her or his best interests,
2.5
24
25
It is certainly more than contentious to include developmental psychology in the current
fabric of childhood studies, from the perspective of developmental psychology (Morss,
2002) and of childhood studies (Thorne, 2007 and Cordero Arce, in press). But, as said in
section 2.1, child – if not developmental – psychology should have a place within childhood studies.
For critical appraisals of developmental psychology, see Henriques et al., 1984; Walkerdine,
1993; Morss, 1996 and Burman, 2008.
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the amount of understanding necessary to determine her or his responsibility,
or about when, who and by whom is adopted, are, all of them, left in the hands
of developmental psychology (Burman, 2008: 9).
This explicit reliance on developmental psychology is assumed by a vast
number of legal scholars, many of whom are strong supporters of children’s
rights (thus Wald, 1979; Campbell, 1992; Eekelaar, 1992; Freeman, 1992; Purdy,
1994; Buss, 1999; Brighouse, 2003; Fortin, 2005; Campoy, 2006 and Tobin 2013).
So, for example, Wald (1979) holds that before ‘giving children a specific right it
is necessary to determine whether children are likely to have the capacity to
make the decision for themselves’ which implies determining ‘what types of
skills a person needs to make a given decision and to what degree children
of any given age possess the requisite abilities’, exploration which should begin
‘with the research regarding the intellectual, social and moral development of
children’ (Wald, 1979: 273–274; and see also Freeman, 1992: 67). Freeman (1992)
and Eekelaar (1992, 1994) also follow developmentalism when endorsing that
children’s law, through ad hoc versions of paternalism, should collaborate in
leading children to the doorsteps of an autonomous and rational adulthood
(children as becomings and not-yets). Buss (1999) acknowledges and endorses
developmental supervision of judicial decisions and even criticizes that legal
scholarship concerning development has been restricted to ‘the development
of logical reasoning skills’ (Buss, 1999: 897). She intends to widen this supervision referring to research on “socio-cognitive development” that would serve
to discourage the initiatives to empower children during trials. According to
her, ‘developmental literature suggests that a child’s immature conception of
self, of the roles people play, and of his [sic] relationship to the people performing those roles will all pose serious obstacles to a lawyer’s achievement of
the empowerment goal’ (1999: 899, my italics), and concludes that ‘because
many children lack the capacity to appreciate their influence over their lawyers
or the court, lawyers often will do children a considerable disservice if they
premise their representation on the empowerment ideal’ (1999: 898, my
­italics). Similarly, Fortin (2005) affirms that ‘the evidence on developmental
growth through childhood … establishes clearly that children are different from
adults in development, behaviour, knowledge, skills and in their dependence
on adults, most often their parents …’ and that ‘it seems clear … that the relatively slow development of children’s cognitive processes makes the majority
of children unfit to take complete responsibility for their own lives by being
granted adult freedoms before they reach mid-adolescence’ (2005: 5, my
­italics), because they ‘are obviously more prone than adults to limit their own
future prospects by making unwise short-term choices’ (2005: 22, my italics).
However, children ‘soon move out of dependence and into a developmental
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stage where their capacity for taking responsibility for their lives needs encouraging’ (2005: 6, my italics).
This reliance on developmental standards also permeates the crc (Art. 6,
crc), which depicts a vulnerable, needy and dependent child; needy of and
dependent on adults, which highlights children’s difference and otherness, concepts so dear to developmentalism. Further, the crc always depicts “the child”
under the wing of a responsible adult, generally her or his parents, because
“the child” is just getting ready to become responsible (Art. 29.1.d, crc). Even
children’s “participation”, locked in Article 12 crc, is literally constrained by
developmental standards, concerning what it means to be ‘capable of forming
his or her own views’ and the evaluation of ‘the age and maturity of the child’
(see Smith, 2002: 75 and Cordero Arce, 2012: 372–378).26
So, here we find the first problem with allowing developmental psychology
to enter the shaping of children’s laws, which is, as it can be inferred from what
has just been said, the content of developmental psychology, what it says about
children. According to mainstream developmental psychology, as reproduced
by the hegemonic children’s rights discourse, children are in – but slowly
overcoming – a state of becoming, immaturity, difference, dependence,
­
­unfitness, lack of wisdom, neediness… The issue, then, is how to fit this depiction of children with the one advanced in the previous sections of this paper,
and of course, it is impossible. The idea of rights from, for, with and by children, of children’s citizenship, of children defining their rights, and struggling
for them, and of children enjoying their rights on an equal (not different) footing with adults, directly challenges the idea of the developing child enshrined
by psycho-legalism or legal developmentalism.
But there is a second, more fundamental problem with allowing developmental psychology to enter the shaping of children’s laws, and that is how and
from where it gets to say what it says about children. Psycho-legalism is the
result of the almost uncontested authority of developmental psychology,
claimed by developmentalism itself on behalf of its alleged “scientific” nature.
As put by Huber (1993: 225), ‘the rule of law is indeed a grand thing, but not half
so grand as the rule of fact … Some part of those facts will depend on the laws
of science, which … represent the highest law of all’. There is an appeal to science as a supposedly objective and neutral authority which can and must lead
children to their ontological telos which is adulthood. Backed up by science,
26
For a thorough critique of developmentalism in the hegemonic discourse of children’s
rights as enshrined in the crc, including, also, how it dispenses with children’s contexts,
with children’s communitarian interdependencies, and with the rich diversity of childhoods, which even means proscribing alternative childhoods, see Cordero Arce, in press.
international journal of children’s rights 23 (2015) 283-331
Maturing Children’s Rights Theory
317
developmentalism is not merely engaged in a descriptive mission, but also in a
normative one: it says not only how children are, but how children should be.
Thus its double disciplinary vocation, because it assumes the entitlement to
define children, and to command them to abide by those definitions (Kessen,
1979; Walkerdine, 1993; Bloch, 2000; Castañeda, 2002; Cannella and Viruru,
2004; Burman, 2008 and Woodhead, 2011).27 As a result, legal developmentalism turns out to be not really about children’s right to develop, but about their
duty to do so (see Cordero Arce, 2012: 387–395).28
This is the real problem with legal developmentalism; not only, or mainly,
that it depicts children as incomplete beings, citizens in the making, needy,
incompetent and unknowing, but that it claims the indisputable scientific
authority to make such bold statements.
In an effort to tone down the criticism on developmentalism, Woodhead
(2011: 52) has said that within mainstream developmental psychology there has
long been a concern with acknowledging children as active, competent and
socially engaged, adding that the problem would just be the discourse about
those agency and competence, which tends to objectify “the child”, that is, to
narrate agency and competence as the agency and competence of a thing. But
Woodhead does not attend to the reach of this objectivation of children, which
highlights the problem we are dealing with here: no matter how much developmental psychology gets to acknowledge competencies in the child, for
example, lowering the (st)age for the acquisition of certain logical skills, the
very fact of doing so implies to keep on acting from a disciplinary position in
which it is itself, developmental psychology, the one entitled to define and
classify “the child” as such an (in)competent (see Walkerdine, 1993: 457). What
developmental “science” does is to decide how much of a person, or what type
of person, is a given person, or category of persons, in this case, a given child,
27
28
Serres (1974: 259) is certainly right when he says that ‘there is no pure myth except the
idea of a science that is pure of all myth’ and he is especially right if we think of developmental psychology, which intends to lead children not to just any adulthood, but to a
rational (i.e. abstract and formal reasoning), productive and self-regulating one, that is, to
the adulthood of Western-based capitalist societies (Harré, 1984: 252; James et al., 1998:
17–18; Bloch, 2000: 258; Appel, 2009: 709).
The authoritarian and colonial vocation of science has been highlighted also within the
field of philosophy. Vattimo and Zabala (2011: 14) say that ‘in order to assure its progress
within society, philosophy, through its metaphysical obsession with truth, dissolved into
the sciences, that is, into the global organization of all beings within a predictable structure of causes and effects’; and then they warn that (p. 37): the desire for dominion often
results in metaphysical thought, not the other way round (i.e. the desire to control children in the objective scientific knowledge/description of children).
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or children in general. So, as long as there are some people, in this case, hyperqualified adults mainly from the minority world, who regard themselves to be
entitled to define who knows and who does not, who thinks well, and who
does not, who is competent and who dependent, who is a pre-citizen, and
who a citizen, the agency and independence that they acknowledge to others
will always be the agency and independence of objects, that is, of things. As
such a thing, or object, the representation of “the child” made by the psychologist in her or his lab will be perforce dissociated from the representation of
children as actors, social agents, which has as its central feature the self-representation of children themselves (see Latour, 2007: 52–53). Therefore, although
the approach that privileges certain kind of scientific research is important (for
example, see Alderson, 2008: 155–156), because it shows a shift of trend within
child psychology, towards more context-aware, ethnographic, qualitative
approaches, it is still insufficient because it does not transcend the modern
scientific framework that entitles some people (i.e. adults) to define (i.e. control) other people (i.e. children) (see Walkerdine, 1993: 457). Put another way,
even if I am convinced that the statement is true and needs to be made, politically we do not seem to move ahead when saying that ‘almost everything that
has ever been stated [about children’s incompetence] from a normative point
of view, such as the egocentricity of the preschool child or their inability to be
reliable witnesses, has been shown to be wrong and to have grossly underestimated children’s competence’ (Smith, 2002: 82, my brackets), because soon
there appears someone waving other “science” that speaks to the contrary (as,
for example, expressly does Fortin, 2005: 75–76). So, even if there are plenty of
good reasons to support an understanding of children as competent agents,
good reasons are not reason enough to give a legitimate shape to the rights and
laws of children. The problem, then, lies not in developmental psychology as
such, but more generally in making science the arbiter of children’s laws.
Nelken (2009: xviii) has argued that law frequently disengages from the
facts, understood as science: ‘law is more obviously subject to the play of political calculation which […] often leads to choices that are more concerned with
what the public believe, expect and want, than what experts advise’. But the
case is that children, with regards to their rights, are not yet a public entitled to
influence legal policies.
So, scientific supervision is in radical contrast with the idea of children as
citizens, makers of their own laws (i.e. autonomous beings), rights’ definers. If
children’s rights stem from children’s equal freedom and dignity with the rest
of humanity, they can only be shaped by disciplines that respect and enhance
equality, freedom and dignity; that engage in laws from, with, and for, children.
In this sense, legal professionals who share the critical political commitment
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Maturing Children’s Rights Theory
319
we are advancing here are necessary in order to give ‘legal shape’ to children’s
claims (Barrère, 2008: 66–67).
I wrote in section 2.3 of children’s right to define and not to be defined. After
the previous exposition, the right not to be defined emerges as children’s right
to shape their rights as dikes to hold back science’s definitions.
Before concluding, there is an issue that cannot be sidestepped when discussing children’s rights theory and the relation between children’s laws and
science, and that is the theorising of age:
the complex articulation of different types of temporality – his­torical, generational, chronological, phenomenological, developmental, b­ iological –
should be central to the study of children and childhoods. Questions
about individual growth and the shifting constitution of persons over
time, which are central to the study of human development, have the
potential to enrich the anthropology, sociology, geography and history of
childhood.
Thorne, 2007: 150
However, I have drawn attention to this only at the end, because all too often
the question about age comes in too soon in the discussion, always resulting in
the closing down of the rest of the questions; in the closing down of the silences
we want to open up as critical committed scholars. This happens, first, at a
theoretical level, with developmentalism acting as the guardian of time, conceived as one and the same for every child, clear and unproblematic as the
numbers of a calendar. In this sense, Buck-Morss (2010: 68) states that if, as
Adorno said, ‘history is in the truth’, that is, if in every truth there is history and
every truth is historical, then ‘history, hence temporal change, is at play in the
pragmatics of truth, which can never be understood as a foundational ground
untouched by time’. That is why ‘it matters who owns time’ because its owners
will also administer its meaning. Second, and because of the reach of developmentalism, it also happens in everyday life: the first two questions that a child
from the minority childhood is usually asked by adults are: “what’s your name?”
and “how old are you?”. By knowing the child’s age, the adults assume to know
what that child can or cannot do, what that child needs or does not need, what
that child must, or must not do. Maybe if we were to listen to what children say
they want, need, like and dislike, we would realise, by the end of the conversation, that the question about age was not missed (see Freeman, 2007: 15).
Theorising age then?, yes, but if rights are to stem from children and be
shaped respectfully of that origin, we have to transcend the necessary, but still
insufficient, scientific aim of developing ‘approaches to human development
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[that] are more fully historicized, informed by meaningful attention to culture
and social structure, and enriched by close attention to the ways in which children negotiate the process of growing older and participate in a range of social
institutions’ (Thorne, 2007: 150). Children have the right not to have their times
defined by science, that is, the right to be the owners of their time, to reclaim a
time for themselves instead of having to comply with adult-defined developmental milestones; for example, a right to remain silent when asked about age,
that is, about their “calendar time” (see Woodhead, 2011: 51–52).
3
Concluding Remarks
Allison James (2010: 216) acknowledges that the “new” sociology of childhood
began with
a common intellectual agenda, fuelled by shared assumptions about the
ontological status of both children and childhood … there was agreement, first, that children could – and should – be regarded as social
actors; second, that childhood, as a biological moment in the life course,
should nonetheless be understood as a social construction; and finally,
there was methodological agreement about the need to access children’s
views first hand.
Another key assumption of the then “new” sociology of childhood was that ‘to
proclaim a new paradigm of childhood sociology’ was ‘to engage in and
respond to the process of reconstructing childhood in society’ (Prout and
James, 1997: 8). This was, thus, a political engagement. In this paper I have
argued that children’s legal studies have no “common intellectual agenda”, and
elaborated on some issues and concepts that might prove fruitful to start
advancing a shared critical intellectual agenda on children’s legal studies,
which might help to engage in and respond to the political process of reconstructing children’s rights theory. The issues and concepts that I elaborated on,
which I think need to be further and more thoroughly addressed, are, as
explained above: (i) serious interdisciplinarity, which means thinking, discerning and strengthening the place of the thread of children’s legal studies inside
the fabric of childhood studies; (ii) children’s citizenship, which means encouraging a steady move from the emphasis on “participation” to an emphasis on
citizenship; (iii) normative legitimacy, which means understanding children’s
rights and children’s laws as of and by children; (iv) children’s law as a branch
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321
of antidiscrimination law, which implies conceiving children as a minority
group, and adultism as the structural axis of the hegemonic childhood and the
hegemonic children’s rights discourse; and (v) the independence of children’s
rights from children’s “sciences”, which means assuming that children’s rights
can only depend on children themselves (from, of, with, by children). These are
some of the tools and concepts that children’s legal studies’ might offer to the
wider study of children and childhood, and they may as well serve to deepen
the study of children’s rights themselves (see section 2.1, above). In particular,
they might prove to be helpful tools and concepts for children’s own struggle
for their rights; they are tools and concepts to be used by children.
However, as I said at the beginning, these are not all the issues that I think
deserve (more) theoretical attention. Certainly, for example, everything that
concerns interdependence, care and duties is important and still also undertheorised, but these issues represent a challenge to the theory of human rights
as such, not only to children’s rights theory. These concepts defy the model of
the allegedly independent and autonomous (adult) rights-bearer, so when
dealing with them we have to talk about human interdependence, human
need for care, and human rights’ inseparability from human duties. Here, I have
tried to engage with children’s rights theory as children’s rights theory, which
means trying to take children, their rights, and the theory about their rights,
once and for all, seriously (Freeman, 1992, 2007).
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