There are two approaches to the justification of rights, the will (or choice or option) theory and the interest theory of rights [Kramer, Simmonds and Steiner 1998; Archard 2011]. The will theory claims that rights secure a person’s ability to choose between options, their agency. Rights protect a person’s autonomy, the ability to make significant decisions about the rights holder’s life. Rights holders are responsible for the consequences of their choices, they reap rewards and accept the penalties of the
74 “It [Switzerland] recently changed its constitution…and made a law last year establishing
rights for creatures such as goldfish and canaries. Pigs, budgies and other social creatures cannot be kept alone; horses and cows must be regularly exercised outside their stalls and dog owners are required to take a training course to learn how to properly care for their pets…If citizens had voted for the initiative, each canton would have appointed a lawyer to act on behalf of animals at taxpayers' expense.” [Williams, 2010].
decisions that they make. This may or may not be a correct justification for adults (who can choose in a way that makes sense to call choosing: they can understand available information and choose – however imperfectly – between options). But as young children cannot make choices, and the choices of older children may
legitimately be overridden, this justification does not work for children. An adult’s right allows them to choose which of two or more options to pursue. And with that choice comes responsibility. Young, incompetent children cannot choose in any meaningful sense. An infant, who cannot talk, cannot meaningfully choose whether or not to have measles vaccine, or even what time to go to bed. The claim that rights protect a child’s will or choices is wrong for young children and the way that it could be instantiated for older children (whose decisions may be overridden) is unclear. The alternative justification for rights, the interest theory, suggests that rights protect an individual’s significant interests. Some of an individual’s interests are very important to being a person (in the philosophical sense of person), and unless the person’s interests are protected, they will not be a human person, living the sort of fulfilling life that a person should. It is these sorts of interests that are protected by rights, the core interests needed to be truly human. The sorts of interests that individuals may choose, that are particular to an individual, may not be protected by rights. As such the rights- protected interests include the right to life, the right to free expression, and so on.
The will theory of rights has the appeal that protecting choice protects agency and autonomy, the important features that define the beings who are rights holders, usually taken to be the group that is of the highest moral standing. However some features of rights sit poorly with the will theory. For example, rights forbid some choices: one cannot sell one’s own organs for donation [Wilkinson S, 2012], nor can people sell themselves into slavery. In these examples, rights prevent choice, they do not protect choice. That rights protect a person’s important interests seems a better explanation of the role of rights in these cases.
Children are a test case between the two justifications of rights. Young children cannot choose in a meaningful sense and parents may override an older child’s choices. If so a child’s rights cannot be justified by the fact that rights protect the child’s choices, a child’s rights must protect their interests. Therefore, the will theory cannot justify rights for children. However from here the argument can go two ways. Firstly a
response can be that because children have rights the will theory cannot be the correct justification for rights and so the will theory must be dismissed. And so, because children have rights, the interest theory must be the correct justification for rights (assuming we only have these two potential justifications). The second response is to insist that the will theory is correct, acknowledge that children’s rights are not justified by the will theory, and accept that young children do not have rights.
This may be too quick. Some separate rights into two sorts: welfare rights and agency rights, with different underlying justifications. Welfare rights (the right to health, education and so on) are justified by an appeal to interests. Agency rights (to free speech, to vote and so on) are justified by protection of choice. If this is so, children’s welfare rights may be protected by an appeal to their interests (as may adult’s welfare rights). Adults may have other rights too: their agency rights. Here however, the move is away from ‘human’ rights but to particular rights for particular groups, undermining universalism, one of the strongest appeals of rights.
A further way in which the will theory may justify children’s rights is by recognising that children may have proxies (their parents) to make the choices and exercise the child’s rights on the child’s behalf: “…children still have rights but the choices, which are constitutive of these rights according to the will theory, are made by
representatives of the children.” [Archard, 2011]. The claim is that children have agency rights, but that others hold and exercise these rights for the children. Feinberg describes one particular group of children’s rights as “rights-in-trust”. These are rights that “…are to be saved for the child until he is an adult, but which can be violated ‘in advance’, so to speak, before the child is even in a position to exercise them…His right while he is still a child is to have these key options kept open until he is a fully formed, self-determining adult capable of deciding among them.” [Feinberg, 1980: 126]. However, the appeal to proxies for children is a marked difference from the way that rights are usually understood. An adult would not recognise that they had a right, if they were nor allowed to exercise the right and furthermore the right could be exercised by another with the adult’s active dissent.
The arguments for and against the will and interest theories on the basis of the claim for children’s rights are not decisive, but it is clear that children present particular problems when claims are made for children’s rights.
Recognising that children’s and adults’ rights are different brings another question. What is the relation between human rights and children’s rights? Do children (because they are human) claim the full list of human rights no more and no less? The preamble to the Declaration on Human Rights states “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of…” and the first Article states “All human beings are born free and equal in dignity and rights” [United Nations 1948]. The Declaration makes the strong claim that all humans, and so children too as human children, have equal rights, and this claim is reinforced by the note that all humans are born equal, indicating that the rights are considered equal from birth. At least in the proclamations, there is no gradation between humans: it is not true that rights differ as a consequence of age. However, this is no more than the language of rhetoric. Some rights may be common to adults and children, but it is clear from the content of the Declaration’s and the Convention’s rights that children’s rights are different, and should be different. What is less clear is what distinguishes adult from child and what the justification for the different content of rights might be.
Some rights may be common to both children and adults – for example the right to life75. Other rights may be particular to adults or children. Human rights include the right to free choice of religion. In the Declaration (of human rights), Article 14, the adult’s right is phrased as “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his
75 Article 3 of the Declaration states “Everyone has the right to life, liberty and security of
person” [United Nations, 1948] which is analogous to Article 6 of the Convention “…every child has the inherent right to life. States Parties shall ensure to the maximum extent possible the survival and development of the child” [United Nations, 1989]. Another example, Article 5 of the Declaration states “No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment” [United Nations, 1948] is the same as the start of Article 37 of the Convention “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment” [United Nations, 1989].
religion or belief in teaching, practice, worship and observance” [United Nations, 1948], but in the Convention (of children’s rights), the child’s right is curtailed by parental authority. Article 14 reads “States Parties shall respect the right of the child to freedom of thought, conscience and religion…shall respect the rights and duties of the parents…to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.”[United Nations, 1989]76 The
child’s right is not the same as the adult’s human right. As a further example of the differences between adult and children’s rights, in Article 28 of the Convention a child’s rights include the right to education “States Parties recognize the right of the child to education…Make primary education compulsory…” [United Nations 1989]. But this is a right to education understood as an obligation or a requirement to be educated. The right to education does not allow the child to waive the right.
Furthermore, the education is (by a parental right) not necessarily chosen by the child, nor in the children’s interests as “Parents have a prior right to choose the kind of education that shall be given to their children” [United Nations, 1948: Article 26]. Children may be treated in ways that would infringe an adult’s rights. Another example can be found in a claimed right to be loved, which may be held by children, but not by adults77.
My arguments in this section have demonstrated that although rights-based claims are made prominently and often, the justification for rights in general and children’s in particular are unclear and contentious. It is likely that rights-based approaches will be less useful in the absence of a clear basis and justification for children’s rights.