A BRIEF DESCRIPTION OF RIGHTS

To make sense of children’s rights it is important to describe clearly what is meant by rights, both generally and in particular for children. Firstly, some rights are legal rights (sometimes called positive rights). A legal right is stated in case law or in statute law or is based on the ratification of conventions such as the United Nation declarations and is the subject of legal argument and legal resolution. It is clear that children have legal rights in many jurisdictions [see, for example, Bainham, 2005: 97-125].

Legal rights are contrasted with human rights71. If the only rights that existed were legal rights, then the citizen of a country where the law does not permit free speech

71 _{I will use the term human rights through this chapter, as this is the most commonly used}

term, but they are also called philosophical, natural or moral rights. Naming them

philosophical or moral rights recognises that it is possible that aliens, or sufficiently advanced artificial intelligence machines could be rights holders. Naming them ‘human’ rights, as they often are, is problematic if (as I argue) young children do not have these rights. Others have taken this approach. Liao claims “…children have a right to be loved…this right can be grounded as a human right…” [p440 Liao, 2006: 440] but denies that adults have this ‘human’ in saying “Given this, there may not be any general rights of adults to be loved.” [Liao, 2006: 426].

could not make the claim ‘I have a right to free speech’. Or, in the absence of human rights, the claim is nonsense: there is (in that country) no legal right. The claim for a right to free speech depends on a claim for human rights that exist independently of legal rights. However, although human rights are often asserted, the basis of human rights is clouded in dispute. Some deny that human rights exist, most famously Bentham who wrote: “…right with me is the child of the law…a natural right is a son that never had a father ” [Bentham quoted by Waldron, 1984: 4]. Bentham also famously described natural rights as “…simple nonsense: natural and imprescriptible rights rhetorical nonsense, - nonsense upon stilts” [Bentham, 1843: 914]. Another example is given by Russell in writing of his mother who “…shocked the ‘sixties by addressing meetings in favour of equality for women. She refused to use the phrase ‘women’s rights,’ because as a good utilitarian she rejected the doctrine of natural rights.” [Russell, 2003: 402]. Others assert that human rights exist, the preamble to the United Nations Declaration of Human Rights bases human rights on the dignity of man “…reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women…” [United Nations, 1948]. A more reasoned justification bases human rights on the conditions needed for an individual to be a person (Griffin, 2008). As a consequence of the disputed basis of human rights, so too is the content of human rights.

Some legal rights are grounded in human rights, others are not and there is not, nor need there be, a relation between legal rights and human rights. I will use the

declarations and conventions of rights (which may have received legal recognition) as examples of human rights. When human rights cases are used, I use the law as an example to demonstrate the way that the law, and society more broadly, approaches rights and children’s rights.

Another distinction lies in the strength that rights are taken to have. Waldron characterises the strengths of rights in three ways [Waldron, 1984: 14-18]. Firstly, rights may designate that one interest amongst many is particularly important, one that deserves a greater weight than other interests, when interests are considered. Secondly, rights may designate interests that have lexical priority over other interests (rights are ‘trumps’). The third, most demanding strength, is that rights are absolute constraints on what may be done. When rights are conceptualised in this sense, it is never morally

permissible to override a right72. In this conception, there are certain ways to treat a person which are just prohibited (or demanded) by rights. The different strengths of rights require different justifications and provoke different problems. For example, the weaker forms of rights are more easily understood and justified. The rules of rule- utilitarianism may be taken to generate a form of rights, but the rights are not fundamental, their origin is justified by the consequentialist’s calculation. The strongest form of rights provokes several problems. Firstly, why is one constraint a right but another just a matter of etiquette or social convention? When rights are fundamental, the justification for an individual right is often unclear. A further puzzle of stronger versions of rights is the constraint that a person must not violate a right, even though if a rights violation were permitted, overall there would be fewer rights violations. How can this be justified? I will not attempt to answer these questions here, the reason for introducing the questions is to argue that although rights have become an important political tool, there are several different senses to rights and importantly many questions about rights remain disputed.

There have been an increasing number of rights, declarations and conventions of rights and rights-based claims since 1948 when the United nation’s Declaration was

promulgated, though the notion of rights has a much longer history extending certainly to the middle ages, but it is likely to be true that the conception of a right has evolved through time [Chapter 1 Griffin, 2008; Wenar, 2012]. One claim is that the recent enthusiasm for rights was a result of the atrocities of the Second World War [Griffin, 2008].

In the human rights tradition, the demand is that all humans are equally deserving of respect and that all humans should be treated (or sometimes never be treated) in

72 _{Clearly described by Dostoevsky’s challenge in the Brothers Karamazov “…imagine that}

you are charged with building the edifice of human destiny, the ultimate aim of which is to bring people happiness to give them peace and contentment at last, but that in order to achieve this it is essential and unavoidable to torture just one little speck of creation, that same little child beating her chest with her little fists, and imagine that this edifice, has to be erected on her unexpiated tears. Would you agree to be the architect under those conditions? Tell me honestly!” [Singer, 1994: 332]. And Nozick contrasts the strength of different conceptions of rights as “The side-constraint view forbids you to violate these moral constraints in the pursuit of your goals; whereas the view whose objective is to minimize the violation of these rights allows you to violate the rights (the constraints) in order to lessen their total violation within society” [Nozick, 1974: 31].

particular ways. The ways in which they must, and must not be treated, are the content of human rights. The strong claim that human rights makes is that other humans (all humans) have inalienable rights (be they terrorists, or those convicted of child sexual offences, to choose some current bogeymen). Rights are particularly important when interactions between us (and those like us) and those perceived as others (for whatever reason) are considered. Out of this then comes the idea that we all (as individuals73₎

have rights. Although rights are individual rights (rights for particular persons) they are often recognised where there is discrimination against a group (particular examples of this include race and gender). Even amongst those who are favourable towards rights, the claims that count as human rights are disputed. Griffin is positive about rights in general but objects to the inclusion of paid holidays: “The Universal Declaration of 1948…blunders at one point in asserting a right to periodic holidays with pay, which as I mentioned in the introduction, is widely rejected.” [Griffin, 2008: 16]. In the absence of a human right to paid employment, the existence of a right to holidays with pay is an inconsistent approach to human rights.

This brief description points to some ways in which children cause problems for rights. Firstly, children are not individuals. Young children generally are part of a family group. If rights protect individuals, then rights will not be the correct way to approach our treatment of children who must be nestled in a family to survive and flourish (and if children are not in a family group then others will try to recreate a family group by adoption).

Another problem is that children need to be cared for, needing more than just recognition that children are equally human with all others. If all that a child gets is acknowledgement that they are different, separate, an individual who should not be mistreated: that is not enough. In another way of stating it, children may have human rights, but if that is all that they have, then for young children this is nowhere near enough. Because children are different from adults, treating children as adults will not be enough (and treating adults as children will not be right either). This doesn’t mean that children don’t have rights, the claim is that it is unlikely that a generic ‘human’

73 _{A persistent criticism of rights from both the left and right is that rights are too}

right will work for all humans, both adults and children. These ‘human’ rights will either infantilise adults or allow children to be harmed. If this is true then several solutions are possible. We may agree (as I will argue) that some children do not have rights. Alternatively we may maintain the claim that there are human rights, but that children’s rights are a specific subgroup of human rights, or we may claim that children have rights but that these are different in some specified way from adult human rights and parallel to adult rights. Either way it is important to work out what it is that we mean when we talk of children’s rights, and what the content of children’s rights are, but this is rarely done when children’s rights are asserted.

However, notions and assertions of rights, and rights-based language dominate the current zeitgeist and as a natural extension, moral problems involving both children and animals74 have been analysed in rights-based approaches: rights are a political reality. The UN’s Convention of rights for children is referred to widely [United Nations, 1989]. There is a journal named the International Journal of Children’s Rights amongst others. The mainstream argument has moved on from whether

children have rights to a dispute over the content of children’s rights. Freeman argues that the concern of children’s rights advocates has moved from children’s ‘salvation’ (protection) to children’s ‘liberation’ [Freeman, 1983: 26]. Regardless of the

enthusiastic adoption of rights, it is important to understand rights and to agree what is meant in claiming rights for children.