The concept of rights

The development of the concept of rights is in tandem with the corresponding religious, cultural, philosophical and legal developments of human civilisation. It is therefore, inextricably connected with the development of socio-democratic traditions. There is ample historical evidence of the existence of rights in societies where systems of propriety and justice were established.52 Early expressions of the concept of rights rest upon the fundamental notion that ‘human rights are held by individuals simply because they are part of the human species’ (Ishay, 2004:3). The state of being human therefore implies that ‘human rights also are inalienable rights’ as one cannot cease being human, ‘no matter how badly one behaves or how barbarously one is treated’ (Donnelly, 2013:10).

In its early contemporary manifestations, the concept of rights emerged as the expression of political will natural to man. These early concepts of rights built upon the theoretical foundations of Paine, Locke and Montesquieu among others formed the basis for transnational concepts of human rights as witnessed in the American

Declaration of Independence of 1776 and the French Revolution of 1789. By the 20th century, the concept of rights had evolved as a moral, political and legal framework that espouses philosophical idealism.

Thus, following the turmoil of the Second World War, the Preamble to the Charter of the United Nations affirms the post-war world order’s belief in ‘fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.’ The Universal53 Declaration recognises

52 _{These range from The Hindu Vedas, the Babylonian Code of Hammurabi, the Bible, the Quran}

(Koran), and the writings of Confucius (Ishay, 2004:7).

53 _{Whether such rights are capable of being ‘universal’ remain a contested matter and forms much}

92 civil, cultural, economic, political and social rights. An analysis of the concept of rights primarily involves understanding both the form and substance of rights. (Emphasis added).

Hohfeld’s (1913) analysis sought to describe the form that the concept of rights took. Thus, Hohfeld’s analysis therefore argues that rights, duties, privileges, no- rights, power, immunity, disability, and liability are correlative concepts. These concepts interplay between each other in a scheme of opposites and correlatives. As such, a person’s rights would correspondingly involve an application of duties and each individual is situated in this complex matrix of relationships. The concept of rights therefore cannot be viewed in isolation from other varying but equally

important concepts. Hohfeld identified four types of rights, and these are claim rights, liberty rights or privileges, powers or abilities, and finally, immunities. These rights are only intended as conceptual tools and therefore arguably are not subject to criticism on the basis that they do not explain our legal understanding of particular rights.

In spite of that view, there have been a number of differing views on the Holfeldian analysis of rights. For example, Neil MacCormick (1977) suggested that a right-holder rather than just being a generalised beneficiary of the rules was the intended

beneficiary of a specific share of benefit. (Emphasis added). Joseph Raz (1986:189), argues that the interest of the right-holder or an aspect of them, are sufficient enough a reason for imposing duties on others either not to interfere with the performance of some action, or to secure the right-holder in something. These criticisms challenged the form or structure of the concept of rights.

In the broader context of analysing the substance of rights, particularly those that impact children, two principal theoretical accounts emerged. The Will theory also known as the choice theory as propagated by Hart (1982), suggests that a fundamental feature of rights is that allows rights-holders to assert a level of control over another person’s duty akin to that of a ‘small scale sovereign’ (1982:183). This then implies that the rights holder has free choice to insist upon their rights, or to waive them. A complication that arises from this line of thinking is that children (at least young ones)

93 cannot be bearers of rights, as they lack the capacity to claim or waive them

(Campbell, 1992). In Campbell’s view, the Will theoryis ‘inadequate as an expression of the moral significance of persons, particularly children’ (1992:1).

However, Hart argues that the Will theory does recognise children are rights– holders, albeit represented by others such as their parents or other guardians until they reach maturity (Hart, 1982).

Neil MacCormick (1982) in his study suggests that the existence of a right precedes the imposition of a duty. It is because children have a right to be cared for and

nurtured that parents have the duty to care for them (emphasis added). Therefore, children do have rights, irrespective of their ability to waive or claim them. The alternative view, identified as the Interest theory (MacCormick, 1982, Raz, 1986, Campbell, 1992) suggests that children, as humans, have rights if their interests are the basis for having rules, which require others to behave in certain ways with respect to these rules. The Will theory is thus inappropriate and should be rejected because of its inability to account for children’s rights (MacCormick 1982, 157–165).

Freeman (1992) argues that the Will Theory is an inadequate explanation of the basis of children’s rights, since children who still lack the capacity to form a will are not in a position to assert these rights at all. As Freeman points out, children have

interests that justify protection before they develop wills to assert their rights. (Emphasis added).

Another approach is to avoid making the dichotomous division between the Will and the Interest theory (or for that matter between rights and needs). Wolfson (1992) suggests treating capability as a continuum, gradually moving from welfare rights to freedoms.

A child is in need of protection because they are deemed to be ‘not yet human beings’ (Verhellen, 1993:358) or ‘adults in waiting’ (Matthews and Limb, 1998:67) and such a view of the child represented the welfare perspective of children, a perspective that dominated the much of the legal response to issues that impact on children.

94 The opposite spectrum to this philosophical debate suggests that children are

autonomous subjects (King, 2007) competent and capable of holding human rights of their own. This philosophical debate framed much of the development of the notion of child rights, particularly in the development of the international framework.

A range of criticisms emerged on the very notion or substance of rights itself. These include among others, broad criticisms on rights, feminist perspectives on the limitations of the rights discourse, postmodernist cynicism, communitarian challenges and cultural relativism perspectives (Tushnet, 1984; Perry, 1984; Smart, 2002;

Faraday, 1994; Olsen, 1984; Gaete, 1993; Ignatieff, 2001; Hutchinson and Monahan, 1984 among others). These criticisms focussed particularly on the individualistic and adversarial nature of rights, the view that the rights discourse is empty rhetoric concealing unjust distributions of power. Critics also argue that rights are

indeterminate, intellectually incoherent, and therefore unhelpful in resolving actual conflicts. Steiner et al (2008) suggest that human rights protected in international treaties are invariably vague and ambiguous and that this malady is most acute with respect to economic, social, and cultural rights. These perspectives find resonance in the human rights debate in Malaysia and will be explored below, particularly in Chapter 6.

Notwithstanding the theoretical disputes and vagueness regarding the concept of rights, the international arena has demonstrated a historical commitment to the issue of rights as reflected in the various international instruments and treaties that have appeared in the 20th century.

Higgins (1999) attributes this infusion of rights in the international sphere to the vagueness of international human rights in itself. Thus, the language of rights is open to a varied and open textured interpretation, which then serves as a means to pursue aspirational goals. International human rights therefore have the means to transform whole societies encouraging collective mobilization rather than individual claims. Higgins suggests that to respond to diversity in identities and cultures the

‘personhood’ and the needs of various types of individuals, with the full range of cultural, gender and geographic differences need to be addressed (Higgins 1999:245)

95 and this of course includes children. The application of the form and substance of the concept of rights can be gleaned from the evolution of the various treaty provisions involving children.

The Geneva Declaration 1924 regarded children as ‘objects’ that need protection, rather than individuals with personal rights. For example, the fourth principle of the

Geneva Declaration provides that, ‘the child must be put in a position to earn a livelihood and must be protected (emphasis added) against every form of exploitation.’

The more detailed Declaration of the Rights of the Child 1959 regarded children as subjects to their own legal rights but still addressed only the protective aspect of children’s rights. Thus, the Preamble to the Declaration highlights children’s need for special care and protection, ‘including appropriate legal protection, before as well as after birth.’

As is clear, both these documents focussed on the rights of children to special measures of care and protection and thus dealt, in fact, with children’s welfare. The notion of children’s freedoms and autonomy had not been specifically acknowledged yet. Article 24(1) of the Covenant on Civil and Political Rights 1966 also alludes to this by providing that a child shall have, ‘the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.’ Similarly, Article 10 of the International Covenant on Economic, Social and Cultural Rights 1966 provided that, ‘special measures of protection and assistance should be taken on behalf of all children.’

With the adoption of the CRC, the approach taken was to strike a ‘balance between viewing the child as the object of caretaking who requires various services and

protections from adults and the rights of the child to act fully in his or her capacity as a person’ (Fass, 2011:18). Thus, the CRC recognises that children have civil, political, economic, social, health, and cultural rights. Perhaps fundamentally as well, the CRC through Article 12 acknowledges the right of the child to be heard directly or

indirectly through a representative in any administrative or judicial proceeding affecting the child.

96 The flurry of states ratifying the CRC led to the need to review state policies on the treatment of children and the philosophical basis for which existing laws and policies that are applicable to the child. Academic discourse centred primarily on the debate as to determining whether a child is capable of having rights.

The CRC is the most ratified of all the treaties on human rights and implies an array of important changes in the social group of childhood. The governments that approved the CRC committed themselves to allowing children to develop their

potential in a context without hunger, poverty, violence, negligence or other injustices or hardships, respecting at the same time their civil, economic, social, cultural and political rights. It also encompasses provisions guaranteeing respect for the child’s identity, self-determination and participation. Countries are legally bound to honour children’s rights, and this yields an opportunity to initiate public dialogue and action on behalf of young children (Arnold, 2004:4).

Thus, the treaty came to endorse, for the first time, the idea that the child as a being in possession of rights and of fundamental liberties. It recognises every child as the bearer of his or her own human rights. These rights are not derived from or dependent upon rights of parents or any other adult. This is the foundation for both the concepts of emancipation and of empowerment of the child.