The Nature and Function of Rights

From Hohfeld (1913) to Wenar (2013)

Aline Cole-Albäck (2014)

Introduction

1.  The children's’ rights discourse has been accused of being under theorized and therefore lacking credibility.

2.  Legal philosophers also accuse other fields for using rights language and concepts without understanding fundamental legal concepts and problems, thereby undermining the concept of human rights and children’s rights in particular. I other words being uncritical activists as opposed to critical proponents.

3.  There are two main features a rights theory needs to explain according to Wenar (2008); logical structure and normative function.

4.  The Hohfeldian framework is a widely accepted analysis of the logical structure or the nature of rights.

5.  However, there is a longstanding disagreement about the function of rights, that is, ‘what rights do for those who hold them’ (Wenar, 2008, p.253). The two main competing theories on the function of rights are the Will Theory (WT) and the Interest Theory (IT).

Hohfeld (1913) made a great contribution to the modern understanding of the nature of rights – what rights are – by mapping 8 fundamental legal concepts to clarify the internal structures of rights and legal thinking. He identified 4 different rights that have jural correlations and opposites.

Jural Correlatives: right - duty privilege - no-right power - liability immunity - disability

Jural Opposites: rights - no-rights privilege - duty power - disability immunity - liability

The Nature of Rights

Author Jural correlatives 1st order

RIGHT A right is one’s affirmative claim against another  

DUTY

Hohfeld Claim or control Legal obligation

Corbin Enforceable claim Action or forbearance

1st order

PRIVILEGE A privilege is one’s freedom from the right of another

NO-RIGHT

Hohfeld Freedom No legal control

Corbin Free or at liberty to act as you please No penalty for disobedience

2nd order

POWER Affirmative control over a legal relation against another

LIABILITY

Hohfeld Legal ability Responsibility

Corbin Own voluntary act New legal relations A-B, B-C

2nd order

IMMUNITY Freedom from the legal power or control of another

DISABILITY

Hohfeld Exemption No-power

Corbin No liability No legal power

Hohfeld’s Jural Correlatives and Opposites – The Internal Structure of the 4 Types of Rights

The Nature of Rights – Points for Clarification

Just as Hohfeld recognised in his day, there is still a broad and generally indiscriminative use of the word right. The word right is commonly used as any sort of legal advantage, (whether claim right, privilege, power or immunity), and often confused with the term privilege. According to Hohfeld the word right should only be used as the correlative of duty. To confuse power with capacity is also unfortunate according to Hohfeld as capacity relates more to ‘operative facts’ rather than a legal concept (1913, p.17). Liability is equally often loosely used as a synonym for duty or obligation, however it is about responsibility towards others according to Hohfeld. Andrews (1983) proposes a relationship between power and rights in his ‘Hohfeld cube theory’. Hohfeld and Corbin did not address this relationship directly.

The Nature of Rights – Points for Clarification

All rights that we know can be classified according to Hohfeld’s 4 types of rights or incidents (concepts) (Wenar, 2005). But many familiar rights are also a combination of Hohfeldian incidents:

An arrestee has the right to remain silent

PRIVILEGE not to speak

CLAIM That the police not force him to

speak

Rights of exception or discretion Rights of protection, provision or performance

�  Active rights are PRIVILEGES and POWERS. They are exercised. (‘A has a right to phi’, where ‘phi’ is an active verb)

�  Passive rights are CLAIMS and IMMUNITIES. They are enjoyed. (‘A has a right that B phi’, where ‘phi’ is an active verb)

The Nature of Rights – Critics

Although all rights that we know can be classified according to Hohfeld’s 4 types of rights or incidents, Penner and Melissaris (2012) feel Hohfeld’s analysis has peculiar features that conflict with the normal use of words used by lawyers and lay people as the eample below illustrates:

A no-right is is the opposite of a right, and a liberty the opposite of a duty, because if you do not have no right that I do not assemble, then you do have a right that I do not assemble, and if I have no liberty to assemble, then I must have a duty not to assemble (p.112-113).

The Function of Rights – Monastic Theories

Monistic Theories are single function theories. In single function theories some Hohfeldian incidents, or combinations of incidents do not qualify as rights because they do not perform a particular function. In other words, all rights need to have some single function, although theories differ as to what that particular function is (Wenar, 2005). Examples of single function theories are the Will theory and the Interest theory, and numerous modifications of the two.

The Function of Rights – The Will Theory

Under the Will theory only those combinations of incidents that give their holders certain kinds of choices are properly regarded as rights according to Hart (1982), the most prominent Will theorist of the last century. In addition the right-holder needs to have the capacity to exercise a choice, to be able to claim a right. That is, the capacity for reasoned decision-making and the power to either enforce a choice, waive a choice or leave it unenforced (Ross, 2013). In other words, a legal claim combines the Hohfeldian concepts of power and claim (Kramer, 2010). In its purest interpretation, children are therefor excluded as a group from holding rights on the grounds that they do not have the capacity to make rational choices. Originally Hart stated that just because something is wrong, for instance ill-treating a child, does not not justify giving children rights (1955).

The Function of Rights – The Will Theory cont.

Some well known Will theorists are: �  Immanuel Kant (1724 – 1804) �  Friedrich Carl von Savigny (1779 – 1861) �  Hans Kelsen (1881 – 1973) �  H. L. A. Hart (1907 – 1992) �  Carl Wellman (? – �  Hillel Steiner (1946 –

The principal Will theory tenet: Both necessary and sufficient for the holding of some special right by X is that X is competent and authorized to demand or waive the enforcement of the duty that is correlative to the right (Kramer, 2010).

The Function of Rights – The Interest Theory

The Interest theory limits the term rights to those incidents that further their holder’s interests and well-being (MacCormack, 1982). Those fall in the category of Hohfeldian claims (Cowden, 2012; Kramer 2010). In other words, a person has rights regardless of capacity as it is a person’s interest and well-being that are protected. Children are therefore included as a group to hold rights. ‘Children may sometimes lack the capacity to exercise their rights but it is their interests, not their capacity, which found their rights under the interest theory’ (Tobin, 2013, p.397). Children’s rights theorist have, by and large, endorsed the Interest theory (Hannan, 2012, p.18).

The Function of Rights – The Interest Theory cont.

Some well known Interest theorists are: �  Jeremy Bentham (1748 – 1832) �  Rudolf von Ihering (1818 – 1892) �  Joseph Raz (1939 – �  Neil MacCormick (1941 – 2009) �  Michael Freeman (? – �  John Eekelaar (1942 – �  Matthew Kramer (1959 –

The general Interest theory tenets: (I) Necessary though insufficient for holding of a legal right by X is that the duty correlative to the right, when actual, normatively protects some aspect of X’s situation that on balance is typically in the interest of a human being or collective or nonhuman animal. (II) Neither necessary not sufficient for the holding of some specified legal right by X is that X is competent and authorized to demand or waive the enforcement of the duty that is correlative to the right (Kramer, 2010).

* According to Kramer et al., (1998), Raz and MacCormick do not follow Hohfeld’s framework closely

The Function of Rights – The Interest Theory cont.

Raz is considered by many as the most prominent Interest theorist. He states that rights depend on: …‘there being interests whose existence warrants holding others subject to duties to protect and promote them’ (2007, p.22). Raz further believes that the value of a political conception of human rights and by extension, children’s rights, is that they transcend private morality. Human rights are dependent on individual interests that impose a duty on others and are not immune from interference by the international community (ibid.). Raz proposes connecting the interests of children with the interests of others (1984).

The Function of Rights – The Interest Theory cont.

The Interest theory can accept a wide range of Hohfeldian incidents as promoting the well-being of a right-holder and as such rights, however, a criticism against the theory is that there exists in reality many rights that are not about promoting well-being. Rights that define occupational roles such as that of judges has been an example Will theorists use against the Interest theory. ’A judge has a (power) right to sentence criminals, but this right is not designed to benefit the judge’ (Wenar, 2005, p.20). Matthew Kramer’s Interest theory therefore does not consider role-defining rights as rights per se. This is just one unresolved point in the decades long disagreement between Will and Interest theorists …

The Function of Rights – Modified Theories

‘The theoretical debates that took place throughout the 1980s and 1990s over what it means to say that children have rights failed to reach a consensus on how best to understand the notion of children’s rights’ (Ferguson, 2013, p.178). The difficulty with both the Will and Interest theory is that they are too narrow and that ‘the weakness of each theory is the strength of the other’ according to Wenar (2005, p.17; 2008). Academics have tried to resolve this standoff by modifying both theories or by creating hybrid theories. Modified Will theorists are for instance Victor Worsfold (1974) suggesting three necessary features of children’s rights; practicability, universality and paramount importance, and Hillel Steiner (2008) who focuses on the role of government officials and their discretionary powers in relation to rights.

The Function of Rights – Modified Will Theory

Despite modifications to the Will theory, making it interesting and relevant to the general debate about theories of rights, when it comes to children, it is difficult to reconcile with children’s rights and the CRC, as children do not have a direct voice under this theory. Even Hart himself eventually questioned his own theory and modified it by stating that children can be right-holders through representatives, acting in their interest (Hart, 1982). In other words, ‘The action and decisions taken by the representative are deemed by law to be those of the child’ (Ross, 2013, p.700). Beck et al., (1978) agreed with Hart and feel that children’s interests, or rights, should be protected by adults, as trustees until children have reached what Rawls calls the ‘age of reason’ (1972, p.183). This however leaves children vulnerable to the representative’s or the adult’s possible conflict of interest and private morality.

The Function of Rights – Modified Interest Theories

Modified Interest theorists debating children having rights are for instance Eekelaar, Freeman, MacCormick and Tobin. John Eekelaar proposes we should look at defining 3 types of children’s rights: basic, developmental and autonomy rights, with autonomy rights subordinate to the other two types (1986). The preconditions for rights are the social perception that an individual or class of individuals has certain interests and that these interests must be capable of isolation from the interests of others (ibid.). Michael Freeman’s (2012) proposes in his framework that children’s rights should be classified in 4 types of rights: welfare rights (what society owes children), protection rights (minimum standards), rights to be treated like adults, and rights against parents. He also endorses a form of liberal paternalism, a balance between nurturance and self-determination.

The Function of Rights – Modified Interest Theories cont.

MacCormick (one of Hart’s most ardent critics) stated that according to the interest theory, ascribing rights to children stipulates that: ‘for the class in question there is some act or omission performance of which in the case of each and every member of the class will satisfy, protect, or advance some need, interest, or desire of each such individual;

and satisfaction of that need, interest, or desire is of such importance that it would be wrong to deny it to any such individual regardless of ulterior advantages in doing so’ (1982, p.160). MacCormick later modified this statement in light of the debate as he began questioning limiting rights to needs, interests, or desires (addressed further down). Fundamental to his understanding of children’s rights are children’s need for care, nurture and love.

The Function of Rights – Modified Interest Theories cont.

MacCormick’s modified version of the interest theory regarding children’s rights states: ‘a law which is conceived as conferring on members of Class C a right of treatment T, is envisaged as advancing the interests of each and every member of C on the supposition that T is (normally) a good for each and every member of C’ (1982, p.164).

As opposed to the will theory, MacCormick asserts that children’s rights should not be able to be waivered by children or anyone on their behalf. And so the arguments and counter arguments continued … but … after decades of analytical debates, a different angle is emerging in John Tobin’s modified theory.

The Function of Rights – Tobin’s (2013) Modified Interest Theory in more detail

Only recently has the CRC been directly mentioned in relation to rights theory. The Social Interest Theory (SIT) offers a justification for the conception of rights under the CRC, despite an under theorized conception of rights. The level of moral agreement underlying the CRC, as reflected in the deliberation process involved when it was negotiated, is evidence for its justification according to Tobin. There are two dimensions to the SIT: a descriptive and substantive dimension: The descriptive dimension describes the deliberative process by which agreement is reached on those interests that are elevated to rights, that is, the moral consensus during a drafting process. The substantive dimension involves the identification of interests to be elevated to rights and the correlative duties on states which must include right-holders (or their representatives) and duty-bearers.

The Function of Rights – Tobin’s (2013) Modified Interest Theory in more detail

The CRC is the starting point of this theory and is read as an illustrative list of children’s interests. Children should be engaged in the interpretation and implementation of these rights. The three main concepts of the SIT are: 1. The interests of the child as well as the obligations of the duty bearers both need to be considered. That is, the duty bearer must accept an obligation. 2. The recognition of the struggle to regulate power in the production of rights as a political process and the position of the CRC to challenge current processes. 3. Reflective practice as a way of mitigating individual values in the identification of interests deemed worthy of being rights.

The Function of Rights – Tobin’s modified Interest Theory in more detail cont.

The role of participatory research is essential to mitigate the risk of proxy or representative interests, drawing on lived experiences rather than assumptions. Involving all stakeholders in the process is in line with a rights-based approach to research (Lundy and McEvoy, 2012). Tobin unpicks well some common dilemmas of the CRC such as: the adult construction dilemma, western dominance during the drafting process, anti-family concerns, liberationist and protectionist concerns. ‘A social interest theory offers a good, albeit imperfect justification for the idea of human rights for children, as expressed by the CRC’ (Tobin, 2013, p.433). This is a bottom-up approach still in need of some clarifications.

The Function of Rights – Hybrid Theories

Hybrid theories hold that right-holders have some rights that are grounded in interests, as well as some that are grounded in autonomy. Sarah Hannan’s theory proposes that we are capable of holding the two types of rights proposed in the Will theory and Interest theory, however ‘will-based autonomy rights ought to be predicated on the capacity to proceed through the relevant thought procedure under the right circumstances’ … that is … ‘if we lower the bar for autonomy we will see that many children have the same status as adults; that is, the status of beings who are capable of autonomy under the right circumstances’ (2012, p.24-25). A right-holder should therefore have the right to waive interest theory well-being rights, when competent according to Hannan (contrary to what MacCormick (1982) states).

The Function of Rights – Cowden’s Hybrid Theory in more detail

Mhairi Cowden (2012) addresses the capacity argument within rights theory which is a fundamental concept to both the will and interest theory. Cowden uses the Hohfeldian framework to show how she comes to the conclusion that capacity is not a prerequisite for holding claim rights, privileges and immunities, however how capacity is needed for holding the Hohfeldian incident of power. She therefore concurs that under the Will theory, linking rights with power, a child cannot be a right-holder as they lack capacity. Cowden also uses the Hohfeldian framework to demonstrate that because ‘a claim is always defined by the actions of the duty bearer, neither capacity nor competency on the part of the claim-holder is relevant to their status within Hohfeld’s framework’ (2012, p.368), in line with the Interest theory, a child can be a right-holder.

The Function of Rights – Cowden’s Hybrid Theory in more detail cont.

Cowden then adds her stipulation to the Interest theory that ‘if a child does not have the competence to realise the benefit to which the claim pertains, the interest may not qualify as of sufficient importance to be protected’ (p.373). She argues rights should be contingent on an individual’s interests and ability to realize the benefit of the interest in order for the interest to be of sufficient importance to impose duties and restrict the liberties of others. This allows children to hold limited interest rights before the age of 18, according to their evolving capacity. Interestingly Cowden uses the Hohfeldian framework to justify her modified theory, neglecting Hohfeld’s warning not to confuse capacity with rights, as capacity relates more to ‘operative facts’ rather than a legal concept, according to Hohfeld (1913, p.17).

The Function of Rights – Hybrid Theories

Gopal Sreenivasan has developed the Complex Hybrid (CH) thesis, has been recognised as a potential, but in its current form, unsuccessful effort to find a genuine alternative to the Will and Interest theories according to Kramer and Steiner (Kramer and Steiner 2007; Kramer, 2011).

CH principal tenet: Suppose X is duty-bound to ϕ. Y has a claim-right against X that X ϕ just in case: Y’s measure (and, if Y has a surrogate Z, Z’s measure) of control over a duty of X’s to ϕ matches (by design) the measure of control that advances Y’s interests on balances.

This theory generalises the measure of control under the WT, and limits the number of people it classifies as correlative claim-holders. It is therefore particularly directed to the third party beneficiaries argument (see Kramer’s (2010) clarification of third party promises or contracts).

The Function of Monistic and Hybrid Theories – Interim Conclusion

Hybrid theories can be seen as representing dualistic or a dual function theory and interesting modifications to the two competing monistic theories (Cole-Albäck, 2014), however, they still inherently carry with them the same critical weaknesses that the original Will or Interest theory are criticised for. What is needed is a new conceptualisation to resolve the standoff according to Wenar (2005). An alternative to single function approaches and hybrid or dual function theories could be several function theories or the all function theory according to Wenar (ibid.). Kramer and Steiner do not agree. They feel that :

‘Instead of searching for a third way, analysts of rights are best advised to develop ever more refined versions of the Interest Theory or the Will Theory’ (Kramer and Steiner, 2007, p.310). Alternatively developing non-rights approaches to the legal regulation of children is also an option, according to Ferguson (2013). They will be discussed briefly further down.

The Function of the All Function Theory In an all function theory any of the four Hohfeldian incidents, or any combination of incidents, would count as X’s right, were it ascribed to X.

Such an understanding has to date not been developed into a functional theory but could be called the Any-incident Theory if there was one (Wenar, 2005). It is very unlikely that this theory would be a viable alternative to current theories as it would be too inclusive as it counts as rights some Hohfeldian incidents that we ordinarily would not.

The any-incident theory says that each incident or combination of incidents is a right, regardless of whether that incident or combination of incidents performs any function at all. However, the purpose of a right is to perform a function so there is no point of a right without function. There are, for instance, immunities that do not perform a function (for example the city council not having the power to award you a pension). Another more realistic theory according to Wenar (2005) would be a limited pluralistic theory or several function theory.

The Function of a Several Function Theory

Wenar’s several function theory subtracts the counterintuitive cases from the any-incident theory (2005). There are two fundamental forms of rights assertions: ‘A has a right to phi’ and ‘A has a right that B phi’, where ‘phi’ is an active verb.

(1) Each right can be identified with one or more of the Hohfeldian incidents

(2) Each right has one or more of six specific functions: exemption, discretion, authorization, protection, provision, performance. ‘Any assertion of a right can be translated into an assertion about a single Hohfeldian incident, or into an assertion about a complex of incidents, or into a set of alternative assertions about such incidents. All rights are Hohfeldian incidents’ (2005, p.14).

Author Jural correlatives 1st order

RIGHT A right is one’s affirmative claim against another  

DUTY

Hohfeld/ Corbin Claim or control/Enforceable claim

Legal obligation/ Action or forbearance

Wenar Rights offer protection, provision or performance of action

1st order

PRIVILEGE A privilege is one’s freedom from the right of another

NO-RIGHT

Hohfeld/ Corbin Freedom/Free or at liberty to act as you please

No legal control/No penalty for disobedience

Wenar Exemption from a general duty or a privilege endowing discretion or the choice to act, or not

2nd order

POWER Affirmative control over a legal relation against another

LIABILITY

Hohfeld/Corbin Legal ability/Own voluntary act

Responsibility/New legal relations A-B, B-C

Wenar The ability to create, wave or annul some lower-order incident. Confers authority

2nd order

IMMUNITY Freedom from the legal power or control of another

DISABILITY

Hohfeld/Corbin Exemption/No liability

No-power/No legal power

Wenar Protection, provision or performance against harm or paternalism

Wenar’s 2005 and Hohfeld’s Conceptions – The Internal Structure of the Types of Rights

The Function of a Several Function Theory cont.

Wenar’s theory was criticized by Kramer and Steiner as, although a ‘stimulating contribution’, simply a version of the Interest theory and in need of considerable refinement to be a viable alternative to existing theories (2007, p.299). Wenar (2013) has since taken the next step in developing his theory into a functional rights theory in what he calls the Kind-Desire Theory, which is an expansion of the Role Theory. Wenar uses well-known counterexamples to the Will and Interest theories to defend his theory as superior to the other two. There are three central concept to the K-D theory: roles, kinds and desires. ‘The concept of “desire” is the centre of gravity of the claim-right, around which “will” and “interest” circle’ (ibid., p.299).

The Function of a Several Function Theory – The Kind-Desire Theory

Definitions of the three central concepts:

1.  Roles: role identification is a primary factor explaining human action. 2.  Kinds: ‘A kind is a set of entities that share defining characteristics’.

There are natural kinds [what something is] (gold, planet, child, parent, human) … and there are social kinds, of which roles form one very large subgroup’. To be a baby, and to be a goalie, is to be a member of a kind—natural and social, respectively (p.218).

3.  Desire: Duties that a group of people deem important to fulfill. Desire-attributions relevant to rights are context-sensitive.

The Kind-Desire theory tenet (p.218-219): Some system of norms refers to entities under descriptions that are kinds (“parent,” “journalist,” “human,” etc.). Within such a system, claim-rights correspond to those enforceable strict duties that the members of the relevant kind want [or have reason to want p.219] to be fulfilled.

The Function of a Several Function Theory – The Kind-Desire Theory cont.

Formalization: Consider a system of norms S that refers to entities under descriptions that are kinds, D and R. If and only if, in circumstances C, a norm of S supports statements of the form:

1. Some D (qua D) has a duty to phi some R (qua R); where “phi” is an verb phrase specifying an action, such as “pay benefits to,” “refrain from touching” “shoot,” and so on. 2. Rs (qua Rs) want such duties to be fulfilled; and 3. Enforcement of this duty is appropriate, ceteris paribus;

then: the R has a claim-right in S that the D fulfill this duty in circumstances C.

The Function of a Several Function Theory – The Kind-Desire Theory cont.

‘Where the claim-rights are within any normative system will depend on what is due from, and what is desired by, the kinds of things that populate that system’s ontology (Wenar, 2013, p.228-229). ‘To prove that a certain normative system contains some claim-right, one must show that the performance of a strict duty by the members of one kind is desired by the members of another as such’ (ibid., p.229).

The Function of a Several Function Theory – The Kind-Desire Theory cont.

Example in relation to children: ‘Our duties to young children not to abuse them correlate with rights in those young children not to be abused, because young children (like everyone, or perhaps even more than others) have reason to want not to be abused’ (Wenar, 2008, p.219). How exactly this theory can be apply to children’s rights is however not developed yet and Wenar quite soberly states that ‘a settled understanding of human rights is as yet beyond our collective grasp’ (2013, p.225). This is a form of legal pluralism. Legal pluralism is becoming a more common concept in the current rights discourse as the title for the 2014 December conference at the Norwegian Centre for Human Rights indicates; Human Rights and Legal Pluralism in Theory and Practice.

Visual Summary

Hohfeld’s Concepts of Rights

Function of Rights

WT Modified WT IT Modified

IT Hybrid

Theories Pluralistic

Theory

Philosophical and Moral Theory

WT Steiner

Left

libertarian

IT Raz

Social justice

Modified IT

Mac-Cormick

Social Demo-cracy

Modified IT

Freeman

Dignity

Hybrid

Cowden

Com-petence

Hybrid Hannan

Circum-stantial

autonomy

K-DT

Wenar ?

Alternative Approaches

�  The Welfare Approach

�  The Obligation-based Approach

�  The Caretaker Thesis

Alternative Frameworks – The Welfare Approach

The history of child protection legislation in the UK dates back to 1889 when the first Act of parliament was passed for the prevention of cruelty to children (see www.legislation.gov.uk). There has bee countless number of laws and guidance since, that have been continually amended, updated and revoked but the current child protection system is based on the Children Act 1989. Under the welfare-based approach, the ‘best interest’ of the child is the central principle of the model. Parents are assumed to be acting in their child’s best interest and in the event that this is not the case, the state will intervene (Eekelaar, 2006). Individual children’s rights can be taken in consideration within a welfare-based approach under the current law as evident in the Gillick v. West Norfolk and Wisbech AHA (1986) case.

Alternative Frameworks – The Welfare Approach cont.

Ferguson (2013) questions if it would not better to regulate children’s lives through the welfare model rather than the lens of children’s rights since there is currently no coherent theory of children’s rights. Assuming that a rights-based approach will provide better outcomes for children, as opposed to a welfare or duty-based approach is erroneous according to Fergusson. She argues that ‘we have no reason to think that regulating children in terms of children’s rights is necessarily better than alternative approaches’ (ibid., p.202). However, because of the interwoven nature of the rights and welfare-based reasoning in the court cases Ferguson uses to argue her point, Ferguson is not able to convincingly show that a rights-based approach did not play a positive role in the outcome for the children in case (Cole-Albäck, 2014).

Alternative Frameworks – The Welfare Approach cont.

‘If we could demonstrate a causative connection between thinking of children in terms of children’s rights and improved outcomes for children, it would make sense to think of them in terms of children’s rights despite the theoretical incoherency’ (2013, p.205).

Although sceptical about a children’s rights approach, Ferguson concedes that:

A small scale study by Covell et al. (2011) in Hampshire compared year 6 children in three schools who had to varying degrees implemented children’s rights education and concluded that ‘fully implemented children's human rights education, among its other benefits*, may be one means of narrowing the gap between socially disadvantaged children and their more advantaged peers’ (p.193). *The other benefits were a deeper understanding of rights and social responsibility as well as an improved school climate.

Alternative Frameworks – The Obligation-based Approach

Barbara Arneil (2002) promotes an Ethic of Care Framework based on: 1. Responsibilities and obligations versus rights and rules. 2. The family and society valued as a community (rather than an association). 3. The importance of attachment and connectedness between people. 4. Reconceptualization of autonomy. An obligation based framework is however based on paternalism and justified because:

Children are thought to merit paternalism both because they have not yet developed the cognitive capacity to make intelligent decisions in the light of relevant information about themselves and the world, and because they are prone to emotional inconstancy such that their decisions are likely to be wild and variable (Archard, 2004, p. 78).

Alternative Frameworks – The Obligation-based Approach cont.

Arneil (2002) suggests an ethic of care, that emphasizes responsibilities over rights, is a more accurate interpretation of children's interests and developmental needs. There is an intuitive appeal to an ethic of care approach as no one can deny that children thrive on attention, kindness and affection; however, suggesting that rights are not compatible with an ethic of care assumes a false dichotomy as rights often involve aspects of care together with legal perspectives. A duties-based framework alone may also not be compatible with the European Convention on Human Rights (Ferguson, 2013).

Alternative Frameworks – The Caretaker Thesis

‘The ‘caretaker thesis’ offers an account of why children should not be free to make autonomous decisions, and of how their caretakers should be guided in making decisions for them (Archard, 2004, p.77). Proponents of the thesis often recognize some children’s rights but usually not the autonomy rights. Laura Purdy (1992) promotes one version of the caretaker thesis by insisting that only rational and autonomous individuals should have liberty rights because giving children the liberty to make choices will adversely affect children’s ability to grow up into well functioning adults according to Purdy. However, Purdy does endorse granting children some adult rights according to their evolving capacity such as some sexual and reproductive rights and some civil rights.

Alternative Framework – The Caretaker Thesis cont.

It has to be noted that under the caretaker thesis adults are not free to make indiscriminative choices on behalf of the child. The caretaker must make choices on behalf of the child based on what the child would choose if the child was competent to make a choice, and in the interest of the adult the child will one day become (Archard, 2004).

Summary

All above frameworks share concern for children, however use ‘different lenses on the legal regulation of children’s lives’ (Ferguson, 2013, p.202-203). The difficulty with many of the above theories and frameworks is that they are too narrow and advance a monistic view to account for what is essentially a pluralistic phenomena (Wenar, 2008, p.269). Each theory claims a certain aspect as its own and consequently criticise other theories for their lack thereof. Each theory must by necessity hold on to the focus of their function or they would loose the basic character of their theory (Wenar, 2008). Being focused on just one function maintains these theories in a stalemate and the debate remains unresolved, however, according to Wenar, ‘progress will only be made with the abandonment of the shared monistic premise and the adoption of a pluralistic approach’ (2008, p.269).

Visual Summary

Duties-based

Approach

Against children’s

rights

Barbara Arneil

Onora O’Neil

Thomas Simon

Welfare Approach

Rights may be

used

Children Act 1989

Lucinda Ferguson

Caretaker Thesis

Limited rights

accorded

Laura Purdy

Monistic Approach

Will Theory

H.A.L. Hart

John Rawls

Interest Theory

Niel Mac-Cormack

Joseph Raz

Michael Freeman

Modified WT

Hillel Steiner

C.P Wellman

Mahiri Cowden

Modified IT

John Eekelaar

Matthew Kramer

John Tobin

Dualistic Approach

Hybrid Theory

Sarah Hannan

Samantha Brennan

Gopal Sreeni-vasan

Pluralistic Approach

Kind-Desire Theory

Leif Wenar

?

All Inclusive Approach

Any-incidents Theory

x

Will Theory Tenet and Link to Children

Both necessary and sufficient for the holding of some special right by X is that X is competent and authorized to demand or waive the enforcement of the duty that is correlative to the right.

ê Both necessary and sufficient for the holding of some special right by children is that children are competent and authorized to demand or waive the enforcement of the duty that is correlative to the right. The alternative is that relevant powers and choices are exercised on behalf of a child by others [deemed to be] possessing the required capacity such as parents, guardians, tutors or curators (Ross, 2013).

Modified Will Theory Tenet and link to Children – Cowden (2012)

Rights are constrained by the competence of the claim-holder and the importance of their interest to impose upon others’ Hohfeldian liberties.

ê A child only holds a right when they have the competence to realise the benefit to which the claim pertains. If a child does not have the competence to realise the benefit to which the claim pertains, the interest may not qualify as of sufficient importance to be protected.

Interest Theory Tenet and link to Children – Kramer’s definition (2010)

(I) Necessary though insufficient for holding of a legal right by X is that the duty correlative to the right, when actual, normatively protects some aspect of X’s situation that on balance is typically in the interest of a human being or collective or nonhuman animal. (II) Neither necessary not sufficient for the holding of some specified legal right by X is that X is competent and authorized to demand or waive the enforcement of the duty that is correlative to the right.

ê

(I) Necessary though insufficient for holding of a legal right by children is that the duty correlative to the right, when actual, normatively protects some aspect of children’s situation that on balance is typically in the interest of a human being or collective or nonhuman animal. (II) Neither necessary not sufficient for the holding of some specified legal right by children is that children are competent and authorized to demand or waive the enforcement of the duty that is correlative to the right.

Interest Theory Tenet and link to Children – MacCormick’s classic definition (1982)

(I) for the class in question there is some act or omission performance of which in the case of each and every member of the class will satisfy, protect, or advance some need, interest, or desire of each such individual;

(II) satisfaction of that need, interest, or desire is of such importance that it would be wrong to deny it to any such individual regardless of ulterior advantages in doing so.

ê

(I) for children there is some act or omission performance of which in the case of each and every child will satisfy, protect, or advance some need, interest, or desire of children;

(II) satisfaction of that need, interest, or desire is of such importance that it would be wrong to deny it to any child regardless of ulterior advantages in doing so.

Modified Interest Theory Tenet and link to Children – MacCormick’s modified statement (1982)

a law which is conceived as conferring on members of Class C a right of treatment T, is envisaged as advancing the interests of each and every member of C on the supposition that T is (normally) a good for each and every member of C

ê

a law which is conceived as conferring on children a right of treatment as expressed in the CRC, is envisaged as advancing the interests of each and every child on the supposition that the Articles of the Convention are (normally) good for each and every child (Cole-Albäck, 2014)

Hybrid Theory Tenet and link to Children – Hannan (2012)

(I) will-based autonomy rights are predicated on the capacity to proceed through the relevant thought procedure under the right circumstances. (II) to the extent that children have some fundamental and universal interests, they should be granted well-being rights that protect theses interests.

ê

Children can hold both will-based autonomy rights and interest-based well-being rights, and can waive well-being rights when competent.

Complex Hybrid Thesis Tenet and link to Children – Sreenivasan (2005)

Suppose X is duty-bound to ϕ. Y has a claim-right against X that X ϕ just in case: Y’s measure (and, if Y has a surrogate Z, Z’s measure) of control over a duty of X’s to ϕ matches (by design) the measure of control that advances Y’s interests on balances

ê Suppose a professional is duty-bound to comply with the CRC. A child has a claim-right against the professional that the professional complies with the CRC just in case: a child’s measure (and, if a child has a surrogate, then the surrogate’s measure) of control over a duty of the professional’s to comply with the CRC matches (by design) the measure of control that advances the child’s interests on balances (Cole-Albäck, 2014)

Social Interest Theory and link to Children – Tobin (2013)

The conception of children’s rights under the CRC is justified by its process of deliberation and collaboration in identifying interests deemed suitable for recognition as rights by right-holders and duty-bearers.

Kind-Desire Theory and link to Children – Wenar (2013)

Some system of norms refers to entities under descriptions that are kinds (“parent,” “journalist,” “human,” etc.). Within such a system, claim-rights correspond to those enforceable strict duties that the members of the relevant kind want [or have reason to want] to be fulfilled

ê The system of norms under the CRC refers to children. Within such as system, claim-rights correspond to those enforceable strict duties that children want, or have reason to want to be fulfilled (Cole-Albäck, 2014)

So where do we go from here?

The Substantive* Route

Although Wenar (2008) and Ferguson (2013) proposes that the best way forward is to continue developing a coherent conceptual legal theory of children’s rights before proceeding with applying the discourse of rights, there are academics who are suggesting a substantive approach as the way forward. Tobin’s SIT approach to children’s rights involves a substantive dimension that proposes the joint identification of interests to be elevated to rights and the correlative duties. The starting point is the CRC that is used as an illustrative list. All stakeholders, and children in particular, should be involved in the interpretation and implementation of the CRC according to Tobin (2013). Quennerstedt also identifies the need for research to be more theorising and contextualised to validate the diversity of children’s experiences (2013). *The Oxford dictionary defines substantive as ‘having a firm basis in reality and so important, meaningful, or considerable’ or ‘defining rights and duties, as opposed to giving the procedural rules by which those rights and duties are enforced’.

The Substantive Route cont.

Reynaert et al. (2012) strongly urge for a more critical approach to the academic debate on children’s rights, linked to the daily experiences of children in their ‘lifeworlds’ (p.165). They also argue that critical proponents should use the Articles of the CRC not as goals to reach through a top-down approach, but as a frame of reference for educational practice to: ‘attempt to understand and interpret different social construction of children’s rights, bringing into dialogue these different understandings and interpretations in order to comprehend better children’s rights and how the children’s rights framework can contribute to a greater respect for children’ (p.156). Research into children’s rights should aim to gain insights into policy and practice for furthering a dialogue, with the aim to changing practice in the direction of a greater respect for the dignity of children. In other words having a firm basis in children’s realities.

Concluding Thoughts

Tobin from Australia, Reynaert from Belgium and Quennerstedt from Sweden are suggesting a future approach in line with a substantive approach as an alternative to the current abstract, analytical standoff. Quennerstedt, (2013) suggests the challenges faced involve: distinguishing between advocacy and research by being a critical proponent of children’s rights, questioning the current focus on global or international consensus building.

Secondly, increased theorisation, involves not seeing the CRC as ‘the theory’ in the current situation. With the lack of a coherent common conception of rights. Drawing on a variety of fields such as social work and health care, sociology, gender studies and education is important.

Further, a local, contextualized, or substantive educational perspective, should be the focus, to be able to take specific everyday lived experience into account to value the diversity of children’s lifeworlds.

Concluding Thoughts

What needs to be acknowledged is that since the proliferation of human rights in the second half of the 20th century, ‘theory and practice travel along two different tracks and at very different speeds’ (Bobbio, 1995, p.47). There is therefore no need to see the analytical or legal theorization of the function of rights, advocated by Ferguson and Wenar in conflict with Reynaert, Tobin and Quennerstedt’s call for a substantive or experiential approach to further the discourse on children’s rights. Both are needed to further the debate about children’s rights and children’s moral and political status.

4 Levels of Theorization

Children’s Rights Discourse

Hohfeld’s Nature of Rights

Claim-rights

Privileges

Powers

Immunities

Function of Rights

Will Theory

Interest Theory

Hybrid Theories

Pluralistic Theories

Philosophical and Moral Views

Steiner Left Libertarian

Raz Social Justice

MacCormick Social Democracy

Cowden Developmental

Substantive Approaches

Quennerstedt Context and experiences

Formosinho Praxeological

research

Reynaert CRC as political

frame of reference

Stammers Critical proponent

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