Child Rights

The Movement, International Law, and Opposition

Clark Butler, Clark Butler

• Publisher: Purdue University Press
• Year: 2012
• ISBN:
  9781612492049
• Topic: Politics & International Relations
• Subtopic: Treaties
• Index: Politics & International Relations

Over twenty years after the 1989 UN General Assembly vote to open the Convention on the Rights of the Child (CRC) for signature and ratification by UN member states, the United States remains one of only two UN members not to have ratified it. The other is Somalia. Child Rights: The Movement, International Law, and Opposition explores the reasons for this resistance. It details the objections that have arisen to accepting this legally binding international instrument, which presupposes indivisible universal civil, political, economic, social, and cultural rights, and gives children special protection due to their vulnerability. The resistance ranges from isolationist attitudes toward international law and concerns over the fiscal impact of implementation, to the value attached to education in a faith tradition and fears about the academic deterioration of public education. The contributors to the book reveal the significant positive influence that the CRC has had, despite not being ratified, on subjects such as educational research, child psychology, development ethics, normative ethics, and anthropology. The book also explores the growing homeschooling trend, which is often evangelically led in the US, but which is at loggerheads with an equally growing social science-based movement of experts and ethicists pressing for greater autonomy and freedom of expression for children. Looking beyond the US, the book also addresses some of the practical obstacles that have emerged to implementing the CRC in both developed countries (for example, Canada and the United Kingdom) and in poorer nations. This book, polemical and yet balanced, helps the reader evaluate both positive and the negative implications of this influential piece of international legislation from a variety of ethical, legal, and social science perspectives.

PART

THE MOVEMENT AND THE UN CONVENTION

One

Children’s Rights: An Historical and Conceptual Analysis

CLARK BUTLERS

THE CHILD RIGHTS CONVENTION IN THE LIGHT OF TWO MOVEMENTS FOR THE RIGHTS OF THE CHILD

There was a time, exemplified by early Roman law, when children were considered property of the family father, who had a life-and-death power over them. This was no longer the case by the time of the French Enlightenment. Yet the enthusiastic reception given to what Jean-Jacques Rousseau (1712-1778) considered his most important work, Emile,¹ was nothing less than the discovery of preschool childhood by the reading public of Europe in the eighteenth century. This was an important and lasting discovery. Before Rousseau, children were often viewed within the upper classes as little adults, and were dressed accordingly, but not allowed the freedom to express themselves as adults. The child rights movement, which Rousseau founded, soon spread to the German speaking world, and eventually to the English speaking world, through writers such as Johann Heinrich Pestalozzi (1776-1827),² Friedrich Froebel (1782-1852),³ and Elizabeth Peabody (1804-1894)⁴—child rights activists to whom we owe kindergarten. The peculiarity of Rousseau’s child rights movement was that it proclaimed the essential goodness and innocence of preschool children. Quite legitimately, it promoted the right of such children to be children, to play and explore and not merely to be seen and not heard. Yet it also aspired to perpetuate childhood as a model of virtue for children into the school years and even into adulthood. Children were virtuous, and adults were corrupt and degenerate, unless they preserved something of the innocence of the child. Rousseau initiated a kind of children’s liberation movement. However, it was not a movement to liberate children from childhood and to enable them to exercise, even as children, adult human rights, like the right to work, as advocated in recent decades by some child liberationists.⁵ Rousseau’s aim was precisely to liberate children from the exercise of such adult human rights. His aim is reflected in article 31 of the United Nations Convention on the Rights of the Child, which declares the child’s right to leisure and to learning by play.

This Rousseauean child rights movement, however, is not the only one that has come to fruition in the UN Convention on the Rights of the Child. What is most striking about the convention, what goes beyond the 1959 UN Declaration of Children’s rights is, I suggest, the result of a very different children’s rights movement—one upheld, for example, by Georg Wilhelm Friedrich Hegel (1770-1831) in express opposition to Rousseau. This essay will defend the neohumanist concept of children’s rights more commonly associated with Wilhelm von Humboldt (1767-1835), but to which Hegel also subscribed. Hegel did not write extensively on children’s rights.⁶ Yet what he does say, developed in close association with his particular philosophy of education, points to respect for a basic right of the child to education in dialogical skills for adulthood, and not merely as an end in itself to be enjoyed by children in deliberating and deciding their own life conditions as children. This is a right that does not depend merely on our universal compassion for the millions of children who continue to suffer in this world due to insecurity and a lack of life’s necessities. Children consciously suffer from starvation. But they may not consciously suffer from violation of their basic right to nonvocational education, which their rights to security and subsistence of course serve to support. Children already appreciate that basic right to the extent that they want to be the equals of adults, but they will fully appreciate it only when they are no longer children.

That there is a “basic” human right may seem to contradict United Nations documents that consistently deny a hierarchy in such rights and hold all such rights to be not only interrelated but indivisible. But we avoid affirming a basic adult human right in the sense of a right which appears at the top of a hierarchy of rights. It can be argued that there is only one adult human right (freedom of expression in dialogue) which “other” rights serve to support. In other words, they are the same universal right under different particular descriptions. Thus, the right to freedom of expression is under one description that very right under the more particular description of a right to food, since the exercise of freedom of expression is severely restricted by starvation. But the same basic right also assumes the form of a right to vote, since governments which we freely elect are less likely to persecute us. The basic universal moral right along with all its particular forms can be justified all at once. They all promote dialogue open to all on an even playing field. Such dialogue results in true belief, and thus in successful action in the world, more than the appeal to self-evidence or dialogue before a restricted audience.

IS THERE A BASIC RIGHT OF THE CHILD?

If we are correct about the basic adult human right, there would seem to be an implied basic child’s right. Hegel rejected the notion, championed by Rousseau and Pestalozzi, that school should be a mere playground in which school-age children learn not merely by the games they play with one another but also, and more fundamentally, by solving problems directly posed by the natural environment.⁷ He rather held that school-age children learn chiefly by increasing association with adults, by participating increasingly in adult activities. Thus, the most intelligent thing children can do with their toys is to break them.⁸ He held that Rousseau’s belief in the essential virtue of children was misguided. Virtue for him was a learned habit. Children perceive themselves as failing to live up to what they ought to become as adults. Educators should focus on helping children realize their potential for adulthood. Children, once they realize the gap between themselves and adults, take the standpoint of their educators and likewise view adulthood as their essential unrealized potential. Achievement of this goal is the central purpose of school education. And if this is the central purpose of K-12 education, it is all the more so the purpose of university education. University educators err if they view entering freshmen and women, during the last stage of childhood, as “their kids” and allow the act of taking their standpoint to gain the upper hand over the expectation that the students should take the standpoint of their educator. The fact that this happens less often in American universities today education reflects a failure of education from the first grade on.

According to Hegel’s hard saying, the natural impulsiveness of school children must first be broken and discipline imposed.⁹ Obedience must be imposed not merely because it is a potential threat to others and to themselves as children, but even more importantly because it is a threat to their own future as adults. It is a mistake for educators to merely encourage play beyond the earliest childhood. However much video games give training in adroit motor skills, they do not induct children into the adult discussion of issues affecting them.

Commentators on the UN Convention commonly divide children’s rights into the so-called three Ps: protection, provision, and participation. Infants and young children, due to their vulnerability, need to be protected and provided for. Their claim to protection and provision, since it is socially validated by a wellnigh universal consensus, establishes specific children’s rights from birth onward in customary international law. Participation rights, increasing participation by children in adult deliberations, gradually come to be exercised by children only in the course of growing up. Participation rights progressively allow children to engage in dialogue about decisions affecting them. They enable children to offer their opinions, if not always to decide. They give them a right to be informed of alternatives between which to choose and of known indirect consequences of their choices insofar as they are able to understand them. The child flees childhood by discontent with his or her childlike state.¹⁰

Participatory rights are declared in articles 12-17 of the convention as rights to freedom of thought, expression, communication, and access to information on all questions affecting the child. Such rights distinguish the convention from the 1959 United Nations Declaration of the Rights of the Child, which is restricted to protection and provision rights. If the convention is interpreted as setting a moral standard, the child’s rights to protection and provision reappear as supports to the basic right of children to participation. The child exercises the dialogical right to participation only by way of exercising rights to freedom from fear and freedom from want.

Children are not yet adults. The list of children’s rights in the convention omits certain adult human rights listed in the Universal Declaration of Human Rights. Children do not have the same right to marry, to vote, to work, or to move freely within and outside the borders of their country—all adult human rights according to the Universal Declaration. But the child rights movement does not define children’s rights merely negatively as not being adult rights. Participatory child rights are conceived positively as rights in support of the adults children will become. Assuming freedom of expression as the basic adult human right,¹¹ the basic children’s right is a right to a kind of nonvocational education already including some scope for freedom of expression, an education that will enable him or her to one day fully exercise the right to freedom of expression. There could be no closer relation between the basic adult human right and the basic right of the child.

A place for play, we noted, needs to be preserved alongside the academy even if school is more than a playground. But children should not be left to believe that everything must be fun and games. Child education should be adult centered and child centered. In part, we grant participatory rights to children because we can learn from them. But children have a right to participation, in part, because the perpetuation of adult cosmopolitan inquiry requires ever new generations of adult dialogue partners.

A child cannot be educated merely through exposure to a diversity of sensory experiences, study tours, or field trips exploring different regions of the natural or increasingly cultural environment. Education should include memorization of words the child does not yet fully understand, encouraging the respect for what only adults understand.¹² Children have a publicly protected right to skills empowering participation in dialogue even against the will of their parents, and even against the will of the child. Children have a duty to develop skills making participation in dialogue a real option, although they have no duty to take that option on any given issue. No duty exists to dialogue under duress; the credibility of dialogue depends on its voluntary character.

Given this concept of the basic right of the child, which ethically the children’s rights movement should support, I want to address six questions about the movement’s use of the convention: Can child rights declared to exist in the convention really exist? If they do exist, how are they “inalienable,” as the convention claims in its preamble? Assuming that the right to education in dialogical skills is the principal right of the child, what form should that education take? Is homeschooling compatible with the convention, and, if so, what kind? Could the United States ratify the convention consistently with the US Constitution? How can the convention be used by the child rights movement in the developing or non-Western world?

DO CHILDREN’S RIGHTS ACTUALLY EXIST?

Since the entire UN human rights regime is committed only to the “promotion” of human rights, the convention does not oblige us to assume that the human rights of the child which it cites actually exist.¹³ The convention itself invokes the norm of acting in the “best interests of the child.”¹⁴ But acting in the best interests of the child may mean paternalistically deciding in the place of the child for his or her own welfare without any assumption that the child has any rights. “Interests” may be translated as “benefits” or “advantages.” An individual who acts to preserve his or her health acts in the best interest of his or her cells, that is, to their advantage. Healthy cells benefit by not being attacked by cancerous cells, but since cells are not persons they have no rights.

Whether or not universal children’s rights exist, it is clear that children have some rights. Rights are, minimal...