A positive right to protection for children.

Concepts that are useful in other areas of human rights break down in the context of children. Because children are dependent on adults for their development, they are an anomaly in the liberal legal order, which views negative rights as implying fully rational, autonomous individuals that can exercise free choice. This Article argues for a positive right to protection for children, rooted in dignity, by probing the problematic nature of the positive/negative rights duality and exploring alternate legal approaches to protecting children's rights in both international and comparative law. The adoption of positive rights for children would help assure adequate protection, which the current American legal regime, as typified by the case DeShaney v. Winnebago County Department of Social Services, fails to do.

I. INTRODUCTION

Children are an anomaly in the liberal legal order. Conceptualizations that work in other areas of human rights break down in the context of children. Children defy the conventional view of rights as implying fully rational, autonomous individuals who can exercise free choice and require freedom from governmental interference. Lacking fully developed rational capabilities, children are dependent "incompetents" by definition. Furthermore, unlike the term "individual," the term "child" does not stand alone from all others, but necessarily implies a relationship.

The founders of liberal rights theory perceived children to be outside the scope of their philosophies. John Stuart Mill (1) excluded children from his conception of liberty. He wrote:

 
   It is, perhaps, hardly necessary to say that this doctrine is 
   meant to apply only to human beings in the maturity of 
   their faculties. We are not speaking of children ... Those 
   who are still in a state to require being taken care of by 
   others, must be protected against their own actions as well 
   as against external injury ... Liberty, as a principle, has no 
   application to any state of things anterior to the time when 
   mankind have become capable of being improved by free 
   and equal discussion. (2) 

Thus, interestingly, while children do not have a negative claim to liberty according to Mill, they have a positive claim for protection. Mill highlights a recurring tension between liberation and protection in the debates around children's rights.

Locke, likewise, held children to be an exception to his general proposition that "all men by nature are equal." (3) For Locke, rights flow from the human capacity for reason, and the exercise of reason qualifies the individual for the exercise of freedom. (4) He viewed children as not fully rational and saw the human mind at birth as a "white [p]aper, void of all [c]haracters, without any [i]deas." (5) As children were not rational individuals who could freely give their consent to civil government, children could not be parties to the social contract or rights-holding citizens of the state. (6) Children's incomplete reason not only disqualified them from citizenship, but also warranted their subjugation to their parents. Parents "have a sort of [r]ule and [j]urisdiction over them" until they arrive at full rationality. (7) Locke thus excluded them completely from the social contract. However, within Locke's worldview, this does not make sense. If rationality is only gradually developed, why should the granting of rights be an all-or-nothing proposition? (8)