A positive right to protection for children.

Author:Ezer, Tamar

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.


    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)

    Although children defy the conventional view of negative rights, they lend themselves more readily to a positive rights regime. Their very dependence and capacity for growth call for a positive right to protection and to the means necessary for their development. In fact, in the United States, while positive rights are only accepted "grudgingly and with suspicion," in connection with adults, they are much more easily accepted in relation to children. (9) Many state constitutions have recognized children's education as a fundamental right. (10) State legislatures have further created "welfare rights" especially applicable to children. (11)

    Not only is the adoption of positive rights for children conceptually sound, but it would help assure adequate protection for children, which the current regime fats to do. American jurisprudence is typified by the DeShaney case, decided in 1989, in which the United States Supreme Court held that no fights were violated when a four-year-old child was beaten by his father to the point of brain damage, while the government stood by and a social worker "dutifully recorded these incidents [of abuse] in her files." (12) Conceptualizing the Constitution in negative terms, the Court explained that children have no right to protection from harm, even when there is already government involvement in their lives. (13)

    This paper argues for a positive right to protection for children, rooted in dignity. Protecting the psychological integrity of children requires access to education, while protecting their physical integrity requires freedom from physical harm. In this paper, I focus on the more controversial of the two--looking at the corporal punishment of children within families and the duty of state intervention and protection. Part II defines positive rights and argues that their rejection is simplistic and untenable, using international, domestic, and comparative sources. Part III examines the American approach towards children, highlighting certain flaws. Part IV explores alternate legal approaches toward children using both international and comparative law. Part V advances a rights model rooted in dignity for the protection of children. Finally, Part VI grapples with the practical and conceptual problems posed by a positive right to protection for children, looking at both conflict and enforcement.


    This section examines the notion of positive rights. It gives content to the distinction between positive and negative rights and traces its origins and development. As is evident from international, domestic, and comparative treatment of positive rights, their categorical rejection is both simplistic and untenable.

    1. The Distinction Between Positive and Negative Rights

      Traditional liberal thought has developed an opposition between positive and negative rights. (14) Negative, or non-interference rights, prevent the state from violating individual autonomy, while positive, or integrative rights, impose a duty on the state to provide certain goods and services. (15) Thus, negative rights create distance around individuals, while positive rights connect. (16) This differentiation also reflects two conceptions of liberty: negative liberty, or liberty from, and positive liberty, or liberty to. (17)

      The classical Western notion of rights is negative, stressing choice and autonomy. (18) Since the rights system is rooted in Western political traditions and philosophy, this led the human rights movement to historically assume a greater emphasis on negative rights. (19) Locke's conception of natural rights was intrinsically bound up with the individual's capacity to exercise rational choice as an autonomous human being. Thus, natural rights comprised negative freedoms to protect the individual's self-determination from violation by the state. (20) In this way, the rights model traditionally pits the individual against the state and erects barriers to protect the individual's selfhood from arbitrary government incursion. A fear of tyranny lies at the base of restrictions on governmental power through constitutional rights. (21)

      Western liberal theory asserts the status of the individual and the individual's priority over both the state and society. (22) Under the social contract theory, the state is a product of individual choice, and the individual precedes and justifies the state. (23) Society is the mere sum of free individuals, organized to reach otherwise unreachable goals. (24) As Robert Cover explains, "[T]he first and fundamental unit is the individual and 'rights' locate him as an individual separate and apart from every other individual." (25) Thus, the human being is fundamentally individual, and the individual is seen as an end and kind of absolute. (26)

    2. International Treatment of Positive Rights

      International human rights documents, such as the Universal Declaration of Human Rights (UDHR), the foundation document of the human rights movement, espouse this negative/positive rights distinction. Negative rights are regarded as the civil and political rights enshrined in the International Covenant on Civil and Political Rights (ICCPR), (27) and positive rights are regarded as the economic, social, and cultural rights appearing in the International Covenant on Economic, Social, and Cultural Rights (ICESCR). (28)

      The "official" position, dating back to the UDHR and reaffirmed in multiple resolutions since that time, is that negative and positive rights are "universal, indivisible and interdependent and interrelated." (29) This reveals a recognition that: (1) for civil and political guarantees to have any meaning, it is necessary to assume a base level of living conditions; and (2) as the individual is not self-sufficient, the very conditions of life are assured by society. (30) The international approach thus connects rights with needs and reflects the understanding that the satisfaction of basic needs is essential for the realization of freedom. However, negative and positive rights are not on equal footing, and unlike the ICCPR's treatment of negative rights, the ICESCR only undertakes to realize positive rights "progressively" and "to the maximum of ... available resources." (31)

      The trend in international law has been toward the recognition of greater complexity in human rights than the simple duality between negative and positive rights. Since the adoption of the UDHR in 1948, the United Nations has continuously developed more comprehensive rights instruments, recognizing three categories of rights. (32)...

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