Using ideology as heuristic, a legal sociological approach is employed to critically evaluate a child’s legal status and its evolution since the eighteenth century. Four principal phases are identified: (1) legal ideology of individualism in the common law tradition; (2) movement from status to contract; (3) movement from status to rights; and (4) movement from status to agency. To strengthen legal agency both status and capacity are addressed. In the fourth phase, legal status has evolved in ways capable of facilitating children’s legal agency; it has evolved from being static to being dynamic, and is now determined by reference to public international law, rather than territorially. This article advances a universal norm of legal capacity to sue for violations of human rights, which is derived from the recent developments in human rights law. In the evolution of children’s rights we are presently witnessing the movement from status to agency.
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Mnookin and Burt, supra note 4, at 10.
Arthur L. Corbin, ‘Jural Relations and Their Classification’, Yale Law Journal (1921) pp. 226–238, at 237.
Cotterrell, supra note 17, 123–124.
See Sir Carleton Allen, ‘Status and Capacity’, Law Quarterly Review 46 (1930) pp. 277–310, at 290–291 for a useful summary: Rechtsfähigkeit is ‘an absolutely essential characteristic of personality and can never be divorced from it’; Handlungsfähigkeit is ‘an important characteristic of personality but not absolutely indispensable … a newly born baby … has full Rechtsfähigkeit: it is no whit the less a person in law because it lacks, in its own person, Handlungsfähigkeit’.
Cane and Conaghan, supra note 19, “Person”.
Cane and Conaghan, supra note 19, ‘Corporate personality’.
Tur, supra note 31, at 121.
Cane and Conaghan, supra note 19, Herbert Smith, at 63.
Tur, supra note 31, at 128.
Cane and Conaghan, supra note 19, “Child”.
Rutledge, supra note 18, at 366–367.
Brewer, supra note 44, at 288.
Brewer, supra note 45.
Brewer, supra note 44, at 311.
Tur, supra note 31, at 122.
Cane and Conaghan, supra note 19, Smith, p. 70.
Cotterrell, supra note 17, at 226.
Rutledge, supra note 18, at 345.
Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas, 5th ed. (London: J. Murray, 1874) pp. 163–164.
Cotterell, supra note 17, at 119.
Jeremy Waldron, ‘Does ‘Equal Moral Status’ Add Anything to Right Reason?’, New York University School of Law, Public Law Research Paper 11.52 (2011) at 12.
Allen, supra note 27, at 292.
Allen, supra note 27.
Waldron, supra note 64, at 5.
Allen, supra note 27, at 288.
Allen, supra note 27, at 281.
Minow, supra note 12, at 124.
Maine, supra note 60, at 165.
Fagundes, supra note 37, at 1767.
Minow, supra note 12, at 124.
Graveson, supra note 63, at 271–272.
Fagundes, supra note 37, at 1766.
Minow, supra note 12, at 130.
Waldron, supra note 64, at 11.
See Federle, supra note 12, at 1028 arguing that “To hear children’s voices requires us to look beyond our status-based relationships and to cast aside the power that we have. We need to acknowledge that rights have value because of their power to eliminate hierarchy and exclusion, but as long as capacity plays a role in defining rights, we minimize value. Reconceiving rights means reconceiving our sameness; this we can accomplish only if we case capacity aside as an organizing principle in our rights discourse. The question then turns on whether we can speak of individual rights without some reference to capacity. It may simply be impossible to construct rights without this context, for rights may not have the force to challenge hierarchy … It is not entirely clear that such change is possible within our legal tradition although the implicit value of rights mandates that we must try’.
Allen, supra note 27, at 286. Emphasis mine.
Waldron, supra note 64, at 8–9.
Waldron, supra note 64, at 17.
Burke, supra note 99, at 102.
Trindade, supra note 98, at 7.
Trindade, supra note 98, at 15.
Siebers, supra note 113; Gerard Quinn, ‘ Personhood & Legal Capacity Perspectives on the Paradigm Shift of Article 12 Crpd’, hpod Conference, Harvard Law School, 20 February 2010.
Quinn, supra note 116, at 3.
Quinn, supra note 116; Quinn and Arstein-Kerslake, ibid.
Smolin, supra note 11.
Allen, supra note 27, at 293, 294.
Cotterell, supra note 17, at 305.
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Using ideology as heuristic, a legal sociological approach is employed to critically evaluate a child’s legal status and its evolution since the eighteenth century. Four principal phases are identified: (1) legal ideology of individualism in the common law tradition; (2) movement from status to contract; (3) movement from status to rights; and (4) movement from status to agency. To strengthen legal agency both status and capacity are addressed. In the fourth phase, legal status has evolved in ways capable of facilitating children’s legal agency; it has evolved from being static to being dynamic, and is now determined by reference to public international law, rather than territorially. This article advances a universal norm of legal capacity to sue for violations of human rights, which is derived from the recent developments in human rights law. In the evolution of children’s rights we are presently witnessing the movement from status to agency.
All Time | Past 365 days | Past 30 Days | |
---|---|---|---|
Abstract Views | 308 | 58 | 12 |
Full Text Views | 246 | 7 | 1 |
PDF Views & Downloads | 114 | 12 | 3 |