Child Rights and the Movement from Status to Agency: Human Rights and the Removal of the Legal...

© koninklijke brill nv, leiden, 2015 | doi 10.1163/15718107-08402003

nordic journal of international law 84 (2015) 183-220

brill.com/nord

NORDICJOURNAL

OFINTERNATIONAL

LAW

1 E-mail: [email protected].

Child Rights and the Movement from Status to Agency: Human Rights and the Removal of the Legal Disabilities of Vulnerability

Sevda ClarkDoctoral Research Fellow, Norwegian Centre for Human Rights, Faculty of Law, University of Oslo, Oslo, Norway

Abstract

Using ideology as heuristic, a legal sociological approach is employed to critically eval-uate 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 capac-ity are addressed. In the fourth phase, legal status has evolved in ways capable of facili-tating 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.

Keywords

legal agency – child rights – international human rights – individual complaints – liberal legal ideology – legal sociology – Third Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure – Convention on the Rights of Persons with Disabilities

184 Clark


2 Concurring Opinion of Antonio A. Cancado Trindade, Advisory Opinion No. 17 Juridical Status and Human Rights of the Child. (Ser. A) Inter-American Court of Human Rights 2002 at [5].

3 Brown v. Board of Education. 347 us 483, Supreme Court 1954.4 Robert H. Mnookin and Robert Burt, In the Interest of Children: Advocacy, Law Reform, and

Public Policy (Program on Negotiation at Harvard Law School, 1996) at 9.5 Ibid., at 10.6 Annette Ruth Appell, ‘The Pre-Political Child of Child-Centered Jurisprudence’, 46 Houston

Law Review (2009) pp. 714, 710.

…It is at the beginning and the end of the existential time that one experi-ences greater vulnerability, in face of the proximity of the unknown (birth and early infancy, old age and death). Every social milieu ought, thus, to be attentive to the human condition.2

∵

1 Introduction

The echoes of the landmark United States Supreme Court case of Brown v. Board of Education (1954),3 now acknowledged as one of the greatest Supreme Court decisions of the 20th century, resound still, in the hallways of justice for the marginalised. State laws establishing separate public schools for black and white children were unanimously declared to be unconstitutional – it was a victory for children’s rights. Yet, when the battle was fought, and the dust had settled, the children for whom the action was brought were only fortuitously and tangentially involved; the National Association for the Advancement of Colored People was the plaintiff, “Oliver Brown was only a willing participant, and Linda Brown was never told about the battle fought on her behalf”.4 Children’s rights are powerful leverage in the battle for rights: the “fact remains that the civil rights movement used a children’s case – not a voting case or a case involving housing – to dismantle segregation”.5 Yet children themselves were, and continue to be, denied the right to legal agency for violations of their fundamental, human rights.

Childhood in America, and the Western world more generally, is still largely a “dependent, inchoate, pre-capacitated, and largely private site that serves to distinguish between competents and incompetents” and “as a matter of legal construction, [children] are passive, dependent, private, and incompetent”.6 Vulnerability and incapacity have been the bedrock of the Western (liberal)

185Child Rights And The Movement From Status To Agency


legal conception of children and people with intellectual disabilities. Together, these two concepts have led to various disabilities at law for both statuses of people, not least operating as a blanket denial of legal agency as I define as hav-ing both legal personality and the legal capacity to sue or be sued. In the Western legal tradition, children have been incapable of initiating legal pro-ceedings except when an adult representative initiates on their behalf. This article advocates the importance of a child’s legal agency, understood as the capacity to sue in one’s own name.

Using the heuristic of ideology, I employ a legal sociological approach to critically evaluate a child’s legal status and how it has changed since the eigh-teenth century. Four principal phases of evolution are identified: (1) ideology of individualism as manifested in the common law legal tradition; (2) the movement from status to contract; (3) the movement from status to rights; and (4) the movement from status to agency, which will be the main focus of this article. To strengthen legal agency, the attack is two-fold: both status and capacity must be tackled.

In the first instance, the status of status divisions are explored in light of their historical and legal contexts. In the movement from status to agency, legal status has evolved in ways that are eminently capable of facilitating the legal agency of children. Status has evolved from being static – fixed and determined with reference to the ideology of individualism – to being dynamic, where it is used as a “justificatory principle” to validate policy choices with regard to the differential treatment afforded to different status groups. Further, status can now be seen to be determined by reference to public international law, as opposed to being determined territorially.

Secondly, there now exists a universal norm of legal capacity to sue for alleged violations of human rights which transcends national jurisprudential land-scapes. This universal norm is derived from the recent developments in interna-tional human rights law, most notably the Convention on the Rights of Persons with Disabilities (crpd) and the third Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (op3-crc). Thus, in the evolution of children’s rights, I argue that we are presently witnessing the movement from status to agency and I show that the legal capacities of the child subject are, by implication, broadened to constitute legal capacity to sue for violations of human rights.

The scope of the argument is necessarily limited to children’s human rights in relation to the state and the possibility of seeking redress for systematic denial of children’s human rights. Thus, I am not concerned with broadening children’s legal capacity in other areas, such as self-determination or the right to vote. It is submitted that given the limitations of legal change, the reflection of this norm at the domestic level will not be realised until the legal ideologies

186 Clark


7 Mnookin and Burt, supra note 4, at 10.8 Stuart N. Hart, ‘From Property to Person Status: Historical Perspective on Children’s

Rights’, 46(1) American Psychologist (1991) pp. 53–59, at 57.9 Ibid., at 57.10 Terry Eagleton, Ideology: An Introduction, vol. 9 (Cambridge Univ. Press, Cambridge, 1991)

at 1.11 David M. Smolin, ‘A Tale of Two Treaties: Furthering Social Justice through the Redemptive

Myths of Childhood’, 17 Emory Int’l L. Rev. (2003) p. 967, at 971.

underpinning denial of legal standing to children are unearthed, challenged and shown to be wanting.

Linda Brown and the other children from the pioneering case Brown v. Board of Education, were part of the “unconsenting footsoldiers sent off to war by judges and parents fighting to save this nation’s soul”.7 This article is a mod-est attempt at standing on the shoulders of such giants.

1.1 MethodologyThe historical progression of child rights has been characterised as the move of children “from property to person status:” that “during the last few hundred years, children have progressed through property and potential person status, with protection and nurturance rights, to partial person status, with some self-determination rights”.8 One commentator has argued that two factors are needed “to validate their person status:” the self-determination of children, and a positive ideology, which may be “the essential missing ingredient necessary to the children’s rights movement”.9 This article pursues the influence of ideology on the Western legal tradition, as a way to comprehend the influence of liberal legal ideology on the disablement of children’s legal rights. As argued by Eagleton, “The word ‘ideology’, one might say, is a text, woven of a whole tissue of different conceptual strands; it is traced through by divergent histories”.10 It is a complex amalgam of, sometimes contradictory, patterns of thinking:

Law, while ostensibly rational, is sometimes driven by deep, irrational structures of thought. We can label these larger structures of thoughts as myths, archetypes, or ideologies. These structures are “irrational” in the sense that they are not generally subject to rational evaluation. Rather, these structures form the goals and purposes against which society judges the success of its laws. These structures are sometimes also irrational in the sense of being self-contradictory.11

A legal sociological approach is thus adopted in order to scrutinise the legal disabilities of children from without the legal tradition. It is suggested that by



12 See Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Cornell University Press, 1991), for an overview of status distinctions; and for the differ-ent philosophical traditions and the centrality of the capacity principle to each, see Katherine Hunt Federle, ‘Looking Ahead: An Empowerment Perspective on the Rights of Children’’, 68Temple L. Rev. (1995) p. 1585.

13 Arthur L. Corbin, ‘Jural Relations and Their Classification’, Yale Law Journal (1921) pp. 226–238, at 237.

14 Ibid., at 237–238.

shedding light upon the ideological influences on such laws, creative solutions for strengthening children’s legal rights will be manifested.

Status and capacity, it is argued, frame the legal ideological discourses which have direct legal consequences for children. The role that status and capacity plays in organising our discourse and laws around children has been addressed in existing scholarship.12 The methodology of this article is to be distinguished from existing scholarship in that the deprivation of legal capacity for children is attributed not merely to the philosophical bases of rights theories in the Western legal canon; the legal ideology of individualism operates more judi-ciously in its conception of a totalising ideal of the legal subject. Status and capacity are ideologically determined within the law, as enabling and dis-abling: “It seems to some of us that society not only commands, but also per-mits and enables, and disables”.13

In all our discussions of legal analysis, in all our attempts at defining terms or at coining them, we should never cease to bear in mind and give warning that mere legal analysis does not by itself enable us to tell what the law is in a single case … Rules of law are not constructed by mere analysis and mere logic. As a basis for such construction the judges may appeal to “natural justice” or some similar abstraction, to public policy, to “eternal” justice, to the “right” as opposed to wrong, to the set-tled convictions of the community, to business and social custom, to the mores of the time … and in many important fields the living law will continue to be inconsistent and uncertain. The jurist must therefore be educated in legal history, in anthropology, in economics and social science.14

It is for this reason that the laws of the child, which exclude her from full legal personality, are illustrations of legal constructions that perfectly conform to unstated, but strongly influential, norms within the legal system. Writing in 1908 about the law in relation to the child, an American jurist comments that:

188 Clark


15 Lewis Hochheimer, ‘The Law in Its Relation to the Child’, 67 Cent. L.J. (1908) p. 395.16 Ibid., at 396.17 Roger Cotterrell, The Sociology of Law: An Introduction, 2nd ed. (London: Butterworths,

1992) at 226.

In everything that relates to the condition of infancy, or nonage, the com-mon law affords a rare instance of complete harmony between legal doc-trine and moral conceptions of right and justice. In no other class of cases is the determination so clearly referable to plain and fundamental principles…15 (emphasis mine)

These “plain and fundamental principles” appear as common sense, rightly intuited by the judge and the legislator in decisions regarding children, instead of leaving them “cast upon a sea of doubt, without chart or compass”:

At the foundation of the whole law in this regard lies the common law con-ception of the legal status of the child … The doctrine of the common law is, that from the very moment of birth, a child becomes a citizen, or subject, of the government … In the case of adults or of persons who have attained the full age of legal capacity, the exercise of this is of comparatively limited scope … In the case of infants, or persons under the natural and legal dis-ability of nonage, the government exercises functions of guardianship and superintendence flowing from its general power and duty as parens patriae, or sovereign guardian.16

This quality of bearing the quality of common sense is one, among others, of the definitions of legal ideology that are employed in this article.

Among the characteristics of ideological thought are the following: first, that it appears ‘common sense’, obvious and natural, hence not requiring specific justification, but providing a general structure of perceptions and beliefs in relation to which experience is interpreted; secondly, that this structure of perceptions and beliefs tends to assert its own complete-ness, timelessness and self-sufficiency, rather than to recognise the per-manently provisional character of knowledge as in scientific method; and thirdly, that the claim to completeness and self-sufficiency (which can be considered an understandable search for certainty in an uncertain world) is maintained by emotional commitments which may ultimately justify selective consideration of empirical evidence or the ignoring of inconsistencies in interpretations of experience.17



18 Wiley B. Rutledge, ‘Legal Personality–Legislative or Judicial Prerogative’, 14 Louis L. Rev. (1928) p. 344.

19 Peter Cane and Joanne Conaghan (eds.), The New Oxford Companion to Law (Oxford: Oxford University Press, 2008).

20 John Dewey, ‘The Historic Background of Corporate Legal Personality’, 35(6) The Yale Law Journal (1926) 655–673, at 655.

21 Ibid., at 657.

An appreciation of the pervasiveness of the legal ideologies underlying the legal disabilities of children will, as I hope to demonstrate, offer new insights into the extension of the legal agency of children. It is submitted that the ide-ologies are not of themselves problematic; merely that their density obscures other ways of legal thinking with regard to the legal personality of children. Perceived as such, human rights can offer an alternative legal ideology to but-tress children’s legal agency.

2 Legal Ideology of Individualism: The Incapacities of Infancy

2.1 Legal Agency: Legal Personality + Legal CapacityLegal personality is, wrote a commentator in 1928, “one of the perennial prob-lems of the science of jurisprudence” and as a concept “it is implicit (though often not consciously considered) in every legal situation”.18 Given that the “concept of the person has played a critical role as gatekeeper, both permitting and excluding people from the legal community”19 it is central to discussions on the legal rights of children. As noted in a leading article by American phi-losopher and psychologist John Dewey, “discussions and theories which have influenced legal practice have, with respect to the concept of ‘person’, intro-duced and depended upon a mass of non-legal considerations: considerations popular, historical, political, moral, philosophical, metaphysical and, in con-nection with the latter, theological”.20 To this list might be added ideological, conceded by Dewey himself, that law “has grown by taking unto itself from psychology or philosophy or what not extraneous dogmas and ideas”.21 The question of who counts for the purposes of law is ideologically imbued. As pointed out by legal sociologist Roger Cotterrell, the concept of the legal per-son or legal subject “defines who or what the law will recognise as being capa-ble of having rights and duties … this concept is the foundation, in a sense, of all legal ideology. It allows legal doctrine to spin intricate webs of interpreta-tion of social relations, since the law defines persons in ways that empower or disable, distinguish and classify individuals for its special regulatory purposes”

190 Clark


and “children, slaves, mentally disordered individuals, prisoners or married women may be partially, or wholly, invisible to the law in particular societies and eras; not recognised as persons at all, or treated as possessing only limited legal capacities to contract, to own property, or to bring legal actions”.22

Legal personality has operated historically to exclude children from the cat-egory of ‘person’ for legal and social purposes. The United States Supreme Court held in the nineteenth century that a corporation was guaranteed due process rights as a “person” per the Fourteenth Amendment of the United States Constitution,23 though it was only since the landmark decisions of the said Court in Powell v. Alabama (1932),24 Re: Gault (1967)25 and Tinker v. Des Moines Independent School District (1969)26 that children have been consid-ered ‘persons’ entitled to protection of constitutional rights.

Whereas, economic considerations “have determined that whatever doctri-nal problems may have existed in different Western societies they have had to be resolved as best as they might to recognise and facilitate the needs of” the former, the ideology of legal personhood has continued to operate as an obsta-cle to the full legal personality of children. Legal personality can be understood as the right to be a bearer of rights, and legal capacity as the right to act upon those rights – to seek remedies for breaches of those rights before a judicial body. The distinction between legal personality and capacity can usefully be comprehended through the German terms Rechtsfähigkeit, the passive capac-ity for the enjoyment of rights, and Handlungsfähigkeit, the active capacity for the exercise of rights. In this analysis, legal personality corresponds with Rechtsfähigkeit, while legal capacity with Handlungsfähigkeit.27 Thus, legal personality is to be distinguished from legal capacity to sue. To have legal agency, one must have both legal personality, and the capacity to sue. For illustrative purposes, the legal agent, with personality can be distinguished from the economic agent, where: “The economic agent is characterized by her

22 Cotterrell, supra note 17, 123–124.23 Fifth Amendment due process was first applied to corporations in 1893 by the Supreme

Court in Noble v. Union River Logging R. Co. 147 us 165. Supreme Court 1893.24 Powell v. Alabama. 287 us 45. Supreme Court 1932.25 In Re Gault, 387 us 1. Supreme Court 1967.26 Tinker v. Des Moines Independent Community School Dist. 393 us 503. Supreme Court 1969.27 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’.



28 Lewis A. Kornhauser and W. Bentley MacLeod, Contracts between Legal Persons (National Bureau of Economic Research, 2010) p. 3.

29 Cane and Conaghan, supra note 19, “Person”.30 Ibid., ‘Corporate personality’. The nature and implications of full legal personality.31 Richard Tur, ‘The “Person” in Law’, in Arthur R Peacocke and Grant R Gillett (eds.), Persons

and Personality: A Contemporary Inquiry (Oxford: Basil Blackwell, 1987) 122.32 Cane and Conaghan, supra note 19, ‘Corporate personality’.

preferences; the legal agent is characterized by her legal capacities to hold and convey property, to make contracts, and to sue and be sued”.28

Hence, the legal agent has both legal personality and legal capacity. This agency is central to discussions about children’s rights, as, though children are bearers of legal personality, it is partial as opposed to full legal personality. Therefore, children are not legal agents: “children and the intellectually dis-abled are both types of legal person, in that they are able to bear rights, but they are usually not competent to enter into legal relations, such as contracts, personally, on their own behalf”.29

Legal personality is a legal fiction, whereby legal subjectivity is legislatively granted to either any human or artificial entity. As such, legal personality is independent of any anthropomorphism. This is demonstrated most notori-ously by corporate legal personality, where the corporation is a legal ‘person’ independent of its members, which results in the company being able to sue and to be sued in its own name. Though

human beings are generally legal persons – that is they are subject to and have rights within the legal system in which they find themselves … it is often assumed that people have a full range of rights and obligations within a legal system simply by virtue of being human. This is however incorrect; children for example, while they are human beings, are commonly excluded from having full legal personality until they cease being children (emphasis mine.)30

The fullness of legal personality is correlated with legal agency in that the thicker the bundle of rights which make up the legal person, the more likely that it is constitutive of legal agency. For children, full legal personality would grant children legal agency: the capacity to sue on their own behalf in all mat-ters which affect them. Hence, legal personality is a matter of degree.31

A related aspect of legal personality is that it is conferred by the state: “In essence humanity is a state of nature and legal personality is an artificial con-struct which may or may not be conferred by the state”.32

192 Clark


33 Tur, supra note 31, at 121.34 Cane and Conaghan, supra note 19, Herbert Smith, at 63.35 Ibid., 69.36 Tur, supra note 31, at 128.37 David Fagundes, ‘Note, What We Talk About When We Talk About Persons: The Language

of a Legal Fiction’, 114(6) Harvard Law Review (2001), at 1747.

If legal personality is the legal capacity to bear rights and duties, then it is itself an artificial creation of the law, and anything or anyone can be a legal person. It all depends on the particular, concrete rules of particular legal systems. The first thing a jurisprudence student coming to analyses of legal concepts is told with respect to legal personality is that the philo-sophical notion of a person an actual, or perhaps potential, rational indi-vidual is to be utterly disregarded, since it can only be misleading. For the law of any jurisdiction you care to choose will have a myriad of specific rules such that the concept of legal personality stands in no comfortable one-to-one relationship with anything remotely approaching rational individual human beings, either actual or potential.33

The artificiality of the conferral of legal personality is apparent in the judi-cial treatment of personality, with the tension between personhood as being equated with humanity (biological conception of personhood as reflected in debates about abortion and feticide) as opposed to personhood being extended to non-human corporate entities, whether “any particular bodies shall or shall not be granted the attributes of juristic persons is a matter upon which each system of law is at perfect liberty to make – and does make – its arbitrary choice in every case”.34 The recognition of legal personality is “a sub-ject which our law treats in a purely arbitrary manner, and further, the quan-tum of such personality is again a matter within the arbitrary discretion of the law”.35 This leads to the view that legal personality is “more a conclusion than a premiss”,36 which is argued by another commentator as directly con-tributing to the “theoretical unmooring and doctrinal disarray” of the law of persons, with the absence of theoretically unified judicial approach to legal personality:37

Although the literature of legal theory abounds with attempts to make sense of what it means to be a person, judicial opinions relating to legal personality have incorporated few, if any, of these ideas. Judges not only fail to invoke philosophical support for their ideas of personality, but also inconsistently apply jurisprudential theory in resolving problems of legal



personhood, approaching it more as a legal conclusion than as an open question.38

2.2 Capacity: The Empire of ReasonAs we have briefly seen, it is the lack of legal capacity which is disabling of legal agency for children, where legal agency is the thicker bundle of legal personal-ity, which includes the capacity to sue. By capacity here, is meant the active capacity for exercise of rights, Handlungsfähigkeit, as stated above. The view of the child in the Western legal tradition is neatly summed up in the New Oxford Companion to Law: “Obviously a child is a legal person in law and the bearer of (some) rights, but he or she also labours under some legal disabilities”.39 In the common law tradition, this view of the disabilities of childhood dates back to the early codifiers of the common law, specifically, Sir William Blackstone who describes the legal disabilities of “infancy” or childhood (synonymous in the text):

Infants have various privileges, and various disabilities: But their very dis-abilities are privileges; in order to secure them from hurting themselves by their own improvident acts. An infant cannot be sued but under the protection, and joining the name, of his guardian. But he can sue either by his guardian, or prochain amy, his next friend who is not his guardian.40

Children are subject to the disabilities of infancy due to their vulnerability, where their very vulnerability is invoked as a justification for their difference in treatment. The link is forged between their inability to contract and their vul-nerabilities: “It is, father, generally true, that an infant under twenty one, can make no deed but what is afterwards voidable … an infant can make no other contract that will bind him”.41 And, to this crucible of the legal representation of infancy is added the defects of judgment:

The legal power of a father (for a mother, as such, is entitled to no power, but only to reverence and respect) the power of a father, I say, over the persons of his children ceases at the age of twenty one: For they are then

38 Ibid.39 Cane and Conaghan, supra note 19, “Child”.40 Sir William Blackstone, Commentaries on the Laws of England in Four Books. By Sir William

Blackstone, Knt. One of the Late Justices of His Britannick Majesty’s Court of Common Pleas. In Four Volumes, Volume 1 (1790), at 464.

41 Ibid., at 466.

194 Clark


enfranchised by arriving at years of discretion, or that point which the law has established (as some must necessarily be established) when the empire of the father, or other guardian, gives place to the empire of reason.42

Perhaps it is not surprising that the rights of children as vulnerable, defective of reason, and unable to contract are dominated by the “Blackstonian philoso-phy of juristic persons”. Writing in 1928 of the influence of Sir William Blackstone on modern American legal thought, a commentator refers to the power of his Commentaries as the “juristic Bible” of the Courts, whose influ-ence could “not be other than powerful now”.43

However, childhood vulnerability and incapacities – perceived as eternal and immutable – have not always been such, but rather they were a creation of the eighteenth century through common law justifications,44 including, espe-cially Sir William Blackstone, who was one of “the most important of the com-mon law reformers, not only because they tried to shape the law, but because their authority was so great that they largely succeeded”.45 Holly Brewer argues that, “Parents’ custodial authority was weak in early-modern Anglo-America, far weaker than it would be by the late eighteenth century”, and that “Childhood per se entailed few legal restrictions”.46

As a concept, custody in the modern sense of parental authority and responsibility simply did not exist, partly because the idea was not needed in a world where children could enter their own binding con-tracts and possessed a legal identity no different from that of adults. Children … could form many kinds of contracts.

The influence of Blackstone’s codification on children’s legal status was marked:

By the late eighteenth century, however, fathers’ legal authority over their own children was in most cases stronger than lords’ or masters’.

42 Ibid., at 453.43 Rutledge, supra note 18, at 366–367.44 Holly Brewer, ‘The Transformation of Domestic Law’, in Michael Grossberg and

Christopher Tomlins (eds.), The Cambridge History of Law in America, Vol. 1 (Cambridge University Press, Cambridge, 2008) pp. 288–323.

45 Holly Brewer, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (unc Press Books, 2005) at 174

46 Brewer, supra note 44, at 288.



47 Brewer, supra note 45.48 Ibid., at 34249 Brewer, supra note 44, at 311.

Blackstone’s treatise fits much better with our preconceptions about what the common law of custody was – because he framed that law … [S]tatus … was embedded into the law … The struggle over the legal sta-tus of children thus was more than a struggle over simple custody. It was a struggle over the basis of power itself.47

And this creation of the dependencies of childhood legitimised both the rule over those seen to be incapable of reason and consent, and liberal ideology itself:

The American Revolution applied an ax to ideas of inherited authority and the rights of blood and lineage. At the same time it helped to consoli-date newer justifications of parental authority, which gave fathers, in particular, much more legal authority over children under twenty-one. Children became subjects incapable of consent, because they did not have reason… The new principle that consent must be “informed” and reasonable, which led to the exclusion of children, was part of what made democratic political ideology viable, acceptable, and above all, legitimate.48

Legal ideology – in its individualism centred upon the able-to-consent, ratio-nal adult – was thus a key driver in the creation of the status of childhood, where children have since been perceived by law vulnerable subjects without legal personality or capacity. As established by Brewer, “by the end of the eigh-teenth century and the beginning of the nineteenth, Anglo-American domes-tic law had begun to take coherent form” and “Blackstone was key to this transition”.49 Ideology is perceived as common sense, and liberal legal ideolo-gies are cloaked in the assumption of a state’s responsibility for children – a legal doctrine that dates back to well after Blackstone’s Commentaries:

That a state should assume some responsibility for the well-being of its children seems obvious enough … A longstanding influential doctrine holds the state, in succession to the monarch, to be parens patriae, ‘par-ent of the nation’, and thus responsible for the upbringing of its youth. However, the first legislation in Britain and America specifically and

196 Clark


deliberately directed at protection children’s welfare rights dates only from the end of the nineteenth century.50

The power of liberal legal ideology and its representation of the vulnerabilities of children as the grounds for the incapacities of children is even the more conspicuous when considered in light of another characteristic of legal capac-ity: it is not dependent on physical capacity. Under Roman law, and common law traditions, for example, women’s marital status determined their legal sta-tus: though physically able, married women were deprived of legal personality, and could not own property, collect rents, manage shops, and have standing in court; in short they were civilly dead.51 In his search for common features of all legal persons in English law, Richard Tur quite rightly concludes from the history of legal systems that the capacity for physical action cannot be said to stand in one-to-one relationship with legal personality: “Outlaws, slaves, those regarded as civilly dead, and therefore in some sense beyond the law, are clear examples of beings with the capacity for action but without legal personality”.52

Like legal personality, legal capacity – and its extent – is at the discretion of the legislature to accord:

it would then seem to lie entirely within the discretion of the Legislature to say how far the legal capacity even of natural persons shall extend. In determining the actual rules the Legislature will of course be guided by considerations of policy, and these considerations will inevitably be modified by a number of causes quite unconnected with the logical development and application of purely legal principles.53

This is strikingly apparent in the question of a child’s legal capacity, where “the law of children has developed in a patchwork and inconsistent fashion”, where some areas of the law, such as contract and voting view children as ‘infants’ who do not have the capacity to act, and others “presume capacity in all instances or disregard the question of capacity altogether”.54 Larry Cunningham demon-strates that the “law is inconsistent not only in how it treats children, but also

50 David Archard, Children: Rights and Childhood (Routledge, 2004) at 154–155.51 Claudia Zaher, ‘When a Woman’s Marital Status Determined Her Legal Status: A Research

Guide on the Common Law Doctrine of Coverture’, 94 Law Library Journal (2002) p. 459.52 Tur, supra note 31, at 122.53 Cane and Conaghan, supra note 19, Smith, p. 70.54 Larry Cunningham, ‘A Question of Capacity: Towards a Comprehensive and Consistent

Vision of Children and Their Status under Law’, 10 uc Davis J. Juv. L. & Pol’y (2006) p. 275, at 277.



55 Ibid., at 367.56 Donald L Beschle, ‘Juvenile Justice Counterrevolution: Responding to Cognitive

Dissonance in the Law’s View of the Decision-Making Capacity of Minors’, 48 Emory lj (1999) p. 65. as quoted in Cunningham, ibid., at 366.

57 Cotterrell, supra note 17, at 226.58 Ibid.

how it has decided to treat children in different legal contexts” through deci-sion-makers’ “erratic” use of the notion of capacity: “Decision makers have been imposing their own, subjective, untested assumptions about children to the areas over which they have had jurisdiction”.55 Further, as some have suggested with respect to children’s legal capacity, policy considerations “may override our desire to see a scientific, rational, and logical system of laws”;56 we are, again, directed to extra-legal sources in our quest for capacity determinations, and legal ideology renews its vigour with the turn from status to contract.

3 Ideology of Individualism: From Status to Contract

As we have seen, policy considerations with respect to children’s legal agency – their legal personality and the extent of their legal capacities – which make their way into the courts and legislation, do not operate in a vacuum. They are informed by ideas deeply imbued in the legal system:

Of course, legal doctrine is not timeless but created in contemporary Western societies by definite legislative and judicial acts. Yet basic values and concepts of legal doctrine – symbols of government’, in Thurman Arnolds’s (1935) phrase, and symbols of the fundamental characteristics of the society – are proclaimed continually by the courts and invoked in interpretation or application of legislation.57

Legal ideologies of individualism continue, in the second phase of the move from status to agency – that of status to contract – to permeate the legal rights of chil-dren. They do so through a chief characteristic of ideological thought in its “claim to completeness and self-sufficiency (which can be considered an understand-able search for certainty in an uncertain world) is maintained by emotional com-mitments which may ultimately justify selective consideration of empirical evidence or the ignoring of inconsistencies in interpretations of experience”.58 Legal personality – who is seen as a person in the eyes of the law – remains at the core of the ideology of legal individualism, and also “reaches out into so-called

198 Clark


non-legal fields and grips the interest of the economist, the philosopher, the stu-dent of politics, the sociologist and the historian. Evidently the last word has not been said upon the subject”.59 In Sir Henry Maine’s characterisation of society’s progression from status to contract in 1861, we have a fundamental strand of what is one of the most pervasive legal ideologies of the Western liberal legal tradition – the individual: rational, autonomous, and with the capacity to contract:

Starting, as from one terminus of history, from a condition of society in which all the relations of Persons are summed up in the relations of Family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of Individuals. In Western Europe the progress achieved in this direction has been considerable … The apparent exceptions are exceptions of that stamp which illustrate the rule. The child before years of discretion, the orphan under guardianship, the adjudged lunatic, have all their capacities and incapacities regulated by the Law of Persons. But why? … The great majority of Jurists are constant to the principle that the classes of persons just mentioned are subject to extrinsic control on the single ground that they do not possess the faculty of forming a judgment on their own interests; in other words, that they are want-ing in the first essential of an engagement by Contract.60

emphasis mine

The freely-contracting individual thus serves as the definitive legal subject of the Western legal tradition: “It is the individualism of Western law and society which has appeared as its hallmark” and legal individualism serves as “a major example of legal ideology; of one vital current of ideology which has been developed in and through Western legal doctrine in complex and pervasive ways”, an idea, which “is expressed in the jurist Sir Henry Maine’s celebrated late nineteenth-century the-sis”.61 The foundational texts of the common law tradition, Sir Blackstone’s Commentaries of 1766 begin by proclaiming the individual and situating him as the prime subject of legal rights: the First Book, on the Rights of Persons begins unequivocally with the “absolute rights of individuals”. Individualism in Western societies “is a complex amalgam of various ideological components … that law has had a major part to play in developing these ideological conditions and is a major form of their expression”,62 and it is beyond the scope of any one article to even

59 Rutledge, supra note 18, at 345.60 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. 163–164.61 Cotterell, supra note 17, at 119.62 Ibid.



63 Ronald Harry Graveson, ‘The Movement from Status to Contract’, 4(4) The Modern Law Review (1941) pp. 261–272, at 270.

64 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.

65 Allen, supra note 27, at 292.66 Ibid.

begin to outline all of its various features comprehensively. Importantly, for the purposes of this argument, as ideology, “individualism suggests an absolute view of social or cultural factors”, and has expressed itself most conspicuously in the idea of contract: the capacities of the contracting individual, and the social con-tract to which this individual is bound. Consequently, we see that the cornerstone of legal capacity is the ability to enter into contractual relationships. The corollary is such that persons lacking such capacity have belonged, historically, and con-tinue to belong to a certain identifiable status, which is determinative of their legal personality and legal agency. It is to status to which I now turn.

3.1.1 Status DefinedA related and essential ingredient in discussions about legal personality and legal agency is status. Laws of status – laws of the person – have been part and parcel of the legal tradition since antiquity. One inevitably speaks of status when one classifies the legal subject. If we are to proceed with a definition of status at common law, Graveson has articulated that a “characteristic feature of true status is its legally imposed condition which cannot be got rid of at the mere will of the parties without the interposition of some agent of the State, administrative, legislative or judicial”.63 Graveson

reminds us that status is of course something determined entirely by legal principle. He says positivistically that there is no such thing as natu-ral status in the eyes of the law: ‘Whatever its bases may be, whether natu-ral disability as in the case of an infant …, or disability legally imposed in the interests of public and social security, as in the case of bankrupts, status is essentially a conception of law, not a question of fact.64

Noticeably, status is at the discretion of the state to determine.Additionally, status is seen a condition which is “if the tautology may be

pardoned, essentially static. There is no question of exercising a status. It is a thing which is, and which continues until it is ended or changed”.65 In contrast, an essential feature of capacity is its dynamism: “it is a power … dynamic in the sense that it affects rights and duties as soon as it is exercised … Capacity is a thing which can”.66

200 Clark


67 Ronald Harry Graveson, Status in the Common Law, vol. 2 (University of London, Athlone Press, London, 1953), at 2, as quoted in Waldron, supra note 64, at 5

68 Allen, supra note 27.69 Waldron, supra note 64, at 5.70 Allen, supra note 27, at 288.71 Ibid., at 289.

In another definition by Graveson, legal status in the common law is stated as being:

a special condition of a continuous and institutional nature, differing from the legal position of the normal person, which is conferred by law… whenever a person occupies a position of which the creation, continu-ance or relinquishment and the incidents thereof are a matter of suffi-cient social concern.67

The origin of this definition has been attributed to Maine’s conception of status

expressed, curtly but suggestively, in one of the most famous legal apho-risms in the English language; and in view of the large issues which it raises, it is surprising that it has not excited more comment from the juridical, as distinct from the historical point of view. The idea which emerges … is that status is a legal condition imposed by law on the indi-vidual independently of his own choice.68

Commenting on Graveson’s definition, eminent legal philosopher Jeremy Waldron underscores that an important feature of status, then, is the element of “social concern”, which demonstrates that status is seen to be essentially a public law idea: “the determination that the legal position of persons … should be determined largely as a matter of law … is a matter of public policy in the broadest sense”.69 This is reflected in an earlier 1930 definition of status as “the condition of belonging to a particular class of persons to whom the law assigns certain peculiar legal capacities or incapacities or both;”70 where by “class” is meant “a class of such a kind that, by an established rule of law, legal consequences result to its members from the mere fact of belonging to it”.71 Consequently, all forms of status appear to involve some general condition of legal capacity or incapacity.

Another important characteristic in this definition of status which can be highlighted here is that status denotes the exception to the “normal person”:



72 This view is important and can be seen as a form of liberal legal ideology as will be dis-cussed below.

73 Allen, supra note 27, at 281.74 As quoted in ibid., at 282 (emphasis mine).75 Ibid., at 282.76 ‘I have never understood why the English writers take this view. Ordinary legal personality

seems to me to satisfy every other aspect of the definition of legal status’. Waldron, supra note 64, at 5.

77 Ibid., at 15.78 Minow, supra note 12, at 124.

it is a “special condition” of deviation from the “norm”. Formulated in this way means that there can no “normal person” status; it would be an oxymoron, and cannot be said to exist.72 This can be traced back to the examination of status by legal theorist and positivist John Austin to whom “belongs the credit of the only sustained attempt in English … to analyse the conception systemati-cally”.73 According to Austin, there is a status “Wherever a set of persons have rights, obligations, etc. peculiar to themselves; or are incapable of such as are common to many others”.74 Thus Austin considers that “the term is improperly applied to a freeman or citizen; or he means by status (‘the only meaning which I can possibly attach to it’), a ‘set of rights and duties, especially regard-ing persons of a given class, which for the sake of a convenient arrangement, it is expedient to detach from the body of the legal system’”.75 Waldron criticises this view that status must be distinct and defined by contrast to ordinary legal personality,76 that is, that it applies to everyone who is not “normal” due to some condition that they find themselves in:

The English jurists thought status was only important to the extent that it represented a recognized deviation from normal legal personality; they did not think the notion of legal status was necessary for the explication of normal legal personality. I said … that I thought they were wrong about this, for the legal case.77

However, this is not the accepted view of legal status, though there is nothing in principle debarring a ‘normal person’ status. Waldron’s critique aside for the moment, in this definition of status, we have, as articulated by Harvard Professor Martha Minow, the “abnormal-persons approach” to legal status;78 a clear reflection of the historical development of the laws of status, before and subsequent to Maine’s celebrated thesis.

202 Clark


79 Ibid., at 126–127.

Thus, to this day, many fields of law divide society into persons who are mentally competent and persons who are not … These “two-tracks” of legal treatment reflect the traditional Western idea that responsibility follows only from voluntary, knowing, and intelligent choice…

Whenever and however the shift from medieval to liberal legal thought occurred, by the late nineteenth century it had produced one track of legal rules for “normal” people and a residual category of legal statuses where the shift had failed to occur … these two tracks built on the ideol-ogy of equal citizenship while justifying exceptions to it. Those accorded special status remained subject to “legal disabilities” and the legal label of incompetence … Children, mentally ill persons, mentally retarded per-sons, and elderly people suffering from what has been called senility all continue to be described as legally incompetent in today’s society. These groups represent the remnants of the “law of persons”, itself a souvenir of a medieval legal order organized around status relationships … Perhaps this strengthening of the separate legal treatment for dependent and “incompetent” persons gave life to the separate track for “abnormal per-sons”. The category of incompetent persons once included married women and sailors and – for some purposes – aliens, persons born out of wedlock, servants, wards, Jews, Quakers, villeins, monks, clergy, excom-municates, lepers, and civil servants. A recent work identifies the old and new status in law of women, children, blacks, illegitimates, tribal Indians, homosexuals, aliens, mental patients, government employees, Asians, military personnel, and prisoners. The development of special statuses that are accorded distinct legal treatment suggests the power of the dichotomy between competent and incompetent persons, even though the particular groups of people assigned to one category or another may change over time.79

Laws of status then, have had as their lifeblood, the deviation from the norm, where capacities and incapacities continue, as Minow suggests, informing the creation and maintenance of new statuses at law.

In the continued exploration of the contours of status, we turn again to Sir Henry Maine’s oft-quoted passages:

All the forms of Status taken notice of in the Law of Persons were derived from, and to some extent are still coloured by, the powers and privileges anciently residing in the Family. If we then empty Status … to signify



80 Maine, supra note 60, at 165.81 Fagundes, supra note 37, at 1767.82 Married women were granted legal personality in the late nineteenth century, with the

common law doctrine of coverture (whereby, upon marriage, a woman’s legal rights and obligations were subsumed by those of her husband, in accordance with the wife’s legal status of feme covert. An unmarried woman, a feme sole, had the right to own property and make contracts in her own name) having been first substantially modified by Married Women’s Property Acts passed in various common-law legal jurisdictions. The process was sluggish, and “the social and legal consequences of the doctrine of coverture were pervasive and have carried over into the present. It has been a long series of slow steps for married women to overcome the presumption of ‘unity’ and ‘civil death.’ Pioneering women lawyers were denied admission to the bar because of their married state, reason-ing that if a married woman could not enter into a contract, a married woman could not enter into an attorney–client relationship’ (Zaher, supra note 51, at 462).

these personal conditions only, and avoid applying the term to such con-ditions as are the immediate or remote result of agreement, we may say that the movement of the progressive societies has hitherto been a move-ment from Status to Contract.80

The progression of society ‘From Status to Contract,’ then, turns upon the change from the ancient world where people were tightly bound by status to ascribed groups, to the modern one, where individuals are viewed as autono-mous agents who are free to make contracts and form associations with whom-ever they choose. Thus, as stated by one commentator, “If regarding this development as entirely egalitarian may overstate the case, one may at least describe it as strongly individualistic – an evolutionary change that rejects sta-tus distinctions including, arguably, personhood as archaic”.81 The meaning of Maine’s famous generalisation – accepted as an axiom of social and legal evolution – “is clear: that the rights and duties, capacities and incapacities of the individual are no longer being fixed by law as a consequence of his belong-ing to a class”. Yet, in ‘emptying’ status of all contractually-produced condi-tions, we are left with the “personal conditions” of the status of the child within the family solidly intact. Thus, though Maine’s thesis holds true to certain classes of adults (married women82 and slaves for example) as the laws of sta-tus have continuously shrunk and legal personality has since been granted to such statuses traditionally not given recognition as legal ‘persons’, these changes were clearly not meant to be universal. Minow lucidly details the his-tory of status divisions and that the changes were not for all, most conspicu-ously excluding children:

204 Clark


83 Minow, supra note 12, at 124.84 Graveson, supra note 63, at 271–272.

Amid these transformations, legal ideas about fixed status and hierarchi-cal relations gave way to newer ideas of individual self-determination and equal justice. But no one claimed that these new ideas would apply to everyone. Certain classes of people and those in certain kinds of rela-tionships would be exceptions: people thought to lack the requisite capacity to reason and others who remained in hierarchical relation-ships because of their economic or social dependency. Thus, the groups excepted from liberal individualism were infants, married women, slaves, servants, apprentices, the very poor and the mentally deficient. The legal rules governing these people retained qualities of the status relationships that had been all but eliminated for others. Over the course of the later Middle Ages and the early modern period the range of status categories diminished, but legal incapacities and regulated relationships of depen-dency still supplied reasons for excepting certain groups from various legal and economic activities. Law continued through the seventeenth, eighteenth, and nineteenth centuries to define the special status of the infant, the married woman and the imbecile.83

Even when jurist Sir Henry Maine put forward his thesis on the movement of societies from status to contract, it expressed little of contemporary reality, and history since 1861 had been argued instead, to be one of regression. As observed by Graveson:

So far as the Common Law is concerned Maine’s celebrated dictum was far from true in 1861 when he published Ancient Law, and it is even less true to-day … The movement of the Common Law to 1861 was away from status … Every indication is of an increasing emphasis on status. Maine believed that the movement from status to contract was characteristic of progressive societies. The further movement from contract to status may characterise a social retrogression or a movement to a plane of legal prog-ress higher than Maine conceived. The history and spirit of the Common Law give every assurance that the second possibility embodies the future of our legal system.84

To assess the veracity of Graveson’s claim, I turn now to the status of status in contemporary law, with a focus on international human rights law.



85 Fagundes, supra note 37, at 1766.86 Ibid.

3.1.2 The Status of Status: Retrogression or Higher Legal Progress?Minority is still treated as an aspect of personal status in many laws, as is the loss of capacity by reason of insanity or other mental illness. Reflecting on sta-tus, Fagundes writes:

In highly individualistic modern American legal culture, status distinc-tions seem to be embarrassing remnants of an illiberal past. However, when courts and legislatures engage problems of legal personhood, they are necessarily interpreting and applying very fundamental notions of status. The law of the person, and especially courts’ ambivalence about it, exposes the uncomfortable but inescapable place of status distinctions in even the most progressive legal systems.85

Fagundes’ argument is a convincing one; to have a law is to have a legal subject. And, as demonstrated by Fagundes’ treatment of the laws regarding slavery and corporate legal personality, legal personhood and the problem of status is more than just a metaphor: it is “law’s repository for expressions of anxiety about powerfully divisive social issues”.86 Nowhere is this more apparent than in the law’s treatment of the legal status of childhood or minority, where the disabilities of vulnerability cannot but, it seems, create a separate status with associated incapacities: in short, it cannot but negate the right to full legal per-sonality for children.

Upon providing an historical overview of status distinctions at law, Minow also expresses scepticism of the existence and indeed, on the creation of new statuses at law:

This look at history thus unearths a striking connection between current conceptions of abnormal persons and remnants or re-creations of a feu-dal hierarchical order. In recent years some new classes or statuses have been created … each new status revives some parts of the old notion of status, especially in assigning difference to a person on the basis of some supposedly inherent trait. Like old status assignments, new ones sometimes trigger special protections and sometimes justify exclu-sions or restrictions. Legal arrangements make it seem legitimate to deploy certain classes or statuses by referring to particular characteristics and designing contrasting rights or obligations on that basis. Have such

206 Clark


proclamations of “differences” hidden prejudices against beleaguered minorities?87

Minow’s question is provocative: is the existence of status distinctions neces-sarily negative? Or more specifically, for our purposes, does the status of child-hood or minority itself necessarily limit the legal agency of children? And the related question: how closely coupled are status and capacity?

The legal ideology of the contracting individual is crystallised in modern legal philosophical thought. In advancing the idea of a single-status moral community, Jeremy Waldron advances the idea of a single-status legal commu-nity. That is, that “there is such a thing as a single normal status …It is not that status has been superseded by contract; it is rather that freedom-of-contract is now the normal or normative status”.88 Although the stated point of Waldron’s article is not to defend the idea of legal status, the recognition of the separate legal statuses based upon condition-status (legal subjects are defined on the basis of the conditions they have undertaken or have fallen into) as opposed to sortal-status (where legal subjects are characterised on the basis of the sort of person they are) is densely permeated with the ideology of liberal individual-ism: “One’s sortal-status defines the baseline from which condition-status might seem a lapse, change, or deviation”.89 Thus, Minow’s “abnormal-persons approach” to legal personhood would seem to be vindicated; that is to say, the contracting individual is the norm, excluding (as in Maine’s formulation) chil-dren, on the assumption of their Blackstonian vulnerability: their incapacity to contract.90

This view of status necessarily cannot but link status to (in)capacity. Specifically, if the ‘norm’ is the contracting individual, then status distinctions are automatically justified as deviation from the ‘normal’ contracting and independent, individual. This is precisely the ground upon which it has been advocated by Hunt Federle that the capacity principle (and by implication sta-tus distinctions) should be made redundant on the road to enhancing the rights of children.91 As I will attempt to demonstrate in the following section,

87 Minow, supra note 12, at 130.88 Waldron, supra note 64, at 11.89 Ibid., at 10.90 See ibid. for the distinctions of condition-status which remain: ‘bankruptcy, alienage,

infancy and maybe marriage, lunacy, and felony’.91 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 mini-mize value. Reconceiving rights means reconceiving our sameness; this we can accom-plish 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’.

92 Allen, supra note 27, at 286. Emphasis mine.93 Ibid.

it is far from clear that casting aside the legal concepts of status and capacity (if at all possible) is necessary in advancing the legal agency of children. Instead, what one can see is that they are morphing to be more flexible in pro-viding stronger rights protections for children and people with disabilities.

There may be hope yet for status distinctions at law. As a cursory glance of any list of current as well as historical statuses demonstrates, while “defect of judgment – or, more generally, natural incapacity of mind or body – is the com-monest cause of peculiar status, the law may attach that quality to a particular class on any ground of policy which social exigencies dictate”.92 That is to say, the modern law of status does not necessarily depend on defect of judgment, as “these considerations do not arise in such cases as social or professional rank, illegitimacy, religious persuasion, nationality, penal status, nor even (necessarily) in servile status. In all these cases there are different grounds of policy … for according special treatment to the individuals comprised within the class”;93 an element which is also reflected in Graveson’s definition above. Prima facie, this would seem to be more promising for children’s legal agency; namely, incapacity to contract cannot, of itself, operate to deny children ‘nor-mal’ or fuller legal personality, which includes the capacity to sue. In this way, the ideology of the contracting individual would be dethroned on the road to enhancing children’s legal agency, in the move from status to agency.

Thus, status is decoupled from capacity, and is more overtly contingent on policy considerations:

All this suggests to me that status is in some ways a dynamic idea in law and skepticism about legal status tends to suggest itself from a purely static point of view. If all the law were given – all the rules, doctrines, principles, etc. – and all of it was settled and known, the notion of status would seem to be redundant … Some people in some circumstances are liable to deportation; others in other circumstances are not. If we know

208 Clark


all that – if indeed we know all such rules – we don’t need to learn any-thing additional about alienage. But the idea of alienage tells us some-thing about the rationale of these provisions; it makes sense of them; it indicates their ground or reasons. And the same is true of all statuses. They work dynamically. Their primary structural presence in the law is justificatory: it works to package certain arrays of rights, duties, etc. under the auspices of a certain entrenched concern in the law.

Two features of Waldron’s assertions are of note for our purposes. Firstly, far from being a static fixture of the law, status can rather be seen as a dynamic principle, used to justify certain policy decisions for the purposes of law. Second, policy is closely coupled with what Waldron terms a “certain entrenched position in the law” – children and people with mental disabilities still fit neatly into Waldron’s classification so conceived. So what does this mean for status distinctions, if we are back to firmly deep-rooted positions as the basis for denoting certain status distinctions? As we have seen, these entrenched positions are themselves ideologically determined. Thus, the dyna-mism of status can facilitate the change of apparently immutable, entrenched positions in the law if the ideological basis for these decisions change – namely, that policy is determined by reference to other persuasive ideologies, such as human rights. This is in line with Waldron’s definition of justificatory principles:

When I talk about the dynamic justificatory role of status … in the law, I don’t mean to associate “justificatory role” with anyone’s particular opinion as to why a given set of legal provisions is or might be justified. I mean something more like legally-established justification – like a legally recognized purpose or policy. I mean something which is not just present in politics to persuade people that the law is good and right, but rather suffuses the law itself with a sense of purpose and operating as an integral part of what it is to grasp and understand the law. Justification in this sense has a more solid and established presence in the law than the arguments anyone might come up with, though of course ultimately it amounts to the legal recognition and currency of such arguments as aspects of the legal system.94

Status distinctions are determined not merely as part of the legislative process of policy making, but are instead justified by that which “suffuses the law itself

94 Waldron, supra note 64, at 8–9.



95 Waldron, supra note 64, at 17.

with a sense of purpose and operating as an integral part of what it is to grasp and understand the law” – in short, legal ideology.

4 From Status to Agency

In his argument for single moral sortal-status, Waldron advances the idea of human rights as manifestations of such a status:

More affirmatively, one can argue along the following lines that there is content to the idea of a single sortal-status. Let me focus on one aspect of what I think is the sortal-status of standard human moral personality. We believe in human rights, which is to say that we believe there is a stan-dard set of rights which pertain to every human person in view of their humanity. These rights form a package, in the sense aleday discussed: they make sense in the light of one another are not easily separable. They are moreover quite demanding. No ordinary person’s standing as a human being is to be taken lightly: it imposes serious duties on other people and on political organizations too. We know that besides basic human rights – which, on my account, are the incidents of normal human sta-tus.95 (sic) (emphasis mine)

Status is thus changed from its classical legal ‘abnormal-persons’ categorisa-tion to become the universal legal subject, at least morally. Though Waldron makes the argument to advance the idea of a single moral sortal-status, the key argument of this section is that we have now a strong basis for making the same claim for legal status. A glimpse of the list of international treaties that codify human rights reveals the endurance of status divisions in our legal tradition and in our discourse of rights. Indeed, it can be said that status divisions have been enshrined in the international human rights instru-ments, from the International Convention on the Elimination of All Forms of Racial Discrimination (1965) (cerd), the Convention on the Elimination of All Forms of Discrimination against Women (1979) (cedaw), the Convention on the Rights of the Child (1989) (crc), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) (icmw), to the Convention on the Rights of Persons with Disabilities (2006) (crpd). We have an extensive and proliferating status-specific list of

210 Clark


treaties being drafted and ratified one after the next, with the latest, an inter-national convention for the elderly, in the early stages of its negotiation.96

Status distinctions, it is fair to argue, are thereby here to stay. How the differ-ent statuses are legally treated is therefore of the essence in delineating the role that these status distinctions play in international human rights law. I argue that there are two ways in which the said status distinctions can be said to have created a new universal norm of legal agency: one procedural and the other substantive. Firstly, with the entry into force of with the op3-crc, the right to individual petition is now universally recognised under all of the core international human rights treaties. Secondly, Article 12 of the crpd, a paradigm shift in legal capacity, has significant implications for the legal capacity of children, whose legal incapacities have hitherto prevented their legal agency.

4.1 The Right of Individual Petition: The ‘Most Luminous Star in the Universe of Human Rights’

In a 1972 Bill of Rights for Children, Foster and Freed include the rights “to be regarded as a person … before the law” (Art. 3) and to be “free of legal disabili-ties or incapacities save where they are convincingly shown to be necessary”,97 articles which did not eventuate as part of the crc. However, the history of the development of the human rights mechanisms illustrates convincingly that there has been an irreversible evolution in international law towards the norm of universal legal capacity to sue for violations of human rights: “The right of individual petition is the juridical mechanism for the emancipation of the human being vis-à-vis his own State in terms of his ability to enforce his rights under the International Law of Human Rights – an emancipation which con-stitutes, in our days, a true juridical revolution, at last giving an ethical content to the norms of both domestic public law and international law”.98

Despite the Human Rights Commission expressly denying itself the power to study any individual petitions in 1947,99 the right of individual petition is woven into the very fabric of the development of the international protection

96 The Open-Ended Working Group on Ageing was established by the United Nations General Assembly 21 December 2010 to consider the feasibility of further instruments and measures). See http://social.un.org/ageing-working-group/.

97 Henry H. Foster and Doris Jonas Freed, ‘A Bill of Rights for Children’, Family Law Quarterly (1972) pp. 343–375, at 347.

98 Antônio Augusto Cançado Trindade, The Access of Individuals to International Justice, vol. 18 (Oxford University Press, Oxford, 2011) at 16.

99 Roland Burke, Decolonization and the Evolution of International Human Rights (University of Pennsylvania Press, Philadelphia, 2011) at 60.

http://social.un.org/ageing-working-group/



100 Ibid., at 61.101 Ibid., at 101.102 Burke, supra note 99, at 102.103 Ibid.

of human rights. As observed by Burke, it “was not at the initiative of a virtuous clique of Western members that decided the fate of individual petition”:100

The unpredictable political dynamics of decolonization allowed the cre-ation of a human rights system that few governments had originally wanted. Western states, always fearful of the potential disadvantage they faced with their open societies, much less their colonies, were hardly enthused by the prospect of individual petitions when they held control of the General Assembly in the 1950s … However, once the prospect of such powers being extended to the Human Rights Commission emerged in the late 1960s, Western delegations had little option but to support the investigation of individual communications and campaign for universal application.101

It is not due to the ideologies – political, legal or otherwise – of the Western representatives which is to be credited with its appearance; instead, the empowerment of beleaguered minorities is at the heart of the existence of the right to the individual complaint mechanism at the international level.

The most stunning paradox in the history of the human rights program was that a un dominated by dictatorships should prove more successful in expanding human rights monitoring than one occupied by a majority of democracies … Perversely, the most impressive achievements of the Afro-Asian bloc in the international sphere occurred when human rights were approaching their nadir in many countries in many of the countries across Asia and Africa.102

The right of individuals to petition the United Nations for violations of their human rights was the direct result of the zealous advocacy of recently decolo-nised emancipated states, “Hence the extraordinary irony of the 1960s, where an alliance of African and Asian dictatorships facilitated the construction of a human rights system that contained unprecedented potential for the future investigation of their own regimes”.103 Thus the link is forged between the pro-cedures through which the individual petition procedures were introduced, and the empowerment of previously marginalised groups.

212 Clark


104 Trindade, supra note 98, at 7.105 Ibid., at 13.106 Advisory Opinion No. 17 Juridical Status and Human Rights of the Child at [70].

4.2 Legal Capacity to Sue as a Universal NormThe individual’s right of petition at the international level is of the utmost sig-nificance in the development of international law, for both legal personality and legal capacity. Justice Antônio Augusto Cançado Trindade has compel-lingly indicated the legacy of the individual’s subjectivity in international law; that “the legal personality of the individual, as subject of both domestic and international law, is of great importance”;104 and “the respect for the individu-al’s personality at international level is instrumentalized by the international right of individual petition”. Indeed, in his Concurring Opinion before the Inter-American Court of Human Rights, he argued for its status as a fundamen-tal clause of human rights treaties: “The right of individual petition shelter, in fact the last hope of those who did not find justice at the national level. I would not refrain myself nor hesitate to add, – allowing myself the metaphor, – that the right of individual petition is undoubtedly the most luminous star in the universe of human rights”.105

Justice Trindade, again in the Advisory Opinion, indicates the direction to which the international legal norms were then advancing:

From the perspective of an international tribunal of human rights like the Inter-American Court, one ought to affirm the human rights of the children … as from their juridical condition of true subjects of law, endowed with international legal capacity. I have always sustained that the International Law of Human Rights will achieve its plenitude the day when it is definitively consolidated the recognition not only of the personality, but also of the international legal capacity of the human person, as subject of inalienable rights, in all and any circumstances. In the jus gentium of our days, the importance of the consolidation of the international legal personality and capacity of the individual, irrespec-tive of his essential time, is much greater than what one may prima facie assume.106 (sic)

Legal personality is thus conferred at the international level, but critically, for our purposes, so is the concomitant legal capacity. By the time of publication of his book directly on this issue in 2011, Justice Trindade was decisive on the issue of the norm of legal capacity, and due to the importance of his claims, I will quote him at length. In the ambit of the international and regional laws



of human rights “endowed with international tribunals – parallel to legal per-sonality, the international procedural capacity (locus standi in judicio) of the individual is also acknowledged today”,107 and indeed “one of the most signifi-cant developments in international human rights law in the last six decades has undoubtedly been the consolidation of the procedural capacity of the indi-vidual as a subject of International Law in the domain of human rights protec-tion”.108 Justice Trindade continues to stress the importance of this point as “the importance of the right of individual petition does not appear to have been sufficiently stressed to date, or not as much as it deserves”,109 a point which he accentuates in no uncertain terms; he states that the right:

[I]s a definitive conquest of the International Law of Human Rights. It was precisely by the exercise of such right of petition that the historical rescue of the position of the human being as a subject of international human rights law, endowed with full international procedural capacity, took place.110

Far from having to extend the right to children by implication, Justice Trindade makes the case for a child’s legal capacity directly, in his Concurring Opinion in the Advisory Opinion of the Inter-American Court on the Juridical Condition and Human Rights of the Child (2002):

In the face of the limitations of the juridical capacity of the child (to exer-cise his rights for himself), a legal representative is recognized to him. But independently of such limitations, the juridical personality of the child … projects itself at international level. As it is not possible to conceive rights – emanated directly from International Law – without the prerogative of vindicating them, the whole evolution of the matter ha oriented itself towards the crystallization of the right of the individual – including the child – to resort directly to the international jurisdictions.111 (sic)

In this way, a child, event though not endowed with juridical capacity in the national legal system at issue, can, nevertheless, make use of the

107 Trindade, supra note 98, at 15.108 Ibid., at 17.109 Ibid.110 Ibid., at 18.111 Advisory Opinion No. 17 Juridical Status and Human Rights of the Child. at [53] and [54].

214 Clark


right of individual petition to the international instances of protection of his rights.112

To have different statuses is to have different legal capacities and incapacities, as considered above. However, in light of international human rights law, it can therefore be argued that despite the status-based classifications, there is now an international norm of universal legal capacity to sue for violations of human rights. This norm has been materialised with the crpd, specifically Article 12, and op3-crc that came into force in 2013, to which I now turn.

4.3 Paradigm Shifts: Article 12 crpd and the Legal Capacity to ActThe crpd is a legal refraction of the discourse of disability theory. It represents the need for a new vocabulary when discussing disability and it highlights the ideological shifts that have occurred identifying and critiquing ableism and normalcy.113 In unmasking the workings of the ideology of ability/normalcy, disability theory brings the ideology of ability out of the shadows (“no-one ‘normally’ thinks of ‘normalcy’”).114 There are striking parallels between the ideology of ableism in disability theory as such, and the ideology of disability within child rights discourse and law, which I do have the space to detail here. Suffice it to say, that the semantics of legal ‘disabilities’ themselves are ideo-logically driven, and need to be dismantled in discussing child rights.115 The Preamble of the Convention can be seen as an example of the dynamism of status, which stipulates that “Disability is an evolving concept”. Ultimately, the crpd, as a refraction of disability theory embodies the right to have rights, through dethroning “enlightenment rationalism”.116 It reflects the recognition of one’s legal personality implies recognition of both one’s capacity to have rights, and one’s capacity to act.117 Unlike Articles 16 iccpr and 12(1) of crpd,

112 Ibid., at [57].113 Tobin Siebers, Disability Theory (University of Michigan Press, 2008); Rod Michalko and

Tanya Titchkosky, Rethinking Normalcy: A Disability Studies Reader (Canadian Scholars’ Press, 2009).

114 Michalko and Titchkosky, ibid.115 I have used “disabilities” in this article, as key to the liberal legal ideology which I seek to

reveal. This Blackstonian terminology is still the same in the contemporary Western legal tradition, which is reflected quite clearly in the laws of the respective legal systems.

116 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.

117 Volio Fernando, ‘Legal Personality, Privacy and the Family’, in L. Henken (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (Columbia University Press, New York, 1981).



which recognise only the right to have rights, Article 12(2) of the crpd recog-nises that people with disabilities have a right to legal capacity to act on an equal basis with others. The paradigmatic shift occasioned by Article 12 is explained by Gerard Quinn: “I don’t think I exaggerate when I say that the issue of legal capacity reform is probably the most important issue facing the inter-national legal community at the moment”.118

It is frequently said that Article 12 of the crpd is emblematic of the paradigm shift of the convention. I agree … It is the deceptively simple proposition that persons with disabilities are ‘subjects’ and not ‘objects’ – sentient beings like all others deserving equal respect and equal enjoyment of their rights.119

Therefore, in a sharp break with past conventions, Article 12 calls for an almost irrefutable presumption of legal capacity: “In effect, in separates out mental capability (which may vary) from the right to legal capacity that remains constant”.120 The crpd revolution is that precisely that the law must abandon cognition/rationality as the essence of personhood – the “myth-system of the rational and masterless man”.121 Since the entry into force of the crpd, “there is an emerging consensus in international human rights discourse on the notion that all human persons, regardless of their decision-making capabili-ties, should enjoy “legal capacity” on an equal basis—that is, the right to be recognized as a person before the law and the subsequent right to have one’s decisions legally recognized”.122 We see the dynamism of the legal concept of capacity, where the ‘natural’ disabilities of disability have been severed from the legal disabilities of incapacity. Capacity thus reveals itself to be greatly flexible and capable of accommodating the legal rights persons with disabilities – one of the two statuses left behind in the progression from status to contract.

118 Quinn, supra note 116, at 3.119 Ibid., at 3–4.120 Gerard Quinn and Anna Arstein-Kerslake, ‘Restoring the ‘Human’ in ‘Human Rights’:

Personhood and Doctrinal Innovation in the Un Disability Convention’, in Conor Gearty and Costas Douzinas (eds.), The Cambridge Companion to Human Rights Law, eds. (Cambridge University Press, Cambridge, 2012). at 47.

121 Quinn, supra note 116; Quinn and Arstein-Kerslake, ibid.122 Eilionoir Flynn and Anna Arstein-Kerslake, ‘Legislating Personhood: Realising the Right

to Support in Exercising Legal Capacity’, 10(1) International Journal of Law in Context (2014) pp. 81–104 at 124.

216 Clark


4.4 op3-crc and the Child’s Right to Individual PetitionChildren have been beneficiaries of the right of individual petition for as long as the right has been available.123 However, as I have shown in earlier research, the usage of the complaints procedures by children is exceptionally low: only two percent of the cases before the Committees of the core human rights treaty bodies were brought by children.124

The op3-crc was adopted by the United Nations General Assembly on 19 December 2011 and entered into force 14 April 2013. With a rapidity paral-leled only by the drafting, adoption and entering into force of the crc itself, from its inception in 2000, and taking-off in 2008 the draft was adopted in 2011.125 At the international level, the strategic choice to launch the campaign in 2008, when the un Human Rights Council was just concluding its negotia-tions over a similar protocol to the International Covenant on Economic, Social and Cultural Rights (icescr), led to the “opening up the political space for new initiatives”.126 It is not surprising, given the legal disabilities of children that the crc should have been, then, the only one of the core human rights treaties without a complaints mechanism. The paradox of it being the most ratified human rights treaty127 and yet not being enforceable has led one com-mentator to state, cynically, that “one could say that the crc is broadly ratified because it is almost inherently unenforceable”.128

Though the issue of legal capacity was not directly addressed in OP3-CRC it was raised during the Working Group sessions by the objections by the Swedish delegates to such a treaty, when “children are not granted such rights at home”.129 The discussion was not seriously pursued as children are granted legal capacity to bring complaints under every other core human rights treaty with an individual petition procedure.

A legal transformation of some magnitude has occurred. op3-crc gives chil-dren as individuals, a genuine appeal that will enhance realisation of the

123 The right was first made available with cerd (adopted in 1965).124 Malcolm Langford and Sevda Clark,’The New Kid on the Block: A Complaints Procedure

for the Convention on the Rights of the Child’, 28(3–4) Nordic Journal of Human Rights (2010) pp. 371–400.

125 For an overview of the lobbying and drafting history of the op3-crc, see ibid.126 Ibid., p. 376.127 It has been ratified by 194 states, excepting only the us, Somalia, and now, South Sudan.128 Smolin, supra note 11.129 As noted by Sevda Clark, representing the Norwegian National Institute of Human Rights,

in Geneva at the Second Session of the Open-ended Working Group to Explore the Possibility of Elaborating an Optional Protocol to the Convention on the Rights of the Child to Provide a Communications Procedure, in January 2011.



substantive rights contained in the crc. op3-crc does not create any new sub-stantive rights for children, but provides a means through which to further strengthen their protection. In so doing, any remaining objections to the legal capacities of children at the international level have since been eviscerated. The crc Committee has clearly reiterated a principle of international human rights law, that “For rights to have meaning, effective remedies must be avail-able to redress violations. This requirement is implicit in the Convention and consistently referred to in the other six major international human rights trea-ties”.130 The development in international human rights law of an instrument which strengthens children’s legal rights and access to remedies is undoubtedly a critical pillar of the norm-creation of the law of international human rights.

5 Conclusion

This article has sought to uncover the phases in the legal rights of children – their status as persons and their associated legal (in)capacities – through the legal sociological approach of legal ideology. Thus, the methodology is to be distinguished from existing scholarship131 in that the deprivation of legal capacity for children is attributed not merely to the philosophical bases of rights theories in the Western legal canon, but to a shrewder source: the legal ideology of individualism. As ideology, individualism has been instru-mental in maintaining the continued justification for the legal disabilities of children, well into the present period. It has accomplished this through the all-encompassing, static and seemingly permanent nature of status distinc-tions and the capacity principle at law: specifically, that status is a fixed attri-bute, tightly conjoined with (in)capacity. Rather, as I hope to have demon strated, status and capacity are eminently flexible legal concepts that are capable of facilitating the legal agency of children and persons with disabilities: the two statuses left behind in the movement from status to contract. ‘Natural’ disabili-ties of childhood and disability have been severed from the legal disabilities of incapacity. This article has argued that a seismic shift in person status for

130 Committee on the Rights of the Child, General Comment No. 5, General Measures of Implementation of the Convention on the Rights of the Child, crc/gc/2003/5 (2003).

131 From efforts to understand the philosophical foundations of who counts as persons for law, such as, notably, Federle, supra note 12; Katherine Hunt Federle, ‘On the Road to Reconceiving Rights for Children: A Postfeminist Analysis of the Capacity Principle’, 42 DePaul L. Rev. (1992) p. 983; Ngaire Naffine, ‘Who Are Law’s Persons? From Cheshire Cats to Responsible Subjects’, 66(3) The Modern Law Review (2003) pp. 346–367.

218 Clark


children has been heralded with the international law of human rights and the norm of legal agency for children: namely, their legal status as children is not of itself an obstacle to legal capacity to sue for violations of their human rights. The movement from status to agency can be sketched as follows in Table 1: Movement from status to agency.

The movement from status to rights has not been elaborated upon in this article. It is the present domestic context in the North American and Western legal tradition – that which scholars such as Federle, it is submitted, are correct in critiquing. It is the half-way house of legal personality; without legal capacity to act upon fundamental rights violations by seeking redress before courts in one’s own name. This common law doctrine of the disabilities of vulnerability

Table 1 Movement from status to agency

Phase Status-type Legal Characteristics

1 Ideology of Individualism

Sortal (S)Fixed/static

No legal personality(In)capacity

Ideology of individualism has carved out ‘status’ as exceptions in the law for certain persons (women, children, slaves etc.)

2 Status to Contract Condition (C)Fixed/static

No legal personality(In)capacity

Legal personality granted to certain classes on basis of capacity to contract (children and people with mental disabilities excluded)

3 Status to Rights Condition (C)Fixed/static

Legal personality(In)capacity

Recognition of legal personality of all people, including children and people with mental disabilities, who still do not have capacity to act (merely to enjoy the right to have rights)

4 Status to Agency Sortal (S) & (C)Dynamic:

Legal personality(Limited) Capacity to sue

Legal status decoupled from capacityAll people have capacity to sue in international human rights law for violations of their human rightsStatus no longer normatively fixed but has to be constantly evaluated by reference to policy determinations



is “sound so long as it is being used to protect children. However, it is illogical to allow the doctrine to become the sword against the child”, in denying chil-dren the capacity from “knocking on the courthouse door”.132 Yet, in existing scholarship, the missing factor has been the heuristic utility of ideology: an examination of what status and capacity acquire in legal ideology through the powerful ideas of the contracting individual. Status distinctions, and the prin-ciple of capacity that determines which rights can be exercised by whom, are here to stay, and have indeed been codified in international human rights law. Advocating their dismissal, would likely be unattainable in the legal system. However, as legal concepts/tools, they are highly susceptible to change. Writing about status in 1930, Kemp Allen wrote:

It is reasonably safe to say that the balance of authority favours the view that … status is determined by the personal law (… the lex domicilii).

Status, it has been submitted, is a legal condition, a legal state of being; but since all law, except Public International Law, is of territorial ambit, the legal condition of an individual is necessarily dependent on local or ‘municipal’ circumstances.133

Status distinctions have moved from the territorial ambit to the domain of public international law, and we are presently witnessing the momentous influence of the core human rights treaties, not least the crc and the crpd on legal status and capacity.

Status has been static, historically, but can now been seen as a dynamic organising principle – justificatory of public policy – as coined by Waldron. As such, it is an expedient tool in the quest for empowerment of marginalised groups, not least, children. Status has been coupled with capacity historically; the legal ideology of individualism with its veneration of the contracting indi-vidual has denied children and people with mental disabilities legal agency: the capacity to sue in addition to legal personality. However, as we have seen, there is now a universal norm of legal capacity to sue for violations of human rights at the international level. This demonstrates that status determinations – the status of childhood or of disability – do not in themselves determine the legal incapacity of individuals.

The vulnerabilities and incapacities of children are the powerful symbols used in the Western legal tradition to continue to deny children the right to

132 Lewis Pitts, ‘Fighting for Children’s Rights: Lessons from the Civil Rights Movement’, 16 University of Florida Journal of Law & Public Policy (2005) p. 337, at 348.

133 Allen, supra note 27, at 293, 294.

220 Clark


legal agency. In such a context; “Legal individualism seems a part of legal ideol-ogy in which the contradictions between legal doctrine and the changing social environment in which it is applied are breaking through the calm sur-face of legal ideas”.134

134 Cotterell, supra note 17, at 305.

Child Rights and the Movement from Status to Agency: Human Rights and the Removal of the Legal...

Documents

Transcript of Child Rights and the Movement from Status to Agency: Human Rights and the Removal of the Legal...