Children's Choices or Children's Interests: Which Do Their Rights Protect?

Brennan, Samantha

doi:10.1093/0199242682.003.0004

Cited by 66 publications

(20 citation statements)

References 68 publications

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“…However, an account of a rights‐based system of punishment that requires only consistency with agency, where agency is understood simply as the capacity to exercise choice, is impoverished in at least two regards. First, given that the capacity to exercise choice is acquired at a very early age, under a ‘pure’ agency account, children would become criminally liable at a stage in life that most of us would find grossly unacceptable. Secondly, because the imagined rights‐holder is stripped of all characteristics, experiences, and social conditions, it assumes that all individuals are equally able to act freely when in fact they are not.…”

Section: The Centrality Of Autonomy To a Rights‐based Criminal – And mentioning

confidence: 99%

Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights

Hollingsworth¹

2013

Modern Law Review

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This paper develops a theoretical approach to children's rights in youth justice, located within a wider rights‐based theory of criminal justice which emphasises the centrality of citizens' autonomy. Understanding what is special about children's rights in the youth justice system requires an understanding of how children's autonomy differs from that of adults. One difference is that within the legal system children are not considered to be fully autonomous rights‐holders, because childhood is a time for gathering and developing the assets necessary for full autonomy. These assets should be protected by a category of ‘foundational’ rights. It is argued that an essential component of a rights‐based penal system for children is that it should not irreparably or permanently harm the child's foundational rights. The concept of foundational rights can then underpin and strengthen international children's rights standards, including those relating to the minimum age of criminal responsibility, differential sentencing for children and adults and a rights‐based system of resettlement provision.

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Section: The Centrality Of Autonomy To a Rights‐based Criminal – And mentioning

confidence: 99%

Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights

Hollingsworth¹

2013

Modern Law Review

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“…In contrast, interest theorists claim that rights function to protect the interests of the rights holder and in so doing further the welfare or well-being of the individual. 14 The present analysis adopts Samantha Brennan's approach to determining the applicable rights approach, which is premised on the view that it is the nature of the rights-holding individual in any given case that determines whether rights will protect interests or choices. 15 Although Brennan formulates her argument in the context of moral rights, this can plausibly be extrapolated to interpreting the nature of rights declared in the international conventions under discussion, and this may inform a best-interests analysis.…”

Section: The Purpose and Function Of Rightsmentioning

confidence: 99%

Minors and Contested Medical-Surgical Treatment

Snelling¹

2016

Camb Q Healthc Ethics

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Use of the best-interests test as the legal standard to justify medical treatment (or its cessation) in respect to legally incompetent adults or minors has come under sustained critique over the years. "Best interests" has variously been alleged to be indeterminate as well as susceptible to majoritarian ideology and inherent bias. It has also been alleged to be inferior to rights-based approaches. Against the background of several particularly hard cases involving minors discussed by Gillett in a prior article in this journal, this article considers some of these critiques. It concludes that these critical accounts make significant contributions to enabling a more procedurally and substantively robust consideration of what might be in a child's best interests. However, it is argued that none of these accounts alone provide a superior framework that would justify jettisoning the concept of best interests. Further, it is suggested that best interests still has an important role in achieving patient-centered decisionmaking in this context. It concludes by suggesting a taxonomy of considerations when determining best interests.

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“…Therefore the argument from incompetence, as espoused by will theorists, seems to be fatal for understanding children as rights bearers. Recent literature on the rights of children has focused on 'autonomy' rights -those rights that involve the uncoerced choices and actions of the right-holder according to their conception of the good life (Brennan, 2002;Brighouse, 2002). Brighouse argues that it is not sensible to ascribe agency rights to children (2002).…”

Section: Concepts and Definitionsmentioning

confidence: 99%

Capacity, claims and children's rights

Cowden

2012

Contemp Polit Theory

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Children are often denied rights on the basis of their incompetence.A theory of rights for children is essential for consideration of the child's political status, yet the debate surrounding children's rights has been characterised by the divisive concept of 'capacity' typified in the two leading rights theory, Interest Theory and Will Theory. This article will provide a thorough analysis of the relationship between capacity, competence and rights. Although Interest Theory has successfully dealt with the competence requirement for being a right-holder, the competence requirement still holds for the type of rights a child holds. Children's interests are determined sufficiently strong to found a right when the claim-holder has the competence to realise the benefit to which that interest pertains. This allows us to recognise children as right-holders while constraining the types of rights they hold according to their developing competencies.

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Children's Choices or Children's Interests: Which Do Their Rights Protect?

Cited by 66 publications

References 68 publications

Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights

Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights

Minors and Contested Medical-Surgical Treatment

Capacity, claims and children's rights

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