Youth Voice and Power

by Harry on January 8, 2004

The latest issue of the Arizona Law Review is available online, seemingly with no subscription needed. It’s an interdisciplinary issue on Youth, Voice and Power, with several interesting papers, all pretty accessible. Despite the liberationist-sounding title, most of the papers are pretty soberly paternalistic. They’re all worth reading, but the two I learned most from are by Tamar Schapiro and Robert Emery.

Schapiro’s paper is a careful and immensely clever account of why it is that children should not be treated as full moral persons. She treats childhood as a predicament, and children as beings whose wills are unformed and therefore to whom actions are not attributable. She argues that this, Kant-inspired, defense of paternalism toward children is superior to the defense based on a developmental account of childhood, which she thinks is pretty easily countered by the liberationist. Switching gears completely, Emery’s paper is about the role of children’s voices in divorce proceedings. He explains, drawing on a wealth of clinical experience, many of the pitfalls of asking children what they think and what they want in contested divorce, and argues that even many older children are ill-served by courts which look for their input.
Incidentally, my own paper is, I suspect and hope, the only paper in the history of American Law Reviews with a quote from Richmal Crompton. I hope that’s not the only thing distinctive about it (but it may be).

{ 1 comment }


Invisible Adjunct 01.09.04 at 1:08 pm

I read the Schapiro paper quickly, so I’m almost certainly missing something.

Initial impression: this is a dangerous line of argument. Most adults I know (self included) wouldn’t meet the criteria of attributability most of the time, if ever.

Moreover, at no point have we “liberated” ourselves from “the governance of instinct.” Grant that there is a “species life” dimension to the kind of creatures that we are (which is to say, human animals), children are probably no closer to or farther from that dimension than adults.
What makes human infants and children so dependent on others is precisely the fact that they (which is to say we) are not governed by instinct. Unlike, say, turtles, who hatch themselves and go on their way, humans are born without knowing what to do because almost all of what we do has to be learned.
What children lack, I think, is not reason (many adults lack reason as defined by Schapiro, and that’s not a good enough reason to not treat them as full moral persons), but experience or practical wisdom.

Though it’s difficult to avoid a development telos in thinking about childhood and children, replacing the developmental model with a notion of childhood as liminal state does not strike me as a very satisfactory position. There is no liminal state between nonhuman animal and full adult. We always are just whatever it is that we are (some sort of thinking, reasoning, feeling animal) at every point, from childhood to old age. In legal and moral terms, the challenge is to treat children as full persons and ends in themselves while acknowledging their relative lack of autonomy.

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