Children’s Transitional Rights

Abstract

This article reflects upon the contribution that psychoanalysis can make to our understanding of children’s rights in a liberal legal system. The question of children’s rights has been richly debated over the past half century. Some commentators believe children’s rights would undermine parental authority; others argue that rights would diminish children’s welfare claims. But a major obstacle to children’s rights is our liberal legal system itself. We presume children lack the autonomy that liberalism sets as a precondition to possessing rights. Yet psychoanalytic theory supports the notion of “transitional rights” grounded in children’s special status as children. Unlike liberalism’s baseline rejection of children’s rights, which assumes children’s lack of adult decision-making skills, a psychoanalytic account of children’s transitional rights focuses on the skills and capacities that children have rather than the adult capacities they lack. It captures the emotionally-laden, developmentally-anchored, interpersonally-derived psychological experience of what it means to become a mature, autonomous, rights-bearing adult. The psychoanalytic ideas relevant here concern intrinsic capacities such as attachment, internalization, and fantasy, and the interplay of these capacities with early cognitive and reality-based thinking. To the extent this account of children’s intrinsic experience reveals the importance of early emotional relationships for the unfolding of mature autonomy, we discover the affirmative, constitutive, protective – even Romantic – role of transitional rights in a liberal system of justice.