Children's Transitional Rights
Law, Culture and the Humanities (2014)
17 Pages Posted: 10 Feb 2014 Last revised: 23 Aug 2014
Date Written: February 7, 2014
Abstract
This Article reflects upon the contribution that psychoanalysis can make to our understanding of children’s rights in a liberal legal system. 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.
Keywords: Children, Children’s Rights, Liberalism, Psychoanalysis, Psychology, Law, Rights
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