| With the worldwide development of the concept of rights and human rights, the human rights discourse expands greatly as the universalization of the subjects of human rights. Children’rights have raised the attention and discussion of different disciplines. The discovery of the children and children’s rights is an important milestone for the history of the human society. Studies focused on children’s rights are more and more in the modern society. Chinese academics paid attention to children’s rights after the UN Convention on the Rights of Children enacted. Thus, the emergence of a huge number of literatures shows the emphasis on the issues about children’s rights both from the Chinese academics and policies. However, researches on the children’s rights in China were promoted by the international society, which is more like an "exotic" for the Chinese traditional culture. Most of the studies are descriptive or explanatory based on the contract of Convention on the Rights of Children and take it for granted that the child should have rights, lacking in-depth reflection and discussion of the children’s rights theory as well as the analysis of the moral status of the children. So, the legislation and policy practice of the protection for children’s rights stay in the pro forma level and the status of children has not been improved fundamentally. Comparatively, the western society focused on the issue of children’s rights earlier, which can date back to17th century. Different theories and schools were generated based on children’s rights. Whereas, by summarizing the knowledge related to the children, rights and children’s rights throughout the development of the western theory, this dissertation tries to deconstruct and analyze the the basic issues of children’s rights, to grasp the fundamental issues such as the subject, content and boundaries of children’s rights, to confirm the logic, content and value basis of the children rights theory from the perspective of moral and rights philosophy, aimed at providing a theoretical foundation for the legislation and policy-making of the protection of the children’s rights both in and out China.This dissertation mainly talks about issues concerning the connotation, character, legitimacy and contents of the children’s rights, the relationship between the children’s rights and parents’rights as well as how much can the Parens Patriae intervene the children and their families. To understand the concept and nature of the children’s rights, the first thing is to make sure the meaning and essence of "child", because the view of the children’s rights is determined by the perspective about child. Child is a certain stage that every human being deemed to go through, as well as the product of the social culture’s construction. Previous studies on child and childhood reveal that there is no unified recognition for the essence of children. Differences exist even within the contemporary world. Understanding of children experienced a relatively long historical process. The overall trend is that the kids get rid of the dependent and subordination status to family or parents, getting an equal moral status same as the adults. The value that children as positive actors have gradually been recognized. After clarifying the concept of children, the clarity of the essence and meaning of "rights" come into practice. Interest theory, choice theory, entilement theory, claiming theory and so on explore the nature of rights based on different theoretical concepts and reasoning logic, providing the foundation for the understanding of children’s rights. Because of the differences between children and adults, the elements of children’s rights combine different aspects of rights, which mean the rights of children are not only interests, eligibility, but also requirements and choice. Understanding the rights of children from one aspect will lead to the simplification and partialization. All in all, today, chidren’s rights not only focused on the children trapped in difficulties only, but also covered every child, from the improvement of the children’s daily lives to the autonomy and self-determination of the children. The development trajectory of the theories of children rights in the historical development and change reveals reflections of human beings towards themselves and the evolution of the social structure. Despite facing a lot of criticism and rebuttal, the value and importance of children’s rights discourse can not be ignored.Although the question "what are children’s rights" has already be answered, how about "why do children have rights"? Whether the children’s rights have its legitimacy? The opponents argue that rights discourse is not suitable for children. Even some of the scholars who agree with the children’s rights also believe that children themselves can not be the subject of rights. It should be their parents or other adult guardians to exercise on behalf of the children. Traditional western human rights philosophy defines the "people" as the rational adults and links the rights to the capacity of exercising the rights. Therefore, the children are excluded. The argumentation logics which based on "the children are human beings, so they have the human rights" are easily attacked. Some scholors used this paradigm to prove the legitimacy of the children as the subject of rights from the reality that the children lacking of ability, or from the findings based on the children possess ability. Although they can provide powerful evidential and theoretical support, the paradigm connecting the rights with ability is not good for children’s rights (especially the autonomous rights). With the transferring of western philosophy from subjectivity to inter-subjectivity, the paradigm demonstrating began to emphasize on using the inter-subjectivity to provide legitimacy for the rights of children. The children’s rights became a kind of negotiation, communication and acknowledgement between children and adult. However, this paradigm makes children subjected to the adults’society, because they can not use the ability of negotiation well, children’s rights become dominant by the adults. This study brings about the analysis frame for the rights of children that based on the needs. Using the description made by Ecological Systems Theory for the development of children integrates the subjectivity capacity paradigm and inter-subjectivity paradigm, offering the legitimacy for the rights of children by getting back to the nature of children.Now that children have right, what kinds of basic rights do they have then? From the needs of children, the right of survival and freedom become the core rights of children. These core rights can be specified to different right type combined with the Convention on the Rights of Children and other human rights documents. While it is not possible to end up all of the types of the children’s rights, based on philosophy and law, this dissertation offered the guidance for the operationalization and specified the children’s rights. Due to base on various theoretical hypothesis and values, the rights of children can be conflicted to each other. By insisting on the principle of "the child’s best interests" and putting the interests and development of children into the first place, the confliction among the different rights can be solved effectively.The rights of children also facing the external challenges and conflicts, the primary one comes from the rights of parents. Traditionally, it is the parents who decide and deal with the internal family affairs, therefore, the emergence of the children’s rights discourse made some people worried that the traditional rights of parents would be challenged. As the society developing, the rights of parents also experienced the historical evolution changing from the paternal-oriented to parents-oriented, and then to child-oriented. There is consistency between the parents’rights and children’s rights, as well as the existing of the contradicts and conflicts inevitably, such as the abuse and deficiency of the parents’rights and over intervention of the parents’rights will affect the lives of children, hinder the children’s rights to be utilized. In fact, children’s rights and parents’rights are not diametrically opposed, the two can be combined together to deal with social injustice, but under certain circumstances the parents’rights should be constricted or even deprived.Children’s rights discourse also challenges the traditional understanding of the relationship between the state and the family. There are different relations between the state and family. During the different stages in the history, the strength and depth of the state intervention in the family is not consistent. For whether and to what extent should the state intervene families, different theories have various views. The views go with the family autonomy shaped by liberalism or the state intervention the families. Changes in the modern social relations made the state intervention an important protection to the interest of families and children, but this kind of state intervention has its limitation. Thus, this study also discusses the principles of the state intervention to family and the limitations to the state power based on the theory of Parens Patriae.Through the elaboration of the above issues, this study will complete and improve theoretical studies of children’s rights and bring inspiration for those existing study topics such as duties and responsibilities, which will further deepen the theoretical study of children’s rights and clarify those confused understanding of some basic issues about children’s rights caused by conflicts of culture and values. Although this study is mainly based on sorting out the developmental context of western children’s right, this study will ultimately provide the basis for Chinese child protection system and policies. Actually, if we ignore the theoretical foundation and social background and simply transplant or copy Western Children’s Rights protection system, it is difficult to make the system effective. In fact, this whole study is to serve an ultimate goal, which is the realization of children’s freedom and self-worth. By this academic exploration, this study aims at arousing the attention and review to children’s issues from all sectors of the society in order to further reflect on these issues about children such as children’s status, children’s freedom, family education and school education and so on, which will be helpful for creating a good social environment for their development and realization of self-worth.The innovations of this dissertation are following. Firstly, current studies concentrate upon the Empirical study and action research, it’s a new try to discuss the child and children’s rights from moral philosophy and political philosophy. Secondly, current studies take it for granted that the child should have rights, this dissertation analyze different reasoning paradigm on children’s rights in depth to give provide a basis for theory construction of children’s rights. Thirdly, this dissertation not only pays attention to analyze the concepts such as children and rights, but also focuses on the power relationships around children, parents and state. In a word, compared with current studies on law, policies, procedures et al. to protect children’s rights, this dissertation tries to analyze the theoretical logic, values, relationship between different powers behind children’s rights.However, this dissertation also has some limitations. First of all, because of the author’s different perspective and knowledge structure from other discipline, inevitably, there are some omissions or errors in tracing theories about children and children’s rights in the moral philosophy and political philosophy, which will affect the completeness of relevant issues. Secondly, the depth of analysis decreases when the dissertation what to cover more topics. Thirdly, Values, ethics and so on behind children’s rights are not comprehensive. These will be the future direction to make breakthrough and development.This study has mainly reflected on these issues including children’s deserved rights, conflicts of the right, relationships among children, family and country, etc. Undoubtedly, there are still many important issues involved in children’s rights such as the principles of protection for children’s rights, the law frame, the design of policy and system, the skills and values in specific service for children and so on. However, this study has not done in-depth analysis and discussion in these issues. It is surely that the cognition and analysis to these issues are very important, which even will play a key role. These issues also open an essential space for the further study, which will surely attract author’s persistent interest and enthusiasm for further study. |
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