by Akira Morita, professor of law, Tokyo University, Tokyo, Japan
Preface-Defining the Issue
"Children's rights" is a controversial concept.
A typical example is the "Convention on the Rights of the Child,"
adopted in 1989 by the United Nations.
The Convention's catalog
on the "child's right to autonomy," which adorns the whole of the
final 1989 Convention draft as a symbol of the spirit of our age, was the fruition
of deliberations by the working group of the UN Committee on Human Rights under
the bold initiative of the United States representative. Any discussion of the
Convention cannot fail to mention the influence America has had on it.
Since the Convention came
into force in September 1990, following ratification by the prerequisite twenty
states, the number of state parties multiplied with unprecedented speed. Today,
the number of state parties stands at 191, and the only country that has yet
to ratify the Convention other than Somalia is the United States.'
This is indeed a curious
state of affairs. In America, the voice of the philosophy and spirit of the
Convention at its drafting, a controversy emerged over the pros and cons of
ratification which has yet to be resolved. The series of articles America invested
so much energy in at the drafting process are the very ones that have incited
the most heated opposition.
Exactly what is the significance of this development? What sort of problems are contained in the concept of children's rights, whose "lofty goals and high-sounding words" were embraced by the international community with such amazing speed?
There are two, quite dissimilar, varieties of children's rights: the right to protection and the right to autonomy. My presentation will tend to focus on the right to autonomy as I examine the the issues involved in children's rights from two directions. First, I will make a legal analysis with the material of the Convention on the Rights of the Childl, and second, an analysis of points at issue from the standpoint of the psychological structure of the parent-child relationship. Through this process of orderly examination, I hope to uncover what we need to keep in mind and the approach we should take to the concept of children's rights in order to avoid the pitfalls it can engender.
I. Parental Authority
versus State Paternalism-the First Paradox
1) The 1959 "Declaration of the Rights of the Child" purposed to be
a declaratory guarantee of the
child's right to protection. The concept of the child's right to autonomy that
appeared at the close of the 1960s was one sti II undreamt of by the drafters
of the Declaration.
Incidentally, by tracing its drafting process, We discover that deliberations on the Declaration proceeded in the midst of fierce opposition between subsidiary paternalism championed chiefly by the United States and Great Britain, and the active state paternalism insisted on by former socialist countries such as Russia and Poland. More specifically, the socialist countries' insistence on a declaration that was legally binding to allow the state to actively intervene in the family relationship in the name of children's rights and create state-run child welfare networks that would reach every comer of society, was strongly opposed by America and England as we can see from statements such as the following:
Some countries held that
the text was valueless because it imposed no legal obligation on Member States.
That view had been mistaken.2
We could not support the USSR amendment, since it implied that the State was
primarily responsible for the welfare of the child, a view which we could not
share. The main responsibility lay with individual men and women and it was
only when they were found wanting that the State should intervenes
That is, the free nations contended that protection and education of the child are fundamentally the province of natural parental authority, which should not extend to state law. The law should only be allowed to intervene in exceptional or subsidiary fashion in unavoidable emergency situations arising from the parent's incompetence or immorality. The outcome of the dispute was that the agreement passed the LTN General Assembly in the form of a Declaration that was not legally binding. This tells us that confidence in family autonomy and natural parental authority, an institution that predates the State, was still alive in the westem world.
2) In the latter half of
the 1960s, however, America became the first country to experience an attack
on family autonomy and natural parental authority, and their rapid decline—what
is referred to as the dissolution of the family—does not need to be repeated
here. Out of the process of the decline of parenthood, emerged a new concept
of the child's right to autonomy that was at once a result of the decline and
an ideology of anti-patemalism that furthered it. Twenty years after the Declaration,
what spurred the American representative and the many NGOs that participated
in deliberations on the Convention on the Rights of the Child was none other
than a distrust of natural parental authority and the reaction against it that
took American society by storin in the 1970s.
Now the American representative
raced toward the new goal of the child's right to autonomy and the child's best
interests guaranteed by the State. By now the premise that the Convention to
come must be legally binding on state parties was so obvious as to leave no
room for debate. The American representative presented one draft after the other
concerning children's civil liberties and thcse were formulated into Articles
12 through 16 of the Convention.
The child's right to autonomy inevitably transferred the character of the family, which had been an organic entity consolidated by parental authority. Article 5 speaks the most eloquently of this:
States Parties shall respect the responsibilities, rights and duties of parents . . . to provide, in a manner consistent ' with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
Here the child is the subject that exercises rights independent of the parents. These parental rights of direction and guidance are no longer of the same order as the parental authority that preceded the State. This contractual image of the family that such an order of rights and duties describes, differs from the organic entity of the traditional family image. Children given the rights to autonomy and deprived of the shelter of parental authority are now obliged to confront the law and the State directly.
3) What we should note
here is the structural change imparted to the whole of the Convention by incorporation
of the child's right to autonomy.
With trust in parental authority lost, the State no longer needed to abide by
the subsidiary principle of intervention. In fact, the State was now the new
savior that should protect the child's interests
from parental authority—a duty that was by this time not a declarative
and moral duty but a legal one.
If we take a fresh look
at the entire Convention on the Rights of the Child from this perspective, we
are surprised to find that the State's responsibility toward the child's right
to protection that was so delicately handled under the subsidiary principle
in the Declaration of the Rights of the Child has been strikingly expanded and
strengthened in scope and degree in the Convention. Examples are found in Article
19, which stipulates "State Parties shall take all appropriate legislative,
administrative, social and educative measures to protect the child from all
forms of physical or mental violence, injury or abuse . . . while in the care
of parents." The discreet approach taken by the state under the subsidiaryprinciple
is nowhere in sight.
Here we are able to clearly observe the legal dynamism by which the right to autonomy, as a criticism of parental authority, breaks down the organic family entity into individual units, and conversely how the right to protection generates a powerfw State paternalism. This is quite paradoxical. As a logical model, the aggressive system of State guarantee of the right to protection that emerged with the victory by the right to autonomy, surely bears a close resemblance to an order by which the. state could seize any one of its subjects, which the Western states—with America heading the list—wamed against continually during the drafting of the Declaration of the Rights of the Child! Aren't we now confronting the paradox of a new brand of totalitarian state paternalism prepared in the name of autonomy and rights?
4) Well, I have drawn a rough sketch of the Convention on the Rights of the Child adopted by the UN General Assembly just ten years previously. As I mentioned at the outset, the movement in America to promote ratification of the Convention now in concrete form, encountered fierce opposition from the grassroots community. The ratification procedure once got as far as signing to the United Nations in 1995; but an opposing resolution by the Senate Foreign Relations Committee has completely halted ratification for the time being. In a way, this is in itself a very dramatic story: Why, in America of all places, are such events going on? Here I would like to point out only that the United States, as the pioneer of the development of children's law in the twentieth century, is the very country that has experienced most intensively the significance and gravity of the conflict between organic human relations and right-based relations. I would like to quote a passage from a dissertation written in 1992 by legal scholar Dr. James Lucier that provided a theoretical foundation for the anti-ratification movement:
What is missing in the
Convention is the underlying idea of rights for families... By. endowing the
child with legal autonomy, that is to say, enjoying rights independently of
the fainily, the new doctrine put the family in the position of mere caregivers,
bound to the observance of the child's rights.
Every child becomes the adversary of the parents, at least in the potential, and the adversary of brothers and sisters in competition for rights.... By destroying the human factor in human relationships, the advocate of autonomy, especially the autonomy of children, will create a society which lacks the principles of cohesiveness and common purpose necessary to its common existences
Lucier expresses quite
succinctly the feeling of impending crisis that the legal concept of the child's
right to autonomy would act as a frontal attack that tears down the human factor
in parentchild relationships. It is this sense of crisis, more than anything
else, that has factored in preventing ratification in America, the home of the
philosophy and spirit of the Convention.
Here we need to examine the origin of the nature of the human factor in human relationships of which Lucier speaks. How does this human factor clash with the concept of children's rights'? Let's take another look at this issue.
II. The Parent-Child
Relationship versus Children's Rights-the Second Paradox
1) The energy that upheld the child's right to autonomy that appeared in the
1960s arose from an antipathy to and distrust of the essentially vertical and
paternalistic structure of the parent-child relationship. Through that energy
ran the thread of emancipative passion embodied by those modem citizens who
waved on high catalogues of civil rights and fought in the past against restrictions
and constraints imposed by an absolute monarchy.
But is the parent-child relationship really a system that is constraining and subordinating in substance? We know intuitively that the essence of this relationship cannot be fully explained by legalistic vocabulary such as "parental right." In order to theoretically ascertain this intuition, however, we need to borrow the power of psychological insight. Here I will attempt to access this issue by employing the framework postulated by Japanese psychiatrist Takeo Doi whose book, The Anatomy of Dependence5, made him known throughout the world.
2) Doi's research based upon the concept of amae, which is a term denoting emotions and behaviors expressed by a child toward his mother or anybody for that matter, child or adult, in a similar situation. It is his main thesis that though the Japanese word amae has no equivalent in European languages its concept is universal. Let me quote some passages from his recent article,
Amae is a noun form of amaeru, an intransitive verb meaning "to depend and prestane upon another's love or bask in another's indulgence." It has the same root as the word amai, an adjective meaning "sweet." Thus amae can suggest something sweet and desirable. Perhaps what is most significant about the word mnae is that it definitely links with the psychology of infancy, for we say about a baby that it is amaeru-ing when it begins to recognize the mother and seek her, that is to say, long before it begins to speak. Please note that amae here refers to the feeling of attachment that is observable. Later, when a child begins to speak, he or she will eventually leam that such a feeling is called mnae. But that does not change the situation that the feeling of amae is something to be conveyed nonverbally. 6
Doi continues, it must be clear from what has been said above that amae involves a certain psychological dependence, because one who wants to amaeru requires another person who senses one's need and can meet it. Thus amae is vulnerable and, being susceptible to frustration, it undergoes various transformations.
In other words amae is a concept that bridges dependence and attachment, two concepts which are conceptually separate in English. A straight translation of this word in to English is not possible. Amae is a word which was fosterd by Japanese cultural and historical experiences. As an example to demonstrate the universality of amae, Doi quotes one scene from The Little Prince by Saint-Exupery, a French novelist.
The little prince come alone to the earth and feels lonely. He meets a fox in the desert and wants to befriend him. The fox advises the little prince to tame him if that is his purpose. The little prince does not understand what "tamed" means and asks what it is. The fox explains it is to establish ties. The little prince again does not understand what is to establish ties. The fox then describes as follows.
To me, you are still nothing more than a little boy who is just like a hundred thousand other little boys. And I have no need of you. And you, on your part, have no need of me. To you, I am nothing more than a fox like a hundred thousand other foxes. But if you tame me, then we shall need each other. To me, you will be unique in all the world. To you, I shall be unique in all the world....
Doi points out that this passage describes very well how "taming" involves attachment and dependence, and he indicates the happy feeling that accompanies taming and getting tamed corresponds just to amae. According to the Doi's theoretical framework, we may call the fundamental need that is working at amae as the dependency need.
3) The identification process
that emanates from this dependency need, namely amae, plays a determinate
role in the child's psychological development. Certain restrictions imposed
by parental discipline and teacher direction are necessary accompaniments to
the child's freedom. Children endure punishment, obey orders and study their
school lessons because amae is at work in the background-that is, the
expectation that by identifying with parents and teachers, they will be accepted,
sanctioned, and loved. To put it another way, they do these things in expectation
of the joy that comes from gratification of the dependency need.
If we accept this as the
psychological mechanism by which the child relates to the parent, then how should
we understand the parent's role in this regard? It is, above all, to meet the
child's dependency need. How effective a parent is in directing and instructing
the child and obtaining the child's submission hinges on whether or not the
parent is able to meet and gratify the child's amae. In addition, parental
affection for the child grows within the process of this meeting. It is a dynamic
process of emotional interaction. The essential point here is that without the
asymmetrical parent-child relationship, such interaction is impossible. The
very fact that the parent is a greater presence than the child is what enables
the child to depend upon the parent. If parents ignore this vertical relationship
and set up a friendship-type of parent-child relationship by taking the egalitarian
approach and abandoning the child to spontaneity, the child will lose a receptor
for its dependency need as well as a channel for growth. Not only that, such
an approach provokes a number of pathological phenomena. I will go straight
to the point: parental authority is the foundation of trust that is created
when the parent acts as the receptor of the child's amae, making it possible
for the child to submit to that authority. It is not a constraining or subordinating
system in the sense of modem legal thinking.
Looked at in this way, we realize that a child is not an acorn that will autonomously put forth shoots all by itself according to a personal program if only it is given water. Human relationships in which amae can operate are indispensable to a child's growth. Such asymmetrical relationships are the medium by which the child gradually finds a path to the formation of individual self Doi suggests this when he writes:
Man cannot lead a human kind of existence without the experience of having belonged to something or other. In different terms, man cannot possess a self without previous experience of amaeru.7
As mentioned above, the adjectival form of amae is amai, which means "sweet." The fact that in western countries "sweet" is often used in connection with the family a "home, sweet home" for example—would seem to indicate that the quintessence of the parent-child relationship transcends national boundaries and divergent cultures.
Now, let's come back to the legal discourse on the children's rights. It is my understanding that the "human factor in human relationships" that James Lucier talks about in his criticism of the Convention on the Rights of the Child, refers. to gratification of the dependency need and the intimacy and "sweetness" that arise from the emotional exchange involved. This is certainly none other than an account of the amae Doi speaks of
4) By now it should be evident that the concept of the child's right to autonomy acts as a frontal attack on the inherent nature of the parent-child relationship.
First and most important,
the philosophy of children's autonomy lacks insight into the fact that the child
is not simply a little acom that can grow autonomously, but that gratification
of the dependency need by the parents is nourishment the child needs to grow.
Second, rights are, after
all, a concept of modem law that emerged as a weapon to be employed in the settlement
of disputes between individuals over conflicting interests. Rights arc not prerequisite
to interpersonal emotions and shared interests. If anything, rights tend to
work as a factor that severs these. If I may borrow the words of Professor Mary
Ann Glendon, rtiodem man's nature obliges him to be the "Lone Rights-Bearer...."8
So in the name of rights, children's rights cut off the amae that is critical
to the child's growth. I must say that herein lies yet another huge paradox
that children's rights inevitably generates.
I do not wish to be understood
as suggesting that the concept of children's rights in itself is completely
meaningless. The reality is that within the increasing complexity of modem society,
parental authority has become dysfunctional and abusive, and we must recognize
that there are many cases in which the child's right to protection, in particular,
is compelled to take on the role of an emergency fire brigade. Even in such
cases, however, we need to remember the words of Josef Goldstein that "Law
[and rights] may be able to destroy human relationships, but it does not have
the power to compel them to develop."9 In other words, rights cannot be
an Aladdin's Lamp that brings happiness. What children need most is the relationship
itself, not an isolated benefit conferred in the name of "rights."
If we forget that law and rights have such limitations and think of the Convention on the Rights of the Child and its catalog as a "magna carta for children," we will be walking into the myth and fantasy of twentieth-century that "children's rights" constitute.
Conclusion
1) Well, we have taken a look at two aspects of the paradoxes being raised today
by the concept of children's rights. What should we be looking for in order
to head off the dangers pregnant in such paradoxes? I want to conclude by searching
for clues in terms of a reassessment of the image of modem man that lies behind
the concept of the child's right to autonomy.
As I have mentioned, behind
the concept of the child's right to autonomy is the surrealistic view of the
child as "a little acom that grows up autonomously." It soon becomes
plain to anyone that this view, when illuminated by the light of ordinary everyday
experience, is lacking in realism. It is no more than an idolization and romanticization
of autonomy.
Nevertheless, why is it
that this concept is so highly contagious that it is becoming a fixture in today's
international conventions and conquering the western world? When we get to the
bottom of the matter, we arrive at the modernistic image of man, dating from
the eighteenth century onward, that regards complete autonomy in itself as a
legitimate possibility and holds it up as the ultimate ideal. That is, the ideal
depicts the individual as the Lone Rights-Bearer who has cast off all restrictions
and connections and is self-determining and self-contained. What props up this
ideal is a passion for emancipation-to throw off the shackles that bind and
thereby gain freedom. The appearance of the child's right to autonomy that we
are witnessing today is none other than a symbolic event that tells us that
this ideal of modem man has finally reached down, two hundred years after the
French Revolution, to the intermediating body positioned as the very basis of
society-the family. In other words, human beings today, still possessed of a
passionate emancipatory mindset, are now trying to push this ideal of modem
man onto tiny three-year-old tots.
It is at just such an historically critical point in time, however, that we are discovering through a fine and pragmatic analysis of the parent-child relationship the reality that human relatedness steered by the dependency need is the condition which provides human beings with a road to self-definition. To borrow Dr. Doi's words again, "Man cannot possess a self without previous experience of amaeru."
2) However, does the fact that autonomy and dependence share such a complementary relationship only hold true in childhood? Is the dependency need something that people conquer so that it vanishes out of sight when they reach adulthood? Is the human being really such a dichotomous creature? I think most certainly not: A close look at ourselves reveals the dependency need, namely amae, albeit in changed form, operating implicitly wherever sound human relationships and interdependency have been formed in a society. In other words, the dependency need does not vanish but takes on different forms to sustain our autonomy.
Certainly the word "dependence" has, in general, a bad connotation and produces a negative reaction, especially in the Western societies. It is because we are the Child of Modem Age in the history. But, let's reconsider. For instance, many of the participants of this conference are Christian. And a Christian is, by definition, a man (or woman) who prays. Now, is it possible at all for him (or her) to pray without a psychological dependence when he prays?
E. Erickson, who is of the same school of Freudian theory as Doi, calls the fundamental sensation experienced within the mother-child relationship, that corresponds to amae gratification, as Basic Trust. In this connection he states:
This bipolarity of recognition is the basis of all social experiences. Let nobody say that it is only the beginning, it passes, and it is, after all, childish... In that first relationship man learns something which most individuals who survive and remain sane can take for granted most of the time. I have called this early treasure "basic trust."
3) If we now return to
the subject of modem social theoretical concepts an-ned with an understanding
of human nature as I have described it, the historical position occupied by
the issues we are confronting today becomes apparent.
Modern society has started out with the binomial, confrontational framework of "freedom from restraint," and pursued autonomy, which materialized when connections and restrictions were thrown off, as an article of faith. As often as not, dependence and relatedness have been equated with humiliating subordination and inferiority and therefore tended to be relegated to the subconscience. It is fair to say that modem society did not possess sufficient experience or vocabulary to positively evaluate human dependency. As a result, the ironic reality we are facing today is that autonomy dissociated from dependency leads to the impoverishment of that autonomy and eventually offsets it. Family Law scholar Bruce Hafen, who has been a member of this University, points precisely to this historical reality when he says, "The waning of belonging contributes ultimately to the waning of actual autonomy and meaningful individualism."12 To put it another way, when modern society drove the dependency need into the subconscious, it set into place the conditions for the phenomenon of family dissolution we are experiencing today.
The tasks imposed by modern legal and social theory also essentially boil down to this one point. That is, to borrow the phrasing of German philosopher Hans Maier l3, to release the concepts of human autonomy and freedom from an obsession with emancipation and one-dimensional binomial confrontation held at the outset of modern society, and reconnect them to the dependency need and human relatedness that are the real supports of autonomy, and further, to bring them back into dynamic mutual association with our obligation to aid and support one another that is an extension of dependency need and human relatedness.
Needless to say, these are difficult tasks. But if we succeed in them we will have found the road that leads us beyond the dangers posed by the twentieth-century myth of children's rights.
1. Akira Morita, The Historical
and Philosophical Meaning of the Conversion on the Rights of the Child.-Predicated
on the
Experience of American Children's Law—(unpublished).
2.. General Assembly
Official Record, A/C, 3/SR, 908, at 12, 1959.
3. General Assembly
Official Record, A/C, 3/SR, 911, at 26, 1959.
4. James P. Lucier,
Unconventional Rights—Children and the United Nation, Family Policy, Family
Research Council,
Washington D. C. Aug. 1992.
5. Takeo Doi, The
Anatomy of dependence: The Key Analysis of japanese Behavior, Kodansha International
USA (1973).
6. Takeo Doi, On the Concept of amae, Infant Mental Health Journal, Vol. 13,
No 1, at 8 (1992).
7. Doi, note (5), at 139.
8. Mary Ann Glendon,
Rights Talk, 47, The Free Press, New York (1991).
9. J. Goldstein,
A. Freud, A. J. Soinit, Beyond the Best Interest of the Child, 49–50, the
Free Press, New York (1973).
10. C. P. Cohen and
H. A. Davidson (ed.), Childrens Rights in America: Conversion on the Rights
of the Child Compared with United States Law, iii, American Bar Association
(1990).
1 1. E. H. Erikson, Young Man Luther: A Study in Psychoanalysis and History,
II 7–118, W. W. Norton & Company Inc., (1958).
12. Brucc Hafen, Individualism and Autonomy in Family Law: TheWaning of Belonging,
41, BYU. Rev. No. l (1991).
13. H. Maier, Die Grundrechte des Menschen im modernen Staat, 71, Verlag A.
Fromm. Osnabr(ick (1973).