Unlike other social categories, such as race, gender, sexual identity, and disability, the category of childhood has received little critical examination in the legal academy. Yet like other socio-legal categories with natural referents, childhood masks the contingency and normativity of behavior, expectations, power, and regulation, rendering this social order natural and inevitable. Childhood also scripts behavior and produces subordination and privilege in a manner unique to the adult–child dichotomy. As such, the category bears examination not only for what it reveals about adults, but also for what it reveals about the power and agency of children and the artificiality of childhood as presently constructed.
This article presents children as complex and powerful subjects in their own right, but also recognizes and embraces the important foundational and instrumental roles of childhood. While the dichotomous developmental frame that dominates the regulation of youth is important from the perspective of adults, and even children, this framework unduly limits consideration and appreciation of children’s agency and participation in social and political orders. Despite the undeniable developmental differences between most children and most adults, the socio-legal categories of childhood and adulthood are no less inevitable than man-woman, black-white, able-disabled. The adult-child divide is a social construct in, and of, a regime which creates and privileges independence in adulthood and privatizes and subordinates dependency in childhood. In turn, this subordination creates moral and political power in adults and removes it from children.
This article recognizes the structural importance of this categorical divide and the vulnerability this divide creates in childhood, but also its possibilities. Taking cues from ascendant human rights and disability approaches, this article suggests a model for bringing justice to children while preserving the important freedoms childhood creates for adults. This model, the Children’s Participation Act, presents an analytic framework for a more contemporary approach to children’s rights which aims to protect and promote children’s dignity and participation. This approach is part of a broader movement away from negative rights and toward liberty rights that enhance self-determination and value positive engagement with children and recognition of their individuality and humanity.