Appell's intention is to identify critical conceptions of justice for children and their families. She comments that although
feminist jurisprudence and other critical legal theories have challenged the naturalness and inevitability of the social order and exposed the power dynamics undergirding this constructed naturalness, child-centered jurisprudence has remained essentially a positivist endeavor.Her article, by
evoking methods of feminist jurisprudence and applying lessons of childhood studies that the construction of childhood is not a natural fact, but developed in specific ways, in specific contexts ... begins the project of uncovering the contours and work of the legal definition and regulation of childhood, the social category in which children sit.Enough with CritLit-speak, already, although I'm grateful that there aren't the usual invocations of Kristeva, Jack D and Spivak.
Appell explains that
The Article first outlines the legal construction of childhood, which, like earlier constructions of women, portrays children as private, dependent, and developmental. Next, it compares feminist and child-centered jurisprudence, particularly as they have been organized around and addressed dependency, and argues that child-centered jurisprudence has not interrogated the naturalness, dependency, and privacy of childhood. The Article then illustrates philosophical, political, and material conditions that resulted in the present legal construction of childhood in the United States as a natural, private, and developmental site leading to adulthood and political citizenship. The Article concludes with a set of observations that might drive a jurisprudence of childhood toward a more critical and robust conception of justice for children as children and as the adults they will become.Those observations include the statement that
children are defined in part by their deficiencies but also by their capacity to become members of the polity. This is a distinct aspect of childhood, a transient stage that is expected to prepare one for full capacity as an adult—amoral and political actor. So far, however, we tend to view this development and capacity in narrow and largely psychological and legal terms of physical and cognitive maturation and legal and political incapacity. The historical context of the development of contemporary American notions of childhood, along with its continued structural and ideological replication, continue to frame the child in individualized, developmental, and familial contexts, rather than in broader socioeconomic terms.From the perspective of my dissertation I'd like to see a broader 'jurisprudence of the vulnerable' rather than merely a 'jurisprudence of the child' or of 'women'. That vulnerability would encompass, for example, the aged, children, the disabled, refugees and the unemployed. Why not include animals?
We might also examine what it would mean to recognize children as beings with agency, voice, and authority. What might children say? How might they vote? What would they say they need? Who else should be consulted? Are there methods short of full agency and political citizenship that would promote justice for children? What, if any, portions of the construction of childhood can be improved, consistent with liberalism, to comport with liberalism's abandonment of the right of birth as the measure of power? Are there other ways of conceiving justice that would be consistent with family privacy and the moral liberty that privacy entails and promotes?
This Article presented a first step toward a critical jurisprudence of childhood. It aims to challenge this author, other students of children and the law, and even those who marginalize childhood, to take a fresh look at the role of children in law and society; to take children out of the compartment of childhood and examine the connection between adulthood and childhood; and to ask a new set of questions regarding the role of childhood in the political order. The next stage of this project, "The Political Child", will begin to form a positive theory of justice that will address children's agency, but may be more engaged with intergenerational and transitional phenomena uniquely related to the organization of a society around adulthood and childhood
