Children's Rights as Communication: Reflections on Autopoietic Theory and the United Nations Convention
| Date | 01 May 1994 |
| Published date | 01 May 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01947.x |
Children’s Rights as Communication: Reflections
on
Autopoietic Theory and the United Nations
Convention
Michael
King”
Introduction
In
J.M.
Barrie’s play (and Walt Disney’s film),
Peter
Pun,
Tinkerbell is a
powerful but vulnerable fairy. In the play (though not the film) she is invisible;
only her tinkling voice makes us aware of her presence. She is powerful because
she can perform magic, even to the point of changing the whole course of the
story. She is vulnerable because her very existence depends upon others believing
in her. At one time, when Tinkerbell has drunk the poison intended for Peter and
her tinkling is growing faint, the other characters in the play have to exhort the
audience to shout out that they believe
in
fairies and
so
restore the ailing Tinkerbell
to health.
The United Nations Convention on the Rights of the Child may, like Tinkerbell,
possess magical powers to change children’s lives, if people (and national
governments) collectively believe in children’s rights as legal communications and
feel obliged to act on that belief.’ This notion of human rights, and more
particularly children’s rights, as communications rather than as instruments of
power and obligation tends to escape the attention of both detractors and
supporters of the Convention, who concentrate their minds on policy and
philosophical aspects
of
rights for children.2 Yet scholarly debates on human
rights should not be simply a matter of rights supporters versus rights sceptics.
Autopoietic theory offers a different way of ‘taking legal rights seriously.’ Its
unique contribution to the ongoing debates about the role of law in the modern
world has been to move the focus of attention away from the realms of philosophy
and policy by conceiving the legal system as a self-referential generator of
communications about the social world.3 As such, the theory is able to take up
the concept of rights and to trace its evolution and transformation across different
social communicative systems. The aim of this article is to go some way towards
remedying the gap in the literature on children’s rights by examining how law
becomes important for transforming the concept of rights from dignified
statements and ‘manifesto
right^'^
into rules designed to regulate relationships
*Centre for the Study
of
Law, the Child and the Family, Brunel University, UK.
I
should like to thank David Bradley, Alison Diduck and Massimo La Torre for taking time to comment on
draft versions of this article, and Gunther Teubner for his comments during our discussions on the original
idea that gave rise to the article.
1
See Thkry, ‘Nouveau droits de l’enfant: la potion magique?’
Esprit
(1992)
pp
5-30.
2
See, for example, two major collections of papers
on
children’s rights: Alston, Parker and Seymour
(eds),
Children, Rights
and
the
Law
(Oxford: Clarendon Press,
1992);
Freeman and Veerman
(eds),
The
Ideologies
of
Children’s Rights
(Dordrecht: Martinus Nijhoff,
1992).
3
See Luhmann, ‘The Unity of the
Legal
System’ and ‘Closure and Openness: On Reality in the World
of Law’ in Teubner
(ed),
Autopoietic
Law
(Berlin: de Gruyter,
1987)
pp
12-35
and
335-348;
‘Law
as a Social System’
(1989)
83
Northwestern Univ LR
136;
‘Some Problems with “Reflexive Law”’ in
Febbrajo and Teubner
(eds),
Law,
State and Economy
as
Autopoietic Systems
(Milan: Giuffrk,
1992)
pp
390-415;
Teubner, ‘How the Law Thinks: Toward a Constructivist Epistemology of Law’
(1989)
23
Law
&
Soc
Rev 23, pp
727-757;
Law
as an
Autopoietic System
(Oxford,
1993).
4
See,
for example, Feinberg,
Rights, Justice
and
the
Bounds
of
Liberty (Princeton: Princeton
University Press,
1980).
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1994
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between children and adults within social organisations. This reconstruction of
children’s rights within the communicative system of law may well have
advantages in drawing public attention to the suffering and powerlessness of
children’s lives. Yet, as the recent
Initial Report
of
the United Kingdom
Government to the United Nations Committee
on
the Rights
of
the Child
bears
witness, its disadvantage is that the demand for
legal
remedies for children may
provoke little more than formalistic responses from governments, which have little
impact upon this suffering and powerlessness.
A
number of points need to be considered as a general backcloth to the ensuing
discussion of children’s rights. Let us begin with those newspaper and television
news stories,s and charity circulars which bombard the living rooms of the
Western world with pictures of children’s suffering in many different (mostly
impoverished) parts of the world as the result of natural disasters, wars, genocide
and poverty. Children, as the innocent victims of all such disasters, become the
focus of attention for relief programmes and the charitable campaigns to raise
money for such programmes. Add to this the increased awareness of the existence
of physical and sexual child abuse in Western countries, especially the United
States and United Kingdom, which have resulted in highly-publicised court trials
and public inquiries.6 These horrific images of children’s suffering, both here
and abroad, are projected into the society’s collective consciousness at an
unprecedented volume and intensity to the point when we come to see childhood
for many of the world’s children as a period of vulnerability, deprivation and
misery. It is difficult not to be moved and want to do something to make life better
for the world’s innocent victims both now and in the future. But how?
The massive and rapid changes in the world’s political and economic map over
the last few years have added to the suffering of children and made it increasingly
difficult to find ways of providing the peace, stability and prosperity that they need
to enjoy a childhood relatively free of misery. These upheavals have been
emulated on a smaller, but no less disturbing scale, at a local level by equally rapid
changes in people’s social and economic expectations. Mass unemployment,
marital instability, homelessness, the collapse of the housing and stock markets,
the rise in crime statistics and illegal drug use are all brought home to those of us
who live in large cities by the daily experience of seeing young men and women
sleeping rough (many of whom are, of course, still legally ‘children’). Whatever
the causes of these phenomena, they have inevitably helped to create in us strong
feelings of insecurity and anxiety about our children’s future.
Nor is there any easy assurance to be found in traditional state institutions. The
obsessive and compelling way in which the mass media homed in on child sexual
abuse, on the one hand, and the removal of children from their families by social
workers, on the other, presenting them as little less than the twin social scourges of
the late twentieth century, suggests that even that safe haven, the family, and the
very people society had designated to assist families and protect children could no
longer be trusted, but were themselves purveyors of evil and abusers of power.
The other major change in society’s vision of children which is relevant appears
at first glance to move in entirely the opposite direction. It concerns the evolution
of children as ‘citizens.’ This has occurred mainly in those countries where
5
The story of the wounded child, Irma, who was rescued from
almost
certain
death
in
a Bosnian
hospital by
the
British Government and given a series
of
life-saving operations at Great Ormond Street
Hospital is one among many examples.
6
The Cleveland and Orkney affairs are the two most recent examples.
3
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