Public Law & Legal Theory
The latter part of the twentieth century saw the near-universal recognition of the idea of children’s rights as human rights. At the same time, the conceptual basis for such rights remains largely under-theorized. Part of the aim of this Article is to draw on the insights of the “capabilities approach” developed by Martha Nussbaum in philosophy, and Amartya Sen in economics, in order to provide a fuller theoretical justification of this kind. In addition, this Article investigates the degree to which it will be justifiable, under such an approach, for international human rights law or national constitutions, to give special priority to children’s rights. It begins this task by first considering, and rejecting, potential justifications for such special priority based on the need to ensure the future self-reliance of children as adults and ideas about the special “innocence” of children; and, then, by developing two affirmative justifications for such special priority, based on the special vulnerability of children, and the special cost-effectiveness of protecting children’s rights. This Article also explores the degree to which these principles may provide a starting point for thinking about more general trade-offs between different rights claims, or claimants, under a capabilities approach.
Martha Nussbaum & Rosalind Dixon, "Children's Rights and a Capabilities Approach: The Question of Special Priority" (University of Chicago Public Law & Legal Theory Working Paper No. 384, 2012).