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7 Yale Hum. Rts. & Dev. L.J. 1 (2004)

handle is hein.journals/yhurdvl7 and id is 1 raw text is: Article A Positive Right to Protection for Children Tamar Ezert Concepts that are useful in other areas of human rights break down in the context of children. Because children are dependent on adults for their development, they are an anomaly in the liberal legal order, which views negative rights as implying fully rational, autonomous individuals that can exercise free choice. This Article argues for a positive right to protection for children, rooted in dignity, by probing the problematic nature of the positive/negative rights duality and exploring alternate legal approaches to protecting children 's rights in both international and comparative law. The adoption of positive rights for children would help assure adequate protection, which the current American legal regime, as typified by the case DeShaney v. Winnebago County Department of Social Services, fails to do. I. INTRODUCTION Children are an anomaly in the liberal legal order. Conceptualizations that work in other areas of human rights break down in the context of children. Children defy the conventional view of rights as implying fully rational, autonomous individuals who can exercise free choice and require freedom from governmental interference. Lacking fully developed rational capabilities, children are dependent incompetents by definition. Furthermore, unlike the term individual, the term child does not stand alone from all others, but necessarily implies a relationship. The founders of liberal rights theory perceived children to be outside the scope of their philosophies. John Stuart Mill' excluded children from t Fellow, The International Women's Law Clinic at Georgetown University Law Center, 2004; J.D. Harvard Law School, 2001; Editor-in-Chief, Harvard Human Rights Journal, 2001; B.A. Stanford University, 1997. 1 John Stuart Mill, an English philosopher who lived from 1806-1873, wrote about the