Rights, interests and reasoning in juvenile justice

Abstract

The central theme of the thesis is legal intervention in the lives of children. The underlying question is whether such intervention should be regarded as a violation of children's rights, as claimed by child-libertarians, or whether it is more appropriate to view it as a furthering of interests, in the manner of the advocates of protectionism. A coherence of theory and practice is regarded throughout as a necessary condition of achieving justice for children. Rights and analyses of rights are examined briefly as a preliminary step towards articulating a framework for a theory of children's rights. It is argued that such a theory must necessarily invoke children's interests. The concept of interests is examined in some depth and it is shown how any substantive theory of the interests of children must accommodate both "want-regarding" and "ideal-regarding" considerations. Such a view is held to gain considerable support from an analysis of actual reasoning about interests. The discussion now turns to an examination of the Scottish Children's Hearings System as illustrative both of the conceptual points already elucidated, and of the complexities involved in decision-making in a system in which interests are considered to be the paramount concern. In conclusion, the thesis examines the relevance of principles of justice in a setting which has now been characterised as necessarily open to dispute. Some practical implications are presented by way of a final 'testing' of the theoretical conclusions.