Active but not independent: the legal personhood of children

Abstract

ABSTRACT This article seeks to contribute to a theoretical framework for understanding the status of children as legal persons in Western legal systems. Analytic legal philosophers have done much work in analysing concepts relevant for understanding the legal status of children. However, they have usually not approached childhood as a topic that warrants investigation in its own right, distinct from both infancy and adulthood. The article presents two main arguments. It will, first, argue against the occasional claim – made especially by some scholars working in the civil-law tradition – that even infants have the legal capacity to bear duties under private law. The article challenges this conception: such duties are borne by the infants’ representatives, and infants should therefore be seen as purely passive legal persons. The article then turns to legal competences held by children. Insufficient attention has been paid to the idiosyncratic features of children’s competences. A new framework is offered, which distinguishes three categories of competences: independent competences, negative competences, and dependent competences. Independent competences enable their holder to effect a legal change that, ordinarily, cannot be prevented by others. The latter two types of competences are particularly relevant in the case of children.