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Children’s Rights – a Defence of Hartian Will Theory

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This paper seeks to outline a framework for conceptualising children’s rights taking the central notion of empowerment underpinning Hartian will theory as its governing principle. At the same time it explores how factors such as the particular environments that children inhabit may operate to disempower children in a context in which rights are otherwise to be viewed in terms of Hartian will theory as empowering. An essential preliminary to the adoption of this approach is to challenge the interpretation of Hartian will theory (such as Neil MacCormick’s) that appears to suggest that children cannot have legal rights. It is argued that that interpretation of Hartian will theory is misconceived. It is also maintained (and this is argued to follow from the first misconception) that it is misconceived to hold that the weight of evidence of the existence of children’s rights – the undeniable existence of rights conferred upon children in both the domestic and international arenas – falsifies Hartian will theory as thus interpreted.

Affiliations: 1: The Law School, Robert Gordon University, Aberdeen, Scotland,


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