Childhood and the law.

Fitz, John (1986). Childhood and the law. PhD thesis The Open University.

DOI: https://doi.org/10.21954/ou.ro.00010109

Abstract

Minority and infancy are technical legal terms signifying legal subjects and statuses which are non-adult, less than 'full' legal persons because they are below the age of minority. How the law creates and sustains differences between the category adult and non-adult, between adulthood and childhood, how age divisions are made concrete and socially significant through the differential distribution of legal rights, protections, capacities and disabilities, provides the focal point of this work.

Drawing on recent theories of ideology, subjectivity and discourse analysis, we explore how the law, in defining subjects capable of participating in the law-making process, responsible enough to be governed by its rules, and with the attributes to initiate legal actions, can also, by a process of exclusion, constitute the subjectivity of 'the child'. The age lines bounding the child from the adult are arbitrary and historically transitory, they also apply differentially across genders. They are extremely useful because they tell us a great deal about the legal assumptions made about the rationality, responsibility and competence of children. When we begin to link age lines, with cognition/competence and legal capacity/disability across different branches of the law, we are offered a variety of definitions as to what is to count as adult and minor. The differing ages at which certain rights, obligations and responsibilities may be assumed provides us with the means of identifying the particular social relations and interests which each branch of the law privileges and preserves.

To this end, we explore in turn; the legal conception of infancy and minority, conceptions of consent and discretion and the effect of the age of majority; the system of inheritance as a process by which family statuses (crucially adults and minors) are preserved and reproduced over time; the social relations guardianship and parenthood and family membership and how these have become an intimate concern of the judiciary and the state; finally, the process by which children were made no longer subject to the full sanctions of the criminal law. These aspects of inter-generational relations are discussed within the context of the English legal system.

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