CYIL 2012

THE RIGHT OF THE CHILD TO LIBERTY AND THE ADMINISTRATIVE DETENTION … act, providing it is not coercing or restraining in relation to others or intended to be to their harm . An individual is not commanded to refrain from such conduct. On the contrary, the individual is subject to double permission, both positive and negative. Hart’s thesis of liberty as a natural right involves the development of an internal triadic relationship . This is nothing new. 3 The first (personal) element in this relationship is the individual having this right, who is either free or unfree. The second element of the triadic relationship is jointly realized by coercion and restraint. And finally the third element is that which an individual is free to do and which on the other hand he cannot freely do. This third element involves the presence of choice. 2.1 A person exercising freedom With regard to the first, i.e. the personal element of liberty, Hart seems to express himself inclusively, for he uses the phrase the equal right of all men . 4 His theory is restrictive in the personal sense, i.e. ad hominem . It is carefully set within the conservative tradition of the natural doctrine of liberty. 5 Everybody has a right to be free as one of their natural rights, in so far as they are capable of choice . 6 An individual’s right is then protected by the exercise of choice. 7 A basic characteristic of the possessor of this natural right is his capacity to make a choice as a free act. 8 Hart does not accord children the ability to make a free choice. Children are natural members of human society. They are human beings and childhood is a structural form of human life. However, children are not capable of choice, which is an assumption that makes it impossible for them to have a right to be free. 9 T heir thinking can be described as irrational, illogical and egocentric. Moreover it can be argued that children do not separate reality from fantasy and do not distinguish conceptually between cause and effect. This thesis follows the argument that children have a cognitive deficit. In comparisons between the generations, children lack the abilities that adults possess. In comparison with adults, children appear as a configuration of deficiencies. 10 In other words, children appear to be just defective adults to adults themselves. 11 If children are not capable of choice they must inevitably be represented, primarily by their biological parents. 3 MACCALLUM, G., Negative and Positive Freedom. In: MILLER, D. (ed.), Liberty . Oxford: Oxford University Press, 1991, p. 102. 4 HART, H. L. A., op. cit. 1, p. 175. 5 LOCKE, J., Dvě pojednání o vládě. Praha: Nakladatelství československé akademie věd, 1965, pp. 178-179. 6 Ibid., pp. 175-176. 7 ARCHARD, D. W., “Children’s Rights”, The Stanford Encyclopedia of Philosophy (Summer 2011 Edition) , ZALTA, E. N. (ed.), URL = . 8 CHRISOULA, A., Dynamic Choice, The Stanford Encyclopedia of Philosophy (Fall 2008 Edition) , In: ZALTA, E. N. (ed.), URL = . 9 Committee on the Rights of the Child, General Comment No. 12 (2009), The right of the child to be heard, CRC/C/GC/12, 20 July 2009, p. 9. 10 MATTHEWS, G., “The Philosophy of Childhood”, The Stanford Encyclopedia of Philosophy (Winter 2010 Edition) , ZALTA, E. N. (ed.), URL . 11 GOPNIK, A., How Babies Think. http://www.scientificamerican.com/sciammag/?contents=2010-07.

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