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Legal Right and Social DemocracyEssays in Legal and Political Philosophy$
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Neil MacCormick

Print publication date: 1984

Print ISBN-13: 9780198255024

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198255024.001.0001

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Children's Rights: a Test-Case for Theories of Right

Children's Rights: a Test-Case for Theories of Right

(p.154) 8. Children's Rights: a Test-Case for Theories of Right
Legal Right and Social Democracy

Neil MacCormick

Oxford University Press

There are two competing theories as to the nature of rights: the theory which says that having a right of some kind is to do with the legal or moral recognition of some individual's choice as being pre-eminent over the will of others as to a given subject-matter in a given relationship, and the other theory which says that having a right is having one's interests protected in certain ways by the imposition of normative constraints on the acts and activities of other people with respect to the object of one's interests. Between various manifestations of the will theory and the interest theory, there has been a long-running series of test matches. This chapter discusses a test-case, in the light of which it shows the untenability of the will theory, in place of which the chapter suggests as an alternative a theory more along the lines of traditional interest theories.

Keywords:   children's rights, normative constraints, will theory, interest theory, test-case

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