アメリカにおける子どもの権利論 : 「児童の権利に関する条約」未批准の原因分析を通して(II 研究報告)
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概要
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This paper aims to show the counteraction between two rights, social rights and civil/political rights. The former are rights to receive protection/assistance and the latter are rights to autonomy. To present the conflicts between these rights, we analyze the reasons why the United States of America doesn't ratify the CRC (Convention on the Rights of the Child). The first reason arises from 'entitlement theory,' which excludes social rights from the fundamental rights by defining them as entitlement to be gained through individuals' efforts and autonomy. The federal government strongly asserts this theory, hence the government, is not responsible for social rights such as vocational education, standard of living, and so forth. Furthermore, because the government has reduced the budget since the Reagan era, it is almost impossible to expand security policy to meet the requirements of CRC. The second reason is in the strict securing of civil and political rights. In the United States, it has been authorized since the Gauld case that a juvenile has the due process rights as one of the civil and political rights. This also implies that a juvenile is accountable for his/her crime as well as an adult. With the increase of atrocious juvenile crimes, the due process rights have become widely approved to suppress juvenile crimes. This tendency is typically seen in twenty-four states which still keep the juvenile death penalty system. The results of this analysis indicate that America has abandoned paternalism in compensation for child's autonomy. This policy, however, is appropriate only in the case that child has his/her own ability or autonomy. If this policy is applied automatically in all cases, it may bring disadvantage to a child. The Child's inability to earn, for instance, has to be clearly compensated by assistance of the government. Refusal of the government directly yields deprivation of child rights. We can thus conclude that partial autonomy can lead to an infringement on children's rights. Therefore, when shifting paternalism to child autonomy, it must be considered which is appropriate in each political case.
- 日本教育行政学会の論文
- 1996-09-27