6 Children’s Rights: Liberationist and Standard Liberal Approaches

Rights protect fundamental interests, which may relate to well-being or agency and can be ensured as freedoms or achievements, according to Amartya Sen. Evaluating the specific rights an individual is entitled to requires considering how their constitutive frameworks may influence which interests are legitimate grounds for rights. This chapter and Chapter 7 explore the main interpretations of these foundational concepts in the context of children’s rights. The potential conflict between freedoms and achievements demands careful consideration of their trade-off to ensure that guaranteed rights genuinely protect an individual’s interests without causing harm.

Standard liberal rights discourses tend to prioritise freedom interests over achievement interests, as liberals generally presume in favour of freedom when assessing what individuals are owed (e.g., Mill [1859] 1961). However, throughout the history of liberalism, children have been overwhelmingly considered as an exception to this presumption. Owing to their perceived lower cognitive, rational, and emotional abilities, children are often deemed unable to properly exercise freedoms. Therefore, it has been argued that their fundamental interest lies in having their well-being and achieved states of being protected. Standard liberal accounts of children’s rights often take this stance, suggesting that children’s interest in freedom is outweighed by their interest in having their achievements safeguarded. In contrast to Standard Liberal views, child liberationists present an account of children’s rights that rejects the idea of treating children differently from other individuals under the basic principles of liberal justice. Liberationists argue that our evaluation of the interests that form the basis of children’s rights should be guided by the same presumption in favour of freedom as it is for adults. If restrictions on freedom and an asymmetric rights allocation are considered legitimate, Liberationists contend that an equal standard should be applied to assess their legitimacy in both adults’ and children’s cases.

This chapter delves into the role that the principle of basic liberal equality plays in evaluating children’s rights by examining both the Liberationist and Standard Liberal approaches. It aims to demonstrate that neither approach fully aligns with the conditions set by the principle of basic liberal equality. Liberationists tend to overlook the significance of incompetence and harm in justifying differential treatment. The principle of basic liberal equality does not demand absolute equal treatment but allows for restrictions based on morally relevant differences in individuals’ constitutive frameworks (their embodied, temporal, and spatial conditions). Liberationists fail to account for how incompetence in exercising freedoms justifies restriction of rights and how potential negative consequences legitimise limitations, all while adhering to the principle of basic liberal equality. I argue that although these critiques present obstacles to the Liberationist position of granting all individuals full freedoms as rights, they do not address the Liberationist core claim: the need to apply an equal evaluative standard for the legitimate restrictions of freedom to all individuals. By adopting an equal standard, we treat all individuals (including children) as agents, granting them equal consideration when determining legitimate restrictions of freedom. This approach aligns with the core principles of liberal theory and ensures that children’s rights are not unreasonably limited during childhood.

This chapter begins by introducing the Liberationist approach to children’s rights and emphasises their support for an equal standard in evaluating rights. It then delves into two prominent critiques found in the literature, namely the harm and incompetence critiques, examining their relevance and applicability. Next, the chapter turns its attention to the Standard Liberal view, analysing three distinct ways in which it has been defended: differential, gradual, and in-trust. It discusses the concerns associated with each of these approaches and their implications for the allocation of rights. Ultimately, the chapter evaluates the legitimacy of the Standard Liberal view, acknowledging its endorsement of harm and competence acquisition as key considerations in rights allocation. However, it also critiques its failure to account for the diverse ways in which these factors manifest, leading to potential discrepancies in evaluating the fundamental interests that should be safeguarded as rights.

Child liberationists emerged during the emancipation movements of the 1960s and 1970s, incorporating child liberation into the broader fight against social oppression. Their core assertion was the urgent need for a radical re-evaluation of children’s rights. Central to their argument was the critique of the concept and institution of ‘childhood’, which they considered to be unjust.¹ They contended that the current process of rights allocation arbitrarily and unjustly restricts the freedoms that children should rightfully possess and exercise. Embracing the principle of basic liberal equality, which upholds a presumption of freedom and equal treatment for all individuals, child liberationists argued that the prevailing practice of limiting children’s freedom to exercise certain fundamental rights was inherently unjust. To uphold equal respect and dignity for all individuals, and to prevent undue intrusion by the state on personal matters, they proposed applying an equal standard to assess the legitimate treatment of everyone, including children. Thus, they advocated for granting children the full range of rights possessed by the adult population, demanding equal standards for rights evaluation, challenging biased assumptions about children’s competence, and incorporating children within the liberal presumption of freedom.

Liberationists argue that children are often treated as unequal members of society, not necessarily because they have different rights as individuals, but because the standard used to determine which rights they are entitled to differs from that of adults. The rigid and arbitrary institutionalisation of the social group labelled as ‘children’ assumes that there is an inherent and justifiable difference between children and adults that warrants their differential treatment. If any legal distinction can be morally justified, it must be based on the application of an equal standard to assess who, as an individual, is entitled to specific rights. This aligns with the ‘Adaptive Conception of “Childhood”’ discussed earlier (see Chapter 4), which emphasises the importance of understanding and accounting for an individual’s embodied, temporal, and spatial constitutive frameworks to ensure equal treatment.

Liberationists argue that this double standard becomes evident when evaluating the fundamental interests that underpin the rights of children compared with those of adults. For adults, the evaluation is based on a presumption of freedom, considering how their interests in well-being and agency achievements and freedoms relate to each other. In contrast, for children, the evaluation is grounded in a presumption of achievement. While adults are assumed to benefit from the freedom to self-determine their own affairs, it is believed that children’s fundamental interests are better served by restricting their freedom to self-determination (Farson 1974, 9). Liberationists criticise this biased and harmful evaluation, questioning the underlying assumption that children’s interests predominantly lie on the achievement side of the spectrum, thereby denying them a justified claim to freedom as it is considered not to be in their best interest.

The achievement-focused approach to children’s rights, as critiqued by Liberationists, is a double-edged sword. On the positive side, it provides children with essential protections and securities, shielding them from exploitative work, violence, and ensuring access to basic necessities, thereby elevating their well-being achievements (Holt 1974, 10). However, this approach also comes at a cost: it largely excludes children from having their freedoms protected as rights, creating an apparent injustice for both children and vulnerable adults alike. Some children may be deprived of the opportunity to exercise certain agency and well-being freedoms, while many vulnerable adults may not have various well-being achievements safeguarded (see Herring 2016).

While acknowledging the potential advantages of protecting well-being achievements for children, adhering to the principle of basic liberal equality requires justifying why freedoms are overridden and why an emphasis on achievements is preferred when assessing the fundamental interests of children. If the presumption of freedom deems it illegitimate to limit an adult’s freedom in the name of well-being, the same standard should apply when evaluating the rights of children (Farson 1974). If we hold equality as a foundational assumption, then there is no apparent justification for applying a different standard to evaluate the legitimate interests of children compared with adults; both should be assessed using an equal standard. As Farson questions, how can we ascertain whether a child has a fundamental interest in exercising freedoms if we have never afforded them the opportunity to do so? (Farson 1974, 8).

The central argument against granting equal rights to children revolves around the acquisition of competences typically associated with adult humans, such as rational capacities, reasoning abilities, and a full understanding of consequences and responsibilities, which James Griffin termed ‘full personhood’ (Griffin 2002). It is contended that these competences are not yet fully developed in children, thus justifying the limitation of freedoms that require their exercise. In response, child liberationists have presented various counter-arguments.

Firestone (1970) provides a compelling example to challenge the assumption that children lack the rational and competent agency associated with adults. By examining children who exist outside the confines of the institution of childhood, such as street-working children, she sheds light on children’s potential as capable and independent individuals.² These children operate outside the usual processes of segregation, socialisation, and normalisation, allowing them to navigate urban life with proficiency both individually and collectively. Their ability to sustain self-sufficiency through resilience demonstrates, she argues, that children can possess rationality and competence even at a young age. Firestone aims to demonstrate that competences in children should not be under-estimated or assumed to be inherently limited owing to their age; she recognises and respects the true condition of children based on their individual constitutive frameworks, rather than on assumed characteristics (Firestone 1970, 100–1).

Farson (1974) and John Holt (1974) present further compelling arguments challenging the assumption that children lack competence and rationality. Farson acknowledges that while it is difficult to definitively determine the current level of children’s competence, this does not imply that they would not behave differently if they were not subject to institutionalised norms (Farson 1974, 29–34). Holt, in a similar vein, critiques the exclusive focus on protecting children’s well-being achievements, arguing that it hinders our capacity to evaluate them objectively. He criticises the notion of treating children as ‘childish’ merely because societal norms expect them to be so. Holt contends that the restriction of children’s freedoms by adults, based on a presumption against freedom, hinders their development and forces them to conform to preconceived notions of childhood (Holt 1974, 5). This institutionalised constraint prevents children from realising their full potential and exercising their freedoms in diverse ways. The oppressive binds of mythification and institutionalisation limit children’s agency, contributing to the perpetuation of a reified and restricted understanding of childhood (Holt 1974, 4).

Howard Cohen’s position (Cohen 1980) challenges the notion that individual competence is an absolute prerequisite for exercising freedom rights. Just as adults often rely on the expertise of competent professionals (lawyers, doctors, accountants) to exercise certain freedoms, Cohen suggests that children could also be entitled to borrow the competence of better-positioned individuals to exercise their freedoms (Cohen 1980, 49–57). This perspective critiques the exclusive focus on competence as the sole determinant of right-holding, as discussed in the section ‘Interest Theory’ in Chapter 5. Federle (1993, 1022) argues that fundamental interests can justify the protection of certain freedoms, even if individuals need to borrow others’ competences to exercise them. While Liberationists may have varying views on the specific relationship between a child’s competences and their rights, they all advocate for revising the standard presuppositions that currently guide the restriction of freedoms for children. The Liberationist position highlights the importance of re-evaluating the criteria for determining which freedoms are restricted and how they are allocated, questioning the foundational role that competences should play in our understandings of right-holding.

The liberationist position strongly advocates for equal treatment, asserting that there should be no initial reason to differentiate between adults and children when it comes to rights and freedoms. According to Holt, children should have the same broad rights as adults (Holt 1974, 1), including the freedom to choose whether they want to remain in their ‘walled garden’ of childhood or break free from it.

The Liberationist position advocates for equal rights for children, meaning that the law should protect their decisions to exercise specific rights, just as it would for adults (Holt 1974, 57). If a child wishes to leave their parents’ home, the law should support and uphold this right, without forcing them into any particular decision. However, the Liberationist position does not explicitly address whether adults should also have the freedom to choose to remain in ‘childhood’ or bear adult responsibilities and freedoms.

This omission presents a challenge for Liberationists. If they adhere strictly to their equal standard, they would have to allow adults the freedom to choose to escape from their adult responsibilities and seek the protections of ‘childhood’. This could lead to complicated and problematic issues in practice. On the other hand, if they concede to the necessity of separate standards for adults and children in certain cases, it could weaken their principled claim for equal treatment. In navigating this dilemma, the Liberationists may need to provide further clarification on how their equal standard applies to both children and adults and whether certain exceptions or modifications are necessary for each group while maintaining their principled stance on equal treatment.

Richard Farson, in this respect, considers that the fundamental shift made by Liberationist children’s rights is not necessarily tied to the granting of the various ‘adult’ rights to children, but rather to the protection of a fundamental right to self-determination that grounds any other freedom that a person may have:

Children, like adults, should have the right to decide the matters which affect them most directly. The issue of self-determination is at the heart of children’s liberation. It is, in fact, the only issue, a definition of the entire concept. The acceptance of the child’s right to self-determination is fundamental to all the rights to which children are entitled. (Farson 1974, 27)

Children are neither forced to behave as adults nor compelled to forgo their childhood; they are simply allowed and free to determine their own affairs. Whether this means deciding to stay within the traditional spheres of childhood or taking on the rights and responsibility of economic and social independence, it is for the child to decide. If it is acceptable for adults it should be acceptable for children, and vice versa. Ensuring that any person, regardless of how young or old, can self-determine their own life should be the core concern of any liberal polity. Mere inability to exercise a right is no justification for withholding it; on the contrary, the relative weakness of those incapable of exercising certain rights implies that society should take even greater care in ensuring that it is protected and safeguarded (Farson 1974, 32).

The Liberationist strict-egalitarian approach to children’s rights offers an elegant and straightforward argument for equal rights, avoiding the moral challenge of excluding a particular group from exercising fundamental human freedoms. By upholding the presumption on the side of freedom and a strict interpretation of the principle of equal treatment, Liberationists advocate for equal rights for children in a way that aligns with basic liberal principles, making it difficult to counter at a principled level. However, when considering the practical implications of this approach, concerns arise, especially if we account for vulnerability, developmental processes, and embeddedness as structural features of an individual’s condition. Critics of the Liberationist view raise two main concerns: first, the lack of clarity in how competences should be considered in granting rights to individuals; and secondly, the potential consequentialist implications of the Liberationist approach on children’s actual freedom and the protection of their other fundamental interests.

David Archard provides an important critique to certain Liberationist arguments, particularly regarding competence acquisition and its implications for equal treatment (see Archard 2004, chapter 5). He points out that Liberationists present two core arguments that appear inconsistent: (1) they claim that children’s competences may be more developed than commonly assumed, thus warranting the exercise of fundamental ‘adult’ freedoms; and (2) they argue that (1) justifies children’s entitlement to all rights that adults possess protected equally (Archard 2004, 74).

Archard contends that the leap from (1) to (2) involves a fallacious step. Acknowledging that children may possess greater competence than previously thought does not necessarily entail granting them equal rights with adults. Instead, it calls for redressing biases and assumptions about children’s competences, which may demand a potentially higher level of freedom relative to their actual condition. However, it does not automatically justify providing children with the same rights as adults always, especially if they lack the required competences to exercise those freedoms (Archard 2004, 75). Accounting for an individual’s constitutive frameworks demands understanding the diversity in the human condition and how this affects our treatment as subjects of justice. The core of the critique, in this respect, is that recognition of individuals as equals through the use of an equal standard is not the same as provision of strict equal rights to everyone.

Indeed, there is no inherent injustice in restricting rights to individuals who lack the necessary competences to exercise them, as long as a fair and comprehensive evaluation of their actual condition and competences is conducted (Archard 2004, 90). The principle of equal treatment, which forms the basis of the Liberationist intuition, does not imply treating every individual in the same manner regardless of their specific circumstances. On the contrary, it demands that each individual is treated according to their particular situation (Archard 2004, 87–8).

For instance, consider a 14-year-old girl who possesses the competence required to vote and act as a full political citizen. In this case, granting her the same freedom rights tied to these competences, which are guaranteed to all others with the same competence, could be justified. However, this does not automatically mean that these freedom rights should be guaranteed to all children, including infants, without considering whether they possess the relevant competences or not.³ If part of the Liberationist argument is founded on the unfair under-estimation of children’s actual competence to exercise certain rights, then it follows that rights are indeed connected to competence. Consequently, those who lack the necessary competence could be legitimately excluded from certain rights. Evaluating the actual competences of each individual is essential to ensure that rights are allocated appropriately and justly.

Laura Purdy’s critique of the Liberationist view raises important considerations regarding the potential harm that might result from its strict equal distribution of rights (Purdy 1992, 9). While the principle of equal rights for children might seem appealing at a principled level, its practical implementation and real-life consequences must also be considered to ensure that it does not inadvertently harm the very individuals it aims to protect (Purdy 1992, 9).

Purdy highlights that the impact of such a liberationist system on both society as a whole and children in particular should not be overlooked when evaluating the justification for equal rights and freedoms for children (Purdy 1992, 15, 190). The social environment in which an individual is embedded plays a significant role in shaping their experiences and opportunities. Thus, it is crucial to consider the broader implications of granting equal rights to children within the context of their social surroundings.

As discussed previously (see the section ‘Interest Theory’ in Chapter 5), rights serve as instruments to protect fundamental human interests. The justification for conferring a specific freedom as a right hinges on whether it effectively safeguards an individual’s fundamental interest. While freedom is a fundamental principle in liberal theory, it does not mean that all freedoms should be granted as rights without considering their potential impact on an individual’s overall interests. If conferring a certain freedom right poses a significant risk of harm to the person’s well-being or other fundamental interests, it may be justifiable to not grant them that freedom as a right (Purdy 1992, 11). The protection of interests should take precedence over the mere preservation of freedoms.

Purdy argues that granting equal rights to children may not be the best approach to protect their fundamental interests. The potential harms resulting from conferring certain rights to children, especially those linked to their lack of competence to exercise them, can outweigh the benefits. Instead, she suggests that the priority should be on protecting children’s non-freedom interests, particularly those related to their well-being achievements, from potential harm. For instance, consider the case of an eight-year-old child having the right to self-determine their economic life, relationships, health, or nutrition. While this blanket permission may seem to expand their freedom, Purdy contends that it could lead to significant setbacks in their overall interests (Purdy 1992, 17, 217). Allowing a child this level of autonomy might expose them to exploitation in the labour market, potentially harmful personal relationships, and the risk of making uninformed decisions about their health or nutrition.

Purdy’s argument aims to highlight the complexity of balancing freedom and protection in the context of children’s rights. While granting more freedoms to children might appear to be in line with a strict egalitarian approach, the potential risks to their well-being and overall interests need to be carefully considered. Protection from harm and ensuring their well-being achievements may require certain restrictions on their freedoms to prevent adverse consequences.

Purdy (1992) posits that while a few exceptional children might benefit from the possession of equal rights, standard intuitions and evidence reveal that the overall interests of the average child would be significantly harmed by such an approach. This claim considers not only the child’s present well-being, but also how their current freedom could impede their development of competences and have long-term repercussions on their fundamental interests (Purdy 1992, 44, 88). For instance, granting a toddler the freedom to choose all of their meals might lead to irreversible eating disorders and compromised health, affecting both their present and future well-being. Allowing a child to decide whether or not to attend school in the present could hinder their understanding of the value of formal education for their long-term interests. Similarly, providing children with full freedom in contracts and economic independence might expose them to high risks of exploitation and result in unanticipated consequences owing to their limited understanding of potential ramifications (Purdy 1992, 214–15). Purdy argues that temporarily safeguarding children from themselves and others by restricting certain freedoms is a prerequisite for ensuring genuine freedom in the future.

The concerns raised by Purdy and Archard against the Liberationist view shed light on the complexities of theorising children’s rights. Theories of children’s rights must not only consider the principle of equal treatment, but also account for the individual variations in children’s constitutive frameworks in order to assess appropriate treatment. A strict equal distribution of rights may not be practical or justifiable given the diverse condition of individuals. Moreover, Purdy’s emphasis on the potential harms that equal rights might pose to a child’s overall well-being and future development highlights the tension between prioritising the protection of their fundamental interests over the strict application of equal rights. Granting certain freedoms without considering vulnerabilities, developmental needs, and external conditions could lead to unintended negative consequences and compromise long-term interests. A comprehensive theory of children’s rights should encompass an understanding of the particularities inherent to each individual, such as their developmental processes and the social environment in which they are embedded; recognising this diversity will enable a more nuanced approach to defining rights and better safeguard fundamental interests.

I argue in Chapter 4 (‘An Adaptive Conception of Childhood’) in favour of the importance of recognising the morally relevant features of individuals when striving for equality. Indeed, achieving true equality requires a comprehensive understanding of the unique and particular characteristics that define each individual’s status and condition. Embodied vulnerability, dependence on others, and embeddedness in specific social environments are essential factors that influence the appropriate treatment and allocation of rights. A strict egalitarian approach, as endorsed by the Liberationist view, may overlook the diversity in constitutive frameworks and inadvertently lead to unequal outcomes. By considering variability and acknowledging the distinct structural variables that shape individuals’ lives, a more just and equitable allocation of rights can be achieved. Equality should not be understood as a one-size-fits-all approach, but rather as an inclusive and flexible framework that considers the complexity of individual lives and positions.

I contend that despite the valid critiques raised earlier, they do not address the core claim made by the Liberationist approach to children’s rights: to challenge the use of a double standard in evaluating the treatment of children and adults. Acknowledging the variability in rights based on individual competences and potential harm does not contradict the Liberationist principle that an equal standard should be applied to assess everyone’s treatment fairly. Currently, our legal system employs a double standard in judging the capacities, rights, and freedoms of adults and children. The latter are assumed to be incapable and unfree until proven otherwise, while the former are presumed capable and free until proven otherwise. This dual approach lacks a clear justification and a principled reason.

The Liberationist perspective advocates for an equal standard in the assessment of legitimate treatment for all individuals, regardless of age. By doing so, it challenges the arbitrary distinctions imposed between children and adults and calls for a more consistent and just evaluation of rights and freedoms. Children should not be automatically regarded as less capable or deserving of rights; instead, they should be given the opportunity to demonstrate their competences and have their interests protected on equal terms with adults.

Defending an equal standard does not automatically lead to a strict egalitarian allocation of rights. Rather, it aims to treat individuals equally unless there are morally relevant differences that justify different treatment (Cohen 1982). Since rights are grounded in particular interests, the evaluation of those interests varies not across the adult–child line, but from person to person based on their unique constitutive frameworks. James Dwyer aptly points out that ‘[e]‌qual consideration of their respective interests might actually compel disparate treatment, if they have very different interests or different characteristics that dictate different means of satisfying similar interests’ (Dwyer 2011, 12). The central goal of treating individuals equally is to protect their fundamental interests on an equal basis, not necessarily their rights. Therefore, differential allocation of rights can be justified if it is essential to ensure equal protection of interests. Basic equality does not demand strict uniformity in treatment.

In light of this, I believe a revision of the Liberationist position is necessary. While maintaining the principled need for an equal standard to evaluate the legitimate allocation of rights to individuals, we should also consider variations in entitlements based on an individual’s unique condition. By considering the specific circumstances and needs of each person, we can better assess what constitutes fair and just treatment for all. This approach allows for a more nuanced understanding of equality, in which equal consideration of interests is prioritised over a rigid application of rights.

A general consensus exists in the contemporary literature regarding the flaws of the Liberationist position. If rights are supposed to protect an individual’s fundamental interests, then the inclusion of certain basic achievements (especially well-being achievements) in the case of highly vulnerable, dependent, and incompetent individuals is necessary.⁴ By not taking into account children’s particular proneness to harm and their varied inabilities to make effective use of many rights, one cannot make sense of some of our most basic intuitions regarding the particular protections that are owed to children. Their condition as especially vulnerable and dependent individuals imposes a duty on others to ensure that the basic interests that stem from their condition are protected and insured (Lansdown 2005; Schweiger and Graf 2015, chapter 2).

However, a concern with children’s well-being should not be blind to the role that agency and freedom play as relevant interests in a person’s life. Children are no longer considered mere property of their parents or the state. They are recognised as individuals with their own rights and agency, entitled to express their concerns and have a say in matters that affect them. Recognising children’s status as moral and social actors has become a fundamental principle in the field of children’s rights (Freeman 2020).

The dual objective of safeguarding children from vulnerabilities and promoting their participation can create tensions and conflicting conclusions (Archard 2004, 60). While focusing on children’s well-being and ensuring their achievements portrays them as passive beneficiaries, emphasising their participation and freedoms treats them as active agents in their lives. This tension extends to the content and exercise of these rights, often leading to conflicts in fulfilling their interests. Protecting a child’s well-being achievements as fundamental rights may clash with their agency and freedoms, and fostering their freedoms may impact their achievements negatively. Standard Liberal theories on children’s rights have sought to address this tension and find a way to acknowledge children’s claims to both freedoms and achievements while considering the unique aspects of childhood.

The Standard Liberal view on children’s rights is examined through three prominent models: Brighouse’s Differential, Brennan’s Gradual, and Feinberg’s In-trust approaches. While each model presents a different perspective on how to evaluate the relationship between freedoms and achievements during childhood, they all agree on the significance of harm avoidance and incompetence in determining the trade-off when deciding which well-being and agency freedoms and achievements should be protected as rights.

Harry Brighouse’s approach to children’s rights considers that agency is a matter of a person’s life with utmost importance, but that, owing to the incapacity of children to properly exercise agency freedoms, we must consider that their agency rights (understood in the sense of all liberties and rights that come with agency; i.e., freedom of expression, religion, conscience, voting rights, etc.) should be guaranteed only to the adult population (Brighouse 2002). Although children have present and future well-being and agency interests, the potential risk of their present agency negatively impacting their future agency and well-being calls for restricting their present agency as a fundamental interest protected by rights (Brighouse 2002, 45; Brighouse and Swift 2014, 61–2).

According to Brighouse, children should only be granted agency rights and freedoms once they have acquired the capacity to understand the consequences of exercising these freedoms in relation to their well-being and agency interests (Brighouse and Swift 2014, 62). Therefore, certain conditions must be in place to ensure that children reach a threshold of agency capacity required to exercise these rights, ‘she must be taught to be able to empathize and sympathize, reason about principles, think about moral rules, discipline her own behaviour’ (Brighouse 2002, 42), before the actual rights and freedoms that come with agency can be granted to the child. The Differential model acknowledges that the development of these capacities is gradual, but, for political purposes, imposing a strict threshold below which certain claims are not considered seems reasonable and just.

The Differential model emphasises the fundamental interests of children in their present, future, and overall development, recognising that their vulnerable and dependent condition requires certain interests to take priority to ensure their well-being throughout their life-course. It centres on the idea of protecting children as potential agents, ensuring their capacity to develop into capable agents rather than granting them full rights to exercise these freedoms in the present (Brighouse and Swift 2014, 67). The focus is thus ‘to safeguard their immediate welfare rights and their prospective autonomy’ (Brighouse 2002, 51).

Childhood is seen as a stage of incompetence for the exercise of certain freedoms, leading to a predominant focus on children’s future interests, ensuring their current well-being and their future development of agency. For example, while a child may have a present agency interest in not attending school, the long-term consequences for their future well-being and agency justify not granting them this present agency interest as a claim of justice. The differential model prioritises the ‘future person’, restricting agency claims owing to potential negative effects on the person-to-be; and when agency claims are protected, it is primarily to prepare children for their future duties and freedoms rather than solely for their intrinsic value during childhood (Liebel 2014, 77–8).

David Archard offers a similar view when arguing against children’s fundamental interests in having their choices protected (Archard 2004, chapter 6). According to Archard, an interest must be of sufficient importance to justify its protection as a right (Archard 2004, 91–7). If children are unable to make choices and exercise agency and well-being freedoms, then their interests in these freedoms are not significant enough to warrant their protection as rights. On the other hand, children do have fundamental interests in having their present well-being achievements and future agency protected, which justifies these being guaranteed as rights (Archard 2004, 92).

The underlying intuition of this model is that adult human beings can exercise and have their freedom protected as a right precisely because they were denied this freedom during childhood (Archard 2004, 93). If children, as Liberationists argue, were entitled to the same level of agency and well-being freedoms as adults, they would lack the opportunity to develop the necessary competences for effectively exercising these freedoms later on. In essence, the differential model considers both well-being and agency as essential interests in the assessment of legitimate rights allocation, but it prioritises present well-being interests to ensure the development of well-being and agency in the future.

The strict differential model raises several problematic issues, similar to those raised for Life-Stage conceptions of ‘childhood’ in the section ‘Beyond Life Stages’ in Chapter 2. First, it assumes and categorises individuals based on their age, ascribing predetermined weaknesses and inabilities to children, which is inconsistent with basic liberal principles that advocate assessing individuals as ends in themselves, rather than as members of specific age-defined collectives. To avoid unjustly and arbitrarily restricting fundamental freedoms to competent children, a more sensitive and gradual approach that values children’s potential capacity as agents in certain aspects of their present life is necessary.

Both Archard and Brighouse recognise to some extent the critique of a ‘gradualist’ approach, but they still argue against granting certain freedoms as rights to children based on the acquisition of particular competences. Brighouse, for example, considers that bearing the full responsibilities and liabilities that come with right holding would both harm children and also threaten family structures and values (Brighouse 2002, 46–51).

However, these claims are problematic. First, using the preservation of family values and structures as a justification for restricting children’s freedom is incompatible with liberal principles that prioritise the individual and their freedom over the collective. Such arguments have historically been used to support oppressive and unjust social systems, such as slave ownership and opposition to women’s liberation. Justifying restrictions on individual freedom for the sake of preserving an oppressive and unjust social regime is unjustifiable from a liberal standpoint.

Moreover, the claim that such restrictions are done for the good of the children themselves is also questionable. If individuals are competent enough to exercise a given freedom, paternalistic interference with their pursuit of their own good through their own means is unjust. The presumption in favour of freedom implies that individuals, including children, should be allowed to make their own decisions and pursue their own interests as long as they are competent to do so.

While it is true that there may be pragmatic arguments for using age as a proxy to regulate social relationships and rights allocation, it is essential to consider the potential drawbacks and injustices that may arise from such an approach (Anderson and Claassen 2012; Franklin-Hall 2013) (see the section ‘Pragmatic Age Model’ in Chapter 2). Age-based rights allocation can lead to the differential treatment of individuals based on arbitrary factors rather than their actual competence and capabilities. Treating all children the same, without considering their individual competences, can lead to both over-protection and under-protection of their interests.

Archard’s argument that a strict age threshold is justified because alternative methods would be expensive and cumbersome does not hold up to scrutiny (Archard 2004, 90). While implementing a competence test for each freedom may require more effort, it ensures that individuals are treated based on their actual abilities and needs, rather than making assumptions based on their age.

The use of licensure could be a more nuanced and flexible approach to rights allocation, because it considers individual competences and capacities. Instead of blanket prohibitions or permissions based on age, licensure could allow for a more tailored and context-specific evaluation of an individual’s readiness to exercise certain rights. This way, certain freedoms could be granted to children who demonstrate the necessary competence, while others would be withheld until they reached the appropriate competence thresholds. Indeed, current legal practice already shows that an all-or-nothing approach is not always in place, with certain rights and privileges being granted to individuals based on specific qualifications or assessments (Herring 2018). Adopting a licence-based approach could provide a more just and pragmatic way to protect children’s interests without imposing unnecessary restrictions on their freedom.

Present legal systems utilise an age of majority to distinguish between adults and children, but they also adopt a more gradual approach to allocate specific rights through a multi-threshold system of licences. While political rights and duties typically are granted at 18 years, other fundamental freedoms vary widely in their age thresholds across different countries. For instance, the legal drinking age ranges from 13 years (with parental supervision) in Germany, 16 in various European countries, to 21 in the United States, and banned for everyone in several Muslim countries. The age of sexual consent also differs significantly, from 12 years in some Mexican states to 19 in Indonesia, or until marriage in certain Muslim countries. Surprisingly, there are cases where voting rights, traditionally associated with adulthood, are granted before the age of majority, such as at 16 years in Scotland, Austria, and Brazil, among others. These varying licensing age thresholds demonstrate the divergent approaches taken by different states.⁵

If we are to concede to the pragmatic need to use age thresholds for granting and restricting certain rights and duties, we might rather follow the Brazilian example, which takes a much more nuanced understanding of what reaching ‘adulthood’ means by taking seriously the role that an individual’s specific condition and constitutive frameworks play in the evaluation of their status. Although the official age of majority is 18, Brazil treats this as a guiding proxy rather than an absolute threshold. ‘Adulthood’ is tied to an individual’s constitutive frameworks rather than solely to their age. For instance, a person under 18 may no longer be considered a ‘child’ if they get married, becomes a public official (e.g., begins military service), completes an undergraduate degree, or achieves economic self-sufficiency (Brazil 2002, Art. 5). Additionally, individuals from 16 years onwards are allowed to vote and participate in civic life (Art. 3), with certain restrictions applied to individuals of any age who exhibit specific behaviours or conditions (Art. 4).

The Brazilian example demonstrates that ‘adulthood’ need not be strictly tied to age but can depend on individuals’ willingness to attain this status and their ability to exercise certain competences, granting them full citizenship recognition within their socio-political community. This approach acknowledges that constitutive frameworks legitimise the restriction of an individual’s freedom, and those proven capable should be entitled to rights and freedoms that align with their condition. By using age as a guiding proxy, Brazil accounts for the complexity of human development and the importance of the constitutive frameworks in determining a person’s status and rights.

Samantha Brennan’s Gradualist model (2002) acknowledges that a child’s ability to exercise agency is not a binary distinction but rather a matter of degree. This approach embraces a graded understanding of agency development and competence acquisition as the core framework for determining the fundamental interests that a person is entitled to have protected as rights. Brennan recognises both achievements and freedoms (referred to by her as interests and choices) as fundamental grounds for a person’s rights. However, she proposes that these interests and choices should be viewed as part of an evolving continuum. In the Gradualist model, the unit of moral and political concern initially focuses exclusively on a person’s interests and achievements. As an individual acquires competences over time, the concern gradually shifts to protect their choices and freedoms. The model emphasises the importance of a person’s developmental journey (their temporal framework), recognising that the acquisition of competences is a significant factor in determining the scope of rights and freedoms that should be protected (Brennan 2002, 63).

The continuum, according to Brennan, implies a degreed transformation of a child’s rights to have their interests and achievements protected to the adult’s rights to choose and freedoms: ‘We can view the transition from childhood to adulthood as the gradual transition from being the sort of being who has interests but not the ability to protect them oneself to becoming a full-fledged autonomous chooser’ (Brennan 2002, 65). In contrast to the Differential model, which strictly shifts rights from well-being to agency at a specific threshold, the Gradualist model embraces a more flexible approach, acknowledging that childhood can be understood as a variable condition that exists to different degrees, influenced by the child’s developmental processes and their temporal framework. It recognises that children’s agency and freedom abilities gradually develop over time. Therefore, the focus initially lies on the child’s achieved well-being interests during the early stages of life, and, as the child acquires the competences required for exercising agency and freedoms, the emphasis gradually shifts towards protecting their choices and freedoms. Unlike the Differential model, which may not consider agency claims below the threshold as matters of justice, the Gradualist model acknowledges the legitimacy of agency claims gradually for individuals who have acquired the necessary competences to exercise them.

Brennan’s model responds to the Liberationist claim of equal rights by considering rights as instruments for protecting fundamental interests. According to Brennan, rights can be overridden if one’s or another person’s interests are better protected through restriction (Brennan 1995). This interpersonal trade-off, however, raises significant problems from a liberal perspective. First, this approach assumes that individuals can be legitimately used as means for achieving benefits for others. Brennan provides examples of situations where one person’s rights may be overridden to protect the more important interests of another (Brennan 1994, 424–6). While there may be a moral duty to waive certain rights to protect others, this should not imply that an individual permanently loses the right itself. Waiving my right to not have an arm chopped off to save a life may be morally justifiable in certain situations, but it does not mean that my right to bodily integrity is lost altogether. The ability to consent and to waive rights is a crucial consideration in such evaluations. For instance, forcibly chopping off an unconscious infant’s arm to save another person’s life, without the infant’s consent, would raise serious ethical concerns. Simply appealing to the benefit of a second person cannot, by itself, justify overriding the rights of the first person without their informed consent.

The intrapersonal case poses similar challenges, particularly during an individual’s transition from having their interests (achievements) protected to having their choices (freedoms) protected. Brennan assumes that there is an objective list of fundamental interests that can justify overriding an individual’s own choices (Brennan 1995). However, the question arises of who should be the judge, and how we should evaluate the trade-off between an individual’s achievements and freedoms (Hart and Brando 2018; Brando 2020). To make sense of Brennan’s gradual transition from interest claims to choice claims, an arbitrator and an objective standard are required to assess whether an individual’s achievements should override their freedoms, or vice versa. Brennan argues that a person’s achievements should always be a priority consideration (Brennan 2002). For instance, if a child’s freedom to choose what to wear during winter does not lead to the expected achievement of not catching a cold, then their interest in not catching a cold should override their interest in choosing what to wear during winter. According to Brennan, rights always protect achievements, sometimes indirectly through freedom rights (if these ensure the achievement) and sometimes directly if the freedom rights cannot ensure the achievement:

Whether a right protects one’s interests [achievements] or one’s choices [freedoms] will depend on which form of protection best advances one’s interests [achievements]. Rights protect choices when having one’s choices protected is just what is in one’s interest and rights protect interests directly when it is having those interests protected, rather than one’s choices, that best promotes one’s interests. (Brennan 2002, 63)

In essence, according to Brennan’s Gradualist model, a person’s achievements are always to be protected, but the protection of these achievements may sometimes be more effectively ensured through the person’s own judgement, rather than through an external metric that defines what is in their best interest.⁶ The model relies on using achievements as a standard for judging whether to respect a child’s freedom or not, considering freedom as a tool that can potentially promote well-being and overall achievements if one is competent enough to gain achievements through freedom.⁷ The objective of the Gradualist approach is thus to strike a balance: ensuring that individuals capable of fostering their own interests and achievements through freedom can do so, while also safeguarding the fundamental achievements and interests of those who may not know how to make the most beneficial use of freedom.

Brennan’s Gradualist Model, while recognising the importance of achievements and freedoms, faces challenges when assessed in light of liberal principles. By making freedom merely instrumental to protecting achievements, it risks eradicating freedoms from the evaluative space of fundamental interests, and subjects them to the political system’s definition of valuable achievements.

This model raises concerns about potentially harmful restrictions on an individual’s freedom rights, regardless of age. It aims to ensure one’s best interests, but determining what constitutes ‘best interests’ becomes subjective and problematic. The evaluation of interests under Brennan’s approach disregards agency and freedom as fundamental interests, as they are contingent on a person already being qualified to promote their interests through choice. This leads to one’s choices having to (always) be evaluated and qualified as promoting one’s interests, regardless of one’s choices and freedoms, thus leaving the scope of freedom exclusively conditioned within the realm of what promotes best one’s achievements. The Gillick test used in the United Kingdom to assess a child’s competence to consent to medical treatment is an example of this ‘best interest’ approach (Gillick v. West 1985). It evaluates whether children are ‘competent enough’ to consent to a given medical treatment, but their choice can still be overridden if the experts consider that the ‘competent’ child’s choice is against the expert’s opinion (see Herring 2018, 29–30).

Instead of expanding the freedom rights for capable children, Brennan’s Gradualist Model has the potential to restrict freedom for everyone (regardless of age) whose choices do not align with their best interests. This approach relies on an objective theory of the good to determine who is capable of achieving their interests and who requires paternalistic interference. While achievements should be considered when evaluating fundamental interests, they should not always take precedence over freedoms. Agency and well-being freedoms are essential in our assessment of what individuals are owed, and their value should not be solely dependent on the ability to protect an objective list of best interests. A liberal theory ought to recognise the intrinsic value of freedoms beyond their instrumental role in promoting achievements. This calls for alternative models of rights allocation that prioritise freedom of choice and agency, granting them a more prominent role in safeguarding individuals’ rights.

The third model that follows the Standard Liberal view is Joel Feinberg’s In-Trust approach to children’s rights (Feinberg 1992). According to Feinberg, even though it may be acceptable to restrict an individual’s exercise of certain rights owing to incompetence, this does not mean that the individual does not possess those rights; instead, these rights are kept ‘in trust’ and protected from violation until the person becomes capable of enforcing them themselves.

Similar to the Differential model, Feinberg’s account of children’s rights begins by distinguishing between A-rights (rights belonging to the adult population), C-rights (rights exclusive to children), and A-C-rights (rights common to all humans). Feinberg’s approach, akin to Brennan’s gradualist view, sees the acquisition of freedom rights as an incremental process primarily based on a person’s ability to exercise them. A-C-rights encompass fundamental interests that are present and significant throughout an individual’s entire life (e.g., the right to life, bodily integrity, freedom from torture). A-rights, only held by adults, are mainly related to civil and political freedoms and agency (e.g., voting, drinking alcohol, free exercise of religion), which ‘could hardly apply to small children’ owing to their incapacity to exercise them (Feinberg 1992, 76).

C-rights, on the other hand, apply specifically to children owing to their unique condition.⁸ Feinberg further divides C-rights into two sub-sections: the first includes achievement interests, particularly prominent during childhood, which arise from a child’s vulnerable and dependent condition, ensuring basic instrumental well-being they cannot provide for themselves (e.g., nourishment, shelter). The second sub-section comprises ‘rights-in-trust’, collectively referred to as the ‘right to an open future’ (Feinberg 1992, 77). The concept behind rights-in-trust is that all A-rights a person cannot properly exercise owing to physical, mental, or emotional incompetence are preserved and protected until the individual acquires (or regains) the abilities required to exercise them. The rationale behind rights-in-trust is twofold: first, certain rights depend on the competence to exercise them; but, second, to prevent violations before the individual becomes competent, these rights must be safeguarded throughout their entire life-course. Feinberg uses the example of a person’s fundamental interest in walking freely to illustrate his In-Trust model. He argues that even an infant of two months, who is currently incapable of self-locomotion, possesses the right to walk freely down the public sidewalk. Cutting off the child’s legs would violate this right-in-trust, even before the child is able to exercise it (Feinberg 1992, 77).

Feinberg’s main point with this example is to emphasise that we should recognise the justice claims of children to all rights, even if they lack the ability to exercise the interests associated with those rights. A two-year-old toddler has a fundamental interest in having their right to walk down the street protected, even if they cannot walk down the street at present. Inability to exercise a right does not negate a person’s entitlement to that right; it simply limits their ability to exercise it. Unlike the Differential model, which may struggle to address potential violations of some future claims of children owing to its focus on distinguishing adult and child interests, Feinberg’s In-Trust approach ensures that the child’s future interests will not be pre-emptively violated. This is achieved by granting rights that protect the child’s potential self and interests before they have had the chance to develop them (Feinberg 1992, 78).

Feinberg’s rights-in-trust approach, in contrast to the Gradualist model, places a strong emphasis on the role of choice (freedoms) as the foundation for a person’s claims. The primary objective of Feinberg’s approach is not solely to ensure that an individual’s fundamental interests are met but rather to safeguard their choices, both current and potential, until they possess the competence to exercise them. This approach prevents the potential harm that may arise from instrumentalising freedom, as seen in the Gradualist model. According to Feinberg, children should not be perceived as individuals who lack agency entirely and whose interests solely rely on achieving certain outcomes. Instead, children always possess interests related to their capacity to make choices, and these interests should be protected regardless of whether they currently exercise them or not.

When discussing A-rights and C-rights, Feinberg does not imply the existence of a strict threshold that divides them. Adulthood and childhood, for Feinberg, are to be taken as relative categories. Some especially vulnerable and dependent adults may be appropriate holders of certain C-rights, while some children can be considered as holders of certain A-rights: ‘Many or most of a child’s C rights-in-trust have already become A rights by the time he [a child] is ten or twelve. Any “mere child” beyond the stage of infancy is only a child in some respects, and already an adult in others’ (Feinberg 1992, 95).

Feinberg’s categories in the In-Trust model highlight the relative level of a particular individual’s competence to exercise specific freedoms and their particular dependence on others for achieving their well-being. Contrary to a fixed and rigid categorisation of individuals as either children or adults, Feinberg’s approach recognises that individuals can hold both child rights and adult rights depending on their unique conditions, constitutive frameworks, and circumstances.

In Feinberg’s conception of rights, the possession of a right is not contingent on the individual’s current ability to exercise it. Regardless of whether a person has the immediate capability to exercise a particular right, they still hold that right. Moreover, the rights-in-trust model emphasises the importance of acknowledging a child’s agency capacity at all times. Just because a child may be incapable of exercising a certain right today does not mean they won’t have the competence to do so tomorrow. From the moment of birth, children actively contribute to the shaping of their own lives, identity, and interests. Their current inability to fully exercise agency should not lead to the assumption that they are not entitled to have it protected.

Feinberg’s In-Trust model, however, faces challenges in providing a clear conceptualisation of the process through which C-rights transform into A-rights. While he acknowledges that children possess many agency rights and freedoms during childhood, it remains unclear how far he deems it legitimate for a child to exercise such rights. Feinberg’s perspective seems to suggest that rights-in-trust only become A-rights once they are effectively exercised. When an individual acts upon their intention, such as walking down the street or voting, the protection of their future exercise of that right becomes a present interest through its actual exercise. However, Feinberg does not elaborate on the precise mechanisms that facilitate this transformation.

He identifies the protection from violation of a right prior to its exercise as a fundamental interest for an individual incapable of exercising it. While this protection is necessary, it is not sufficient to fully safeguard the person’s right. Additional requirements must also be fulfilled to enable an ‘incapable’ individual to develop the capacity to exercise a particular right or freedom. The In-Trust model’s reliance on mere negative protection (understood as freedom from interference) for children’s rights-in-trust falls short in capturing the full range of conditions needed to foster the development of a capability (or substantive freedom) for exercising specific rights (Sen 1985). Further clarity and elaboration are necessary to fully address the intricacies of this process.

A child’s development of competences and abilities to exercise certain freedoms cannot solely rely on negative protection from rights violation or leaving their future open. There must be certain fundamental preconditions in place to facilitate the transformation of internal capacities into substantial freedoms. Feinberg does acknowledge the importance of certain preconditions that ‘derive from the child’s dependence upon others for the basic instrumental goods of life – food, shelter, protection’ (Feinberg 1992, 76). But he considers that as long as options are open and rights are not violated, children will naturally develop competences over time.

However, these requirements stemming from a child’s dependence are not sufficient. We must also consider the developmental and adaptive processes that play a crucial role in a child’s capability development. As Mianna Lotz argues, protecting rights-in-trust goes beyond mere negative protection, and should encompass positive duties, social conditions, and developmental requirements that actively promote and enable a child’s eventual ability to exercise various agency rights and freedoms (Lotz 2006, 546).

Feinberg’s model presents a unique perspective by emphasising the significance of choice as a fundamental interest and a basis for children’s rights. Even if our present choices might not directly ground some of our rights, it is essential to protect our potential freedoms and keep them open. Children’s status as ‘incapable’ in certain aspects of life justifies the safeguarding of specific rights that may not be guaranteed to the rest of the human population. Owing to their inability to directly exercise choice over certain well-being interests, others must ensure the provision of these interests by exercising their own choice rights on their behalf. As children acquire the necessary competences and exercise them effectively, their rights-in-trust evolve into adult rights. This transformation does not mean that they lacked these agency rights before, but rather that the mode of protection differs. One aspect, however, remains unclear in Feinberg’s model: what should be the evaluative assessment of the process through which a child gains the ability to effectively exercise competence-dependent freedoms and rights? A more thorough examination of the competence-development process and the correlation (or lack thereof) between freedoms and competences is still required.

The three models presented in the previous section share a common agreement in challenging the Liberationist view by acknowledging that granting all rights and freedoms to children could pose significant risks owing to their vulnerable and dependent nature. They also recognise that the acquisition of competences and certain states of being are necessary prerequisites for an individual to exercise specific freedoms and rights. However, further examination is required to fully understand the implications of these claims and to ensure that the Standard Liberal models align with the principle of basic liberal equality. To achieve this alignment, it is essential to subject the particular restrictions and privileges that legitimise asymmetric rights allocation to an equal standard of evaluation, as advocated by Liberationists. Additionally, a comprehensive exploration of the relationship between the constitutive frameworks, processes, and factors that facilitate the acquisition of the required competences for exercising certain rights is necessary. This investigation will help clarify the specific restrictions that can be justified based on their connection to this competence development process.

The rights granted based on an individual’s lack of ability to counter harms, tied to vulnerabilities, dependencies, and incapacities, are referred to as achievement rights. These rights are essential to protect highly vulnerable and dependent individuals from the high risks of harm they face. Achievement rights encompass not only well-being interests such as being nourished, nurtured, and healthy, but also larger non-well-being related interests that are relevant to the individual’s developmental stage.

The Differential model of children’s rights expands the scope of achievement rights to include interests in developing agency, rationality, emotional capabilities, and social capacities. According to Brennan’s Gradualist model, the ‘interests’ rights of children include, as well, all fundamental aspects of a person’s life that are crucial to their well-being and development, and which they cannot protect through their own choices. Similarly, Feinberg’s In-Trust model emphasises achievements as a central aspect of children’s rights. Children not only require ensured resources and goods for their basic subsistence and survival, but also a broader set of protective rights, such as the right to an open future. These rights aim to ensure that all children have their fundamental potentialities safeguarded and nurtured, enabling them to eventually exercise the full range of adult rights.

The three models, however, differ significantly in their understanding of freedom rights and how they should be treated in relation to children. Brighouse’s view considers freedom rights, particularly those related to agency, as relevant mainly for a child’s future, justifying their restriction during childhood. In contrast, the Gradualist model advocates for the conferral of freedom rights tied to a person’s choices as they acquire the necessary competences to exercise them. Feinberg’s In-Trust model, while also limiting full freedom rights only to those capable of exercising them, emphasises the protection of freedom rights (in the negative sense of non-interference) throughout a person’s life to prevent violations before they can be exercised.

The normative framework of the three models is built upon the recognition of children’s particular inabilities, which serve as the basis for granting them exclusive achievement rights and restricting certain freedom rights. Children’s vulnerability and dependence justify the conferral of protection rights to shield them from potential harm. Additionally, the assumption that children may not fully comprehend the implications of exercising certain freedoms and the potential risks involved justifies the restriction of most freedom rights.

But, in order to understand the legitimising force of inability and harm in the differential treatment of some individuals, providing a clear account of what constitutes ‘harm’ and ‘inability’ is crucial in understanding the legitimising force of differential treatment based on these factors. To do so, two conditions must be met.

First, there should be the use of an equal standard to evaluate morally relevant interests, harms, and inabilities that may justify differential treatment. Differential treatment based on risk of harm and specific incompetence should be grounded in the existence of actual harm and incapacity, rather than relying on stereotyped assumptions about a certain group, such as age-based categories. The concept of ‘childhood’ should not be reified, and instead, individual differences and capabilities should be acknowledged. Arbitrary distinctions based on stereotypes can lead to unjust treatment of individuals. To uphold the principle of equal treatment, the same standards of harm and incompetence should apply to everyone equally.⁹

The second condition requires avoiding blanket categorisations of vulnerability, dependence, or inability, as individuals vary radically depending on their condition and dynamic relationship with their constitutive frameworks. Justifying specific restrictions or privileges based on an individual’s condition should consider the correlation between particular fundamental interests, rights, and the individual’s unique condition and constitutive frameworks.

Rights protect fundamental interests. As human beings we have strong interests in having both our well-being and our agency protected, as achieved states (functionings) and as substantive freedoms (capabilities). Because our interests may clash (my agency freedom can affect my well-being achievements, for example) we must be able to evaluate the tension and necessary trade-off among them in order to judge which interests have priority in their protection as rights.

Liberationists advocate for an equal standard in assessing fundamental interests, with a focus on ensuring freedom interests as fundamental rights for all individuals. While I agree with their call for an equal standard, I align up to a point with some of the criticisms raised by Liberationists’ opponents. An equal standard does not automatically lead to equal rights entitlements. Variability in an individual’s embodied, temporal, and spatial frameworks, susceptibility to harm, and specific inabilities to exercise certain freedoms justify the contextual restriction of freedom rights. Consequently, in certain situations, more weight might be given to achievement interests, particularly those related to well-being.

I have examined three Standard Liberal models that justify differential treatment based on harm and inability. These models, however, require a revision to accommodate a more nuanced understanding of individual interests, particularly within an Adaptive conception of ‘childhood’. While harm and incompetence are rightly recognised as valid grounds for asymmetric rights allocation, the lack of a clear definition of the relationship between specific harms, inabilities, and various interests, rights, vulnerabilities, developmental processes, and social contexts necessitates further investigation.