Professor Akira Morita

Preface-Defining the Issue

"Children's rights" is a controversial concept.

A typical example is the "Convention on the Rights of the Child," adopted in 1989 by the United Nations. The Convention's catalog on the "child's right to autonomy," which adorns the whole of the final 1989 Convention draft as a symbol of the spirit of our age, was the fruition of deliberations by the working group of the UN Committee on Human Rights under the bold initiative of the United States representative. Any discussion of the Convention cannot fail to mention the influence America has had on it.

Since the Convention came into force in September 1990, following ratification by the prerequisite twenty states, the number of state parties multiplied with unprecedented speed. Today, the number of state parties stands at 191, and the only country that has yet to ratify the Convention other than Somalia is the United States.

This is indeed a curious state of affairs. In America, the voice of the philosophy and spirit of the Convention at its drafting, a controversy emerged over the pros and cons of ratification which has yet to be resolved. The series of articles America invested so much energy in at the drafting process are the very ones that have incited the most heated opposition.

Exactly what is the significance of this development? What sort of problems are contained in the concept of children's rights, whose "lofty goals and high-sounding words" were embraced by the international community with such amazing speed?

There are two, quite dissimilar, varieties of children's rights: the right to protection and the right to autonomy. My presentation will tend to focus on the right to autonomy as I examine the issues involved in children's rights from two directions. First, I will make a legal analysis with the material of the Convention on the Rights of the Child, and second, an analysis of points at issue from the standpoint of the psychological structure of the parent-child relationship. Through this process of orderly examination, I hope to uncover what we need to keep in mind and the approach we should take to the concept of children's rights in order to avoid the pitfalls it can engender.

Parental Authority versus State Paternalism-the First Paradox

The 1959 "Declaration of the Rights of the Child" purposed to be a declaratory guarantee of the child's right to protection. The concept of the child's right to autonomy that appeared at the close of the 1960s was one still undreamt of by the drafters of the Declaration.

Incidentally, by tracing its drafting process, we discover that deliberations on the Declaration proceeded in the midst of fierce opposition between subsidiary paternalism-championed chiefly by the United States and Great Britain-and the active stare paternalism insisted on by former socialist countries such as Russia and Poland. More specifically, the socialist countries' insistence on a declaration that was legally binding to allow the state to actively intervene in the family relationship in the name of children's rights and create state-run child welfare networks that would reach every corner of society, was strongly opposed by America and England as we can see from statements such as the following: 20 Some countries held that the text was valueless because it imposed no legal obligation on Member States. That view had been mistaken. We could not support the USSR amendment, since it implied that the State was primarily responsible for the welfare of the child, a view which we could not share. The main responsibility lay with individual men and women and it was only when they were found wanting that the State should intervene. That is, the free nations contended that protection and education of the child are fundamentally the province of natural parental authority, which should not extend to state law. The law should only be allowed to intervene in exceptional or subsidiary fashion in unavoidable emergency situations arising from the parent's incompetence or immorality. The outcome of the dispute was that the agreement passed the UN General Assembly in the form of a Declaration that was not legally binding. This tells us that confidence in family autonomy and natural parental authority, an institution that predates the State, was still alive in the western world.

In the latter half of the 1960s, however, America became the first country to experience an attack on family autonomy and natural parental authority, and their rapid decline-what is referred to as the dissolution of the family-does not need to be repeated here. Out of the process of the decline of parenthood, emerged a new concept of the child's right to autonomy that was at once a result of the decline and an ideology of anti-paternalism that fathered it. Twenty years after the Declaration, what spurred the American representative and the many NGOs that participated in deliberations on the Convention on the Rights of the Child was none other than a distrust of natural parental authority and the reaction against it that took American society by storm in the 1-0s.

Now the American representative raced toward the new goal of the child's right to autonomy and the child's best interests guaranteed by the State. By now the premise that the Convention to come must be legally binding on state parties was so obvious as to leave no room for debate. The American representative presented one draft after the other concerning children's civil liberties and these were formulated into Articles 12 through 16 of the Convention.

The child's right to autonomy inevitably transformed the character of the family, which had been an organic entity consolidated by parental authority. Article 5 speaks the most eloquently of this: 20 States Parties shall respect the responsibilities, rights and duties of parents...to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. Here the child is the subject that exercises rights independent of the parents. These parental rights of direction and guidance are no longer of the same order as the parental authority that preceded the State. This contractual image of the family that such an order of rights and duties describes, differs from the organic entity of the traditional family image. Children given the rights to autonomy and deprived of the shelter of parental authority are now obliged to confront the law and the State directly.

What we should note here is the structural change imparted to the whole of the Convention by incorporation of the child's right to autonomy.

With trust in parental authority lost, the State no longer needed to abide by the subsidiary principle of intervention. In fact, the State was now the new savior that should protect the child's interests from parental authority-a duty that was by this time not a declarative and moral duty but a legal one.

If we take a fresh look at the entire Convention on the Rights of the Child from this perspective, we are surprised to find that the State's responsibility toward the child's right to protection that was so delicately handled under the subsidiary principle in the Declaration of the Rights of the Child has been strikingly expanded and strengthened in scope and degree in the Convention. Examples are found in Article 19, which stipulates "State Parties shall take all appropriate legislative, administrative, social and educative measures to protect the child from all forms of physical or mental violence, injury or abuse...while in the care of parents." The discreet approach taken by the state under the subsidiary principle is nowhere in sight.

Here we are able to clearly observe the legal dynamism by which the right to autonomy, as a criticism of parental authority, breaks down the organic family entity into individual units, and conversely how the right to protection generates a powerful State paternalism. This is quite paradoxical. As a logical model, the aggressive system of State guarantee of the right to protection that emerged with the victory by the right to autonomy, surely bears a close resemblance to an order by which the state could seize any one of its subjects, which the Western states-with America heading the list-warned against continually during the drafting of the Declaration of the Rights of the Child! Aren't we now confronting the paradox of a new brand of totalitarian state paternalism prepared in the name of autonomy and rights?

Well, I have drawn a rough sketch of the Convention on the Rights of the Child adopted by the UN General Assembly just ten years previously. As I mentioned at the outset, the movement in America to promote ratification of the Convention now in concrete form, encountered fierce opposition from the grassroots community. The ratification procedure once got as far as signing to the United Nations in 1995; but an opposing resolution by the Senate Foreign Relations Committee has completely halted ratification for the time being. In a way, this is in itself a very dramatic story: Why, in America of all places, are such events going on? Here I would like to point out only that the United States, as the pioneer of the development of children's law in the twentieth century, is the very country that has experienced most intensively the significance and gravity of the conflict between organic human relations and right-based relations. I would like to quote a passage from a dissertation written in 19' by legal scholar Dr. James Lucier that provided a theoretical foundation for the anti-ratification movement:

What is missing in the Convention is the underlying idea of rights for families...By endowing the child with legal autonomy, that is to say, enjoying rights independently of the family, the new doctrine put the family in the position of mere caregivers, bound to the observance of the child's rights.

Every child becomes the adversary of the parents, at least in the potential, and the adversary of brothers and sisters in competition for rights.... By destroying the human factor in human relationships, the advocate of autonomy, especially the autonomy of children, will create a society which lacks the principles of cohesiveness and common purpose necessary to its common existence.

Lucier expresses quite succinctly the feeling of impending crisis that the legal concept of the child's right to autonomy would act as a frontal attack that tears down the human factor in parent-child relationships. It is this sense of crisis, more than anything else, that has factored in preventing ratification in America, the home of the philosophy and spirit of the Convention.

Here we need to examine the origin of the nature of the human factor in human relationships of which Lucier speaks. How does this human factor clash with the concept of children's rights? Let's take another look at this issue.

The Parent-Child Relationship versus Children's Rights-the Second Paradox
The Parent-Child Relationship versus Children's Rights-the Second Paradox The energy that upheld the child's right to autonomy that appeared in the 1960s arose from an antipathy to and distrust of the essentially vertical and paternalistic structure of the parent-child relationship. Through that energy ran the thread of emancipative passion embodied by those modem citizens who waved on high catalogues of civil rights and fought in the past against restrictions and constraints imposed by an absolute monarchy.

But is the parent-child relationship really a system that is constraining and subordinating in substance? We know intuitively that the essence of this relationship cannot be fully explained by legalistic vocabulary such as "parental right." In order to theoretically ascertain this intuition, however, we are obliged to borrow the power of psychological insight. Here I will attempt to access this issue by employing the framework postulated by Japanese psychiatrist Takeo Doi whose book, The Anatomy of Dependence, made him known throughout the world.

Doi's research started out from the key concept of amae, which is a term that denotes dependent emotions and behaviors exhibited by the Japanese, to discover the nature and pathology of the dependency trait universal to all human beings. The Japanese noun amae and verb amaeru express with single words the essence of human dependency emotions and behaviors as they occur in diverse situations, thus a straight translation into English is impossible. After long years of contemplation grounded in his clinical research, Doi arrived at the concept of the dependency need, a fundamental desire of all human beings that lies behind the phenomenon of amae behavior.

The expression of the dependency need, or amae, can best be observed in its archetype, the relationship between the infant and its mother. A one-year-old baby discovers itself as being vulnerable to the threats contained in the objective world and instinctively reaches out for its mother and attempts to identify with her. The child experiences relief and delight when this impulse to identify is intercepted and sanctioned by the mother and acquires sustenance for mental and physical growth. As the child grows, this psychological dynamic surfaces in a variety of behavior patterns that are attended by intimate emotions such as the desire to be loved, the desire to be praised, the wish to respect, and the wish to adore and long for something. The constant that operates behind all of these behavior patterns is the dependency need which, as I have mentioned, is a fundamental human desire.

The identification process that emanates from the dependency need plays a determinate role in the child's psychological development. Certain restrictions imposed by parental discipline and teacher direction are necessary accompaniments to the child's freedom. Children endure punishment, obey orders and study their school lessons because amae is at work in the background-that is, the expectation that by identifying with parents and teachers, they will be accepted, sanctioned, and loved. To put it another way, they do these things in expectation of the joy that comes from gratification of the dependency need.

If we accept this as the psychological mechanism by which the child relates to the parent, then how should we understand the parent's role in this regard? It is, above all, to intercept the child's dependency need. How effective a parent is in directing and instructing the child and obtaining the child's submission hinges on whether or not the parent is able to intercept and gratify the child's amae. In addition, parental affection for the child grows within the process of this interception. It is a dynamic process of emotional interaction. The essential point here is that without the asymmetrical parent-child relationship, such interaction is impossible. The very fact that the parent is a greater presence than the child is what enables the child to depend upon the parent. If parents ignore this vertical relationship and set up a friendship-type of parent-child relationship by taking the egalitarian approach and abandoning the child to spontaneity, the child will lose a receptor for its dependency need as well as a channel for growth. Not only that, such an approach provokes a number of pathological phenomena. I will go straight to the point: parental authority is the foundation of trust that is created when the parent acts as the receptor of the child's amae, making it possible for the child to submit to that authority. It is not a constraining or subordinating system in the sense of modem legal thinking.

Looked at in this way, we realize that a child is not an acorn that will autonomously put forth shoots all by itself according to a personal program if only it is given water. Human relationships in which amae can operate are indispensable to a child's growth. Such asymmetrical relationships are the medium by which the child gradually finds a path to the formation of self. Doi suggests this when he writes Man cannot lead a human kind of existence without the experience of having belonged to something or other. In different terms, man cannot possess a self without previous experience of amaeru.

The adjectival form of amae is amal, which means "sweet." The fact that in western countries "sweet" is often used in connection with the family-"home, sweet home" for example-would seem to indicate that the quintessence of the parent-child relationship transcends national boundaries and divergent cultures. It is my understanding that the "human factor in human relationships" that James Lucier talks about refers to gratification of the dependency need and the intimacy and "sweetness" that arise from the emotional exchange involved. This is certainly none other than an account of the amae Doi speaks of.

By now it should be evident that the concept of the child's right to autonomy acts as a frontal attack on the inherent nature of the parent-child relationship.

First and most important, the philosophy of children's autonomy lacks insight into the fact that the child is not simply a little acorn that can grow autonomously, but that gratification of the dependency need by the parents is nourishment the child needs to grow.

Second, rights are, after all, a concept of modern law that emerged as a weapon to be employed in the settlement of disputes between individuals over conflicting interests. Rights are not prerequisite to interpersonal emotions and shared interests. If anything, rights tend to work as a factor that severs these. If I may borrow the words of Professor Mary Ann Glendon, modem man's nature obliges him to be the "lone rights-bearer." So in the name of rights, children's rights cut off the amae that is critical to the child's growth. I must say that herein lies yet another huge paradox that children's rights inevitably generates.

I do not wish to be understood as suggesting that the concept of children's rights in itself is completely meaningless. The reality is that within the increasing complexity of modern society, parental authority has become dysfunctional and abusive, and we must recognize that there are certain cases in which the child's right to protection, in particular, is compelled to take on the role of an emergency fire brigade. Even in such cases, however, we need to remember the words of Josef Goldstein that "Law [and rights] may be able to destroy human relationships, but it does not have the power to compel them to develop." In other words, rights cannot be an Aladdin's Lamp that brings happiness. What children need most is the relationship itself, not an isolated benefit conferred in the name of "rights."

If we forget that law and rights have such limitations and think of the Convention on the Rights of the Child and its catalog as a "magna carta for children," we will be walking into the myth and fantasy of twentieth-century that "children's rights" constitute.

Conclusion

Well, we have taken a look at two aspects of the paradoxes being raised today by the concept of children's rights. What should we be looking for in order to head off the dangers pregnant in such paradoxes? I want to conclude by searching for clues in terms of a reassessment of the image of modem man that lies behind the concept of the child's right to autonomy.

As I have mentioned, behind the concept of the child's right to autonomy is the surrealistic view of the child as "a little acorn that grows up autonomously." It soon becomes plain to anyone that this view, when illuminated by the light of ordinary everyday experience, is lacking in realism. It is no more than an idolization and romanticization of autonomy.

Nevertheless, why is it that this concept is so highly contagious that it is becoming a fixture in today's international conventions and conquering the western world? When we get to the bottom of the matter, we arrive at the modernistic image of man, dating from the eighteenth century onward, that regards complete autonomy in itself as a legitimate possibility and holds it up as the ultimate ideal. That is, the ideal depicts the individual as the Lone Rights-Bearer who has cast off all restrictions and connections and is self-determining and self-contained. What props up this ideal is a passion for emancipation-to throw off the shackles that bind and thereby gain freedom. The appearance of the child's right to autonomy that we are witnessing today is none other than a symbolic event that tells us that this ideal of modem man has finally reached down, two hundred years after the French Revolution, to the intermediating body positioned as the very basis of society-the family. In other words, human beings today, still possessed of a passionate emancipatory mindset, are now trying to push this ideal of modem man as "the consummate being who is completely self-contained" onto tiny three-year-old tots.

It is at just such an historically critical point in time, however, that we are discovering through a fine and pragmatic analysis of the parent-child relationship the reality that human relatedness steered by the dependency need is the condition which provides human beings with a road to self-definition. To borrow Dr. Doi's words again, "Man cannot possess a self without previous experience of amaeru."

But does the fact that autonomy and dependence share such a complementary relationship only hold true in childhood? Is the dependency need something that people conquer so that it vanishes out of sight when they reach adulthood? Is the human being really such a dichotomous creature? I think most certainly not: A close look at ourselves reveals the dependency need, albeit in changed form, operating implicitly wherever sound human relationships and interdependency have been formed in a society. In other words, the dependency need does not vanish but takes on different form to sustain our autonomy. E. Erickson, who is of the same school of Freudian theory as Doi, calls the sensation of amae gratification experienced within the mother-child relationship as Basic Trust. In this connection he states: This bipolarity of recognition is the basis of all social experiences. Let nobody say that it is only the beginning, it passes, and it is, after all, childish...I have called this early treasure "basic trust."

If we now return to the subject of modern social theoretical concepts armed with an understanding of human nature as I have described it, the historical position occupied by the issues we are confronting today becomes apparent.

Modem society has started out with the binomial, confrontational framework of "freedom from restraint," and pursued autonomy, which materialized when connections and restrictions were thrown off, as an article of faith. As often as not, dependence and relatedness have been equated with humiliating subordination and inferiority and therefore tended to be relegated to the subconscious. It is fair to say that modern society did not possess sufficient experience or vocabulary to positively evaluate human dependency. As a result, the ironic reality we are facing today is that autonomy dissociated from dependency leads to the impoverishment of that autonomy and eventually offsets it. Family Law scholar Bruce Hafen, who is one of the speakers at this conference, points precisely to this historical reality when he says, "The waning of belonging contributes ultimately to the waning of actual autonomy and meaningful individualism." To put it another way, when modern society drove the dependency need into the subconscious, it set into place the conditions for the phenomenon of family dissolution we are experiencing today.

The tasks imposed by modem legal and social theory also essentially boil down to this one point. That is, to borrow the phrasing of German philosopher Han Meier, to release the concepts of human autonomy and freedom from an obsession with emancipation and one-dimensional binomial confrontation held at the outset of modem society, and reconnect them to the dependency and human relatedness that are the real supports of autonomy, and further, to bring them back into dynamic mutual association with our obligation to aid and support one another that is an extension of dependency and human relatedness.

Needless to say, these are difficult tasks. But if we succeed in them we will have found the road that leads us beyond the dangers posed by the twentieth-century myth of children's rights.