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244 ALICE HEARST 244 Recognizing the Roots Chapter 14 ALICE HEARST AS “IDENTITY” HAS EMERGED as a significant category of meaning in modern life, the idea has also emerged that it should be protected by a variety of legally articulated “identity rights.” Both groups and individuals have mobilized to assert rights to recognition of and protection for identity. Indeed, a significant number of international human rights documents now specifically endorse a variety of as yet undefined identity rights, urging signatory states to take steps to protect different facets of personal, national, and cultural or communal identity. This drive to establish identity rights as a distinct legal and political category has emerged hand-in-hand with the recognition of identity itself as fluid and fragmentary. In a world of increasingly porous social, political, and cultural boundaries, questions of identity have tremendous political importance. Yet working out the concept of identity is difficult; as Jack Meacham notes in Chapter 4, the ways in which identity can be discovered are multiple. At one level, the law has always been intimately concerned with questions of identity: the recognition conferred or withheld by the law has a significant impact on how individuals are recognized in the social world. By categorizing human actions, laws create and re-create identities at both a local and a global level, differentiating between tortfeasors and victims, property owners and trespassers , citizens and aliens. In the United States, in fact, the protection of individual identity has a long legal history that stretches from common-law protection of personal reputation to contemporary articulations of autonomy interests in the form of constitutionally guaranteed privacy rights. Through legal categories that define the relations among individuals, families , communities, and nations, the boundaries of belonging itself are delineated. Children’s Identity Rights Recognizing the Roots 245 Typically, the relationships defined by those categories reinforce generally shared normative values in local and national communities, as in the general presumption in the United States that biological parents should be the primary caretakers for their children and thus should provide stability in a social order. Given the complex social relations that mark modern life, however, the values reflected in law may be contradictory; the law may create categories and assign roles that lead to intractable conflict or incompatible identities. Conceptualizing Children’s Identity Rights Although identity rights per se have not been substantively articulated for children in the United States, debates over the recognition of such rights loom on the horizon. Article 8 of the United Nations Convention on the Rights of the Child, for example, expressly notes that every child has a right to “preserve his or her identity.” One commentator has pointed out that the provision might be interpreted to refer to any of at least four forms of identity: familial, communal, biological, or political (Stewart 1992). Although the United States has not yet signed the Convention and has not been particularly responsive to pressure from the international human rights community to recognize domestically all the rights articulated in international documents, such international rights discourses could affect the recognition and development of a variety of identity rights for children in the United States in the future. And conceptualizing identity rights for children requires envisioning children not simply as passive objects of legal categorization but as individuals taking an active role in shaping their identities. Children are defined by legal categories just as fully as adults are, and children may indeed be more susceptible than adults to such assignments on a dayto -day basis. By recognizing some relationships and not others—privileging one caregiver over another, for example—the law often defines the context within which a child develops his or her identity. Laws bind the child into the intimate context of the family and caregivers as well as into a multitude of outside relationships in the community and nation. How, then, does the law imagine children’s identities, and how do such imagined identities overlap and interact? Answering this question requires understanding both the levels at which the law operates to stabilize or destabilize children’s identities as well as how the law is invoked to mediate among those different levels of belonging. Many of the knottiest problems in family law over the last several decades have involved children’s identities at the most local level, although they have not been labeled as identity-rights issues,. Historically in the United States, the law has mapped children into relationships of dependence and caregiving with a [18.188.61...

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