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The Prepolitical Child of Child-Centered Jurisprudence
- University of Georgia Press
- Chapter
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19 Childhood studies scholarship has revealed that childhood, the category that holds, defines, and governs children, is to be a social construct contingent on time and place. While young children are, generally speaking, vulnerable and dependent, the length, contours, and extent of that dependency, as well as the assignment of children to dependency, vary greatly across time, nation, geography, and race. This central insight, that childhood is not natural, has yet to gain currency in legal studies. Although legal scholars have developed critical jurisprudence regarding race and gender, illustrating how these seemingly natural categories are socio-legal constructions that create and maintain power and privilege, jurisprudential studies have not interrogated childhood or explored the work that childhood performs in law and society. The legal construction of children in the United States as dependent— and of dependency as private, familial, and developmental—obscures both the contingency of childhood and the law’s role in creating and maintaining childhood. By defining children as vulnerable and situating them in the private realm, the law defines and regulates childhood as if it were natural and universal rather than political and diverse. This construction submerges questions about how children differ as individuals and by virtue of their membership in racial, ethnic, national, age, gender, and economic groups. This construction also limits interrogation of what the public might owe these dependent persons and what public roles children play. With childThe Prepolitical Child of Child-Centered Jurisprudence Annette Ruth Appell 20 Annette Ruth Appell hood safely ensconced in the family and without a voice outside the family, the polity can avoid universal questions and answers about what children, as persons, need and want, what goods children, as a class, should have, and what material conditions, opportunities, and influences are optimal for all children. Instead, we ask what our own children should have and what they need for success. Childhood is a transformative site within the context of a larger system that treats dependency as both autonomy promoting, as a relational and generational matter, and autonomy limiting, as a functional matter. In other words, the privatized dependency of childhood promotes the autonomy of adults, leaving them free to employ their values through child rearing and in training their own children to become morally autonomous democratic citizens upon adulthood; this privatized dependency also limits the autonomy of the child and the caregiver—the former lacking legal or political authority by virtue of being a child and the latter rendered dependent through the provision of private, unpaid care for dependent children. Moreover, childhood is a socially constructed category deeply connected to race, gender, class, and citizenship, in which children’s vulnerability and dependency perform differently along racial, class, and gender lines, factors that affect not only children themselves but also the adults on whom they depend. Unlike other subordinated groups, children will outgrow their subordination as children, but whether they will be subordinated as adults depends very much on their childhood, that is, their race, class, and gender, or perhaps more accurately the race, class, and gender of their parents. Legal theory has not systematically explored from the child’s perspective the political aspects of locating this developing child in the family and then privatizing most aspects of the child’s dependency. Following the lead of feminist jurisprudence, a jurisprudence of childhood might ask the same sorts of questions about how the law constructs childhood. Whom does this construction serve? Who benefits from it and who suffers? How does the relegation of our future citizens to incapacity and need serve children and adults? Who thrives under these conditions and who does not? How much of children’s legal coverture is necessary and helpful? Why do children not have the right to vote? Why do children not hold political office? Both feminist and child-centered jurisprudence share concerns about dependency and agency, but they each have different subjects (women and children, respectively) and categories of analysis (gender and youth, respec- [54.208.238.160] Project MUSE (2024-03-28 19:56 GMT) The Prepolitical Child 21 tively). Feminist jurisprudence has delegitimized the legal incompetence and dependency of the female subject. By examining how law constructs gender, feminist jurisprudence has, at least in theory, denaturalized gender, taking women out of the private realm of family and situating them in the market and the polity, has shown that families are not prepolitical; removed women from dependency on fathers and husbands, and has freed them from the dependency that arises out of caregiving. In...