Critical Legal Theory and Childhood Studies
Viterbo, H. (2024). Critical Legal Theory and Childhood Studies. In N. Brando, D. Lawson and H. Stalford (eds.) Children in Theory: Theoretical Methods and Approaches to the Study of Childhood. Online Masterclass Series. University of Liverpool.
In this session, Hedi Viterbo introduces critical legal theory as a theoretical method, and looks at the core concepts and issues that a critical legal scholar would look at when studying childhood.
This introduction to Critical Legal Theory focuses on the analysis and application of three concepts to the study of childhood and the law: fluidity, violence, and actors. Fluidity refers to the variable ways in which the law is read, interpreted and applied, and how childhood is understood, interpreted and implemented in law. Violence, from a critical legal perspective, analyses how fundamental concepts and practices within the law, and social treatment of childhood are inherently violent. Finally, the study of actors refers to the human faces of the law; it looks at who enacts law, who puts it into practice, who enacts childhood, and who makes it into reality.
This session provides guidance on the fundamental ways of thinking, and on key concepts that structure critical legal analyses of childhood and children’s rights. Key issues addressed:
- Fluidity in the law and the concept of childhood.
- How fluidity affects how we should understand the roles of law.
- How fluidity affects how we should be weary of essentialism in childhood.
- Violence inherent in the law and in the concept of childhood
- How violence inherent in the law affects how we should read it and interpret it.
- How violence inherent in the concept of childhood affects our understandings of dependence and ignorance.
- The human faces of the law
- The various legal and non-legal actors that affect how we understand the law
- The role of children in affecting the law.
A Conversation on Critical Legal Theory and Childhood Studies
Holub-Moorman, W. and Viterbo, H. (2024). A Conversation on Critical Legal Theory and Childhood Studies. In N. Brando, D. Lawson and H. Stalford (eds.) Children in Theory: Theoretical Methods and Approaches to the Study of Childhood. Online Masterclass Series. University of Liverpool.
Standing on the introduction to critical legal theory as a theoretical framework, Hedi Viterbo and Will Holub-Moorman discuss key issues and concepts (agency and violence) in relation to child law and children’s rights, and look forward towards potential alternatives to ageist legal orders. Among the issues addressed are the following questions:
- Agency: How can critical traditions in legal theory and childhood studies learn from each other with respect to analysing legal agency?
- What is Agency? How should we avoid defining it?
- Violence: Why does the normalisation of violence in both of childhood and the law so effective?
- How can critical legal theory and childhood studies be put into conversation to study the limitations of conceiving children’s rights primarily as dependency rights?
- How can legal scholars write about children in a way that doesn’t assume or reproduce the privatised status of childhood?
- Political Imagination: What could societies look like under a less ageist legal order?
- How does ageism shape, legitimise and intersect with other forms of sociolegal oppression?
Further References and Sources
Core References on Critical Legal Theory
- Christodoulidis, E., R. Dukes, and M. Goldoni, eds (2019), Research Handbook on Critical Legal Theory, Cheltenham and Northampton: Edward Elgar.
- Ewick, P and S. S. Silbey (1998), The Common Place of Law: Stories from Everyday Life, Chicago: University of Chicago Press.
- Fraser, Nancy and Linda Gordon. “A Genealogy of Dependency: Tracing a Keyword of the US Welfare State.” Signs 19, no. 2 (1994)
- Goldfarb, Phyllis. “From the Worlds of Others: Minority and Feminist Responses to Critical Legal Studies,” New England Law Review 26, no. 3 (Spring 1992), 683-710
- Gordon, Robert. “Critical Legal Histories,” Stanford Law Review 36, no. 1/2 (1984)
- Sarat, A. and T. R. Kearns, eds (1993), Law’s Violence, Ann Arbor: University of Michigan Press.
- Schlag, P. (2009), ‘The Dedifferentiation Problem’, Continental Philosophy Review, 42: 35–62.
- Young, Iris Marion. "The logic of masculinist protection: Reflections on the current security state." Signs: journal of women in culture and society29, no. 1 (2003): 1-25.
Critical Legal Theory and Childhood Studies
- Appell, A. R. (2009), ‘The Pre-Political Child of Child-Centered Jurisprudence’, Houston Law Review 46 (3): 703–58.
- Cooper, Melinda. Family Values: Between Neoliberalism and the New Social Conservatism (Cambridge, MA: Zone Books/MIT Press, 2017)
- Hagestad, G. O. and P. Uhlenberg (2005), ‘The Social Separation of Old and Young: A Root of Ageism’, Journal of Social Issues, 61 (2): 343–60.
- Jenks, C. (2005), Childhood, 2nd edn, New York: Routledge.
- King, M. and C. Piper (1995), How the Law Thinks About Children, 2nd edn., Aldershot: Ashgate.
- Liebel, M. (2020), Decolonizing Childhoods: From Exclusion to Dignity, Bristol and Chicago: Policy Press.
- Minow, Martha. “Rights for the next generation: A feminist approach to children's rights.” Women's LJ9 (1986)
- Mnookin, Robert. In the Interest of Children: Advocacy, Law Reform, and Public Policy. New York: WH Freeman, 1985.
- Pearson, Susan J. The Rights of the Defenseless: Protecting Animals and Children in Gilded Age America. Chicago: University of Chicago Press, 2011.
- Rosen, Rachel, and Katherine Twamley. Feminism and the Politics of Childhood: Friends or Foes?. UCL Press, 2018.
- Surkis, Judith. “Family Law Matters,” History and Theory 60, no. 2 (2021)
- Viterbo, H. (2023), ‘Critical Childhood Studies Meets Critical Legal Scholarship’, in Balagopalan, S., J. Wall, and K. Wells, eds, The Bloomsbury Handbook of Theories in Childhood Studies, London and New York: Bloomsbury, 349–364.
Critical Legal Case Studies on Childhood
- Brewer, Holly. By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (Chapel Hill: University of North Carolina Press, 2008)
- May, M. (1973), ‘Innocence and Experience: The Evolution of the Concept of Juvenile Delinquency in the Mid-Nineteenth Century’, Victorian Studies, 17 (1): 7–29.
- Meiners, Erica. For the Children? Protecting Innocence in a Carceral State (Minneapolis: University of Minnesota Press, 2016)
- Mnookin, R. H. (1975), ‘Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy’, Law and Contemporary Problems 39 (3): 226–293.
- Renfro, Paul M. Stranger Danger: Family Values, Childhood, and the American Carceral State. New York: Oxford University Press, 2020.
- Robcis, Camille. The Law of Kinship: Anthropology, Psychoanalysis, and the Family in France. Ithaca: Cornell University Press, 2013
- Viterbo, H. (2021), Problematizing Law, Rights, and Childhood in Israel/Palestine, Cambridge and New York: Cambridge University Press.
- Viterbo, H. (2023), ‘Just for Kids? How the Youth Decarceration Discourse Endorses Adult Incarceration’, Criminology & Criminal Justice.
On Agency
- Johnson, Walter. “On Agency,” Journal of Social History 37, no. 1 (2003)
- Olsen, Stephanie, et al. "A Critical Conversation on Agency." The Journal of the History of Childhood and Youth17, no. 2 (2024): 169-187.
This project has been developed by members of the European Children’s Rights Unit with the support of the British Academy’s Newton International Fellowship award No. NIFBA19\190492KU. For more information on the series, please contact Nico Brando.