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Abstract
This paper reviews and reflects upon the literature in which children's rights and legal pluralism stand at the core. This scholarship has mainly addressed three research questions: how global children's rights standards interrelate with local normative orders and practices; how children as well as justice providers navigate legally plural orders; and how legal pluralism interplays with social change and the realisation of children's rights. As regards research topics, intra-family relations have received more scholarly attention than the position of children in the wider society. Even though, often implicitly, a variety of theoretical approaches may be discerned, particularly regarding the conceptualisation of children's rights (e.g. as semi-autonomous or static) and legal pluralism (e.g. as dichotomous or multi-level). In the conceptualisation of children and childhood, a social constructionist approach is predominant. On this basis, we formulate a number of suggestions for future research. It is concluded that further developing the subfield of children's rights and legal pluralism is worthwhile, not only because of the specificity of the knowledge needed, but also because this may deepen our understanding of the interplay between legal pluralism and human rights more generally.
Acknowledgements
This research was supported by the Research Foundation Flanders (FWO) under the project ‘Reconciling Human Rights and Customary Justice’ and by the Belgian Science Policy Office (BELSPO) under the Inter-University Attraction Poles Programme ‘The Global Challenge of Human Rights Integration: Towards a Users' Perspective’.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1. Throughout this paper, the terms ‘legal’ and ‘normative’ pluralism are used in an interchangeable way. The definitions of ‘law’ and ‘legal’ have been the topic of extensive academic debates (see e.g. Von Benda-Beckmann [Citation2002]; Tamanaha [Citation2000]; Woodman [Citation1998]). For the purposes of the present review, we adopt a definition of legal pluralism in terms of the co-existence in a same locality of multiple prescriptions regarding children, which generate social expectations, reasons to act and perceptions of appropriateness and obligatoriness. These constitute important features of the contexts and conditions in which children's rights operate, independently from whether these prescriptions are recognised or not by state law.
2. Nevertheless, in the remainder of the CRC, this broad interpretation of caregivers does not reoccur in the same way, which reinforces the impression that the drafters of the CRC mostly had the Western nuclear family in mind (Barsh Citation1989).
3. Similar efforts have been undertaken as regards children's rights research in general (Reynaert, Bouverne-de-Bie, and Vandevelde Citation2009) and in education (Quennerstedt Citation2011).
4. Although we recognise the value of grey literature, the focus of our undertaking was academic research.
5. Preliminary findings of this research were presented at the Conference of the Commission on Legal Pluralism in August 2013 in Manchester, UK. We are grateful to the panel participants for their comments and suggestions.
6. But see the reflection in Section 3 about social institutions that become dysfunctional due to rapid socio-economic changes.
7. But see Section 2.3 on the importance of economic constraints.
8. But see Lecoyer and Simon in this issue.
9. Justice providers may be qualified as ‘judicial users’ (when they impose the realisation of human rights, e.g. courts) or ‘supportive users’ (when they support the realisation of human rights, e.g. mediators) (Desmet Citation2014, 130–131).
10. Compare with Ouis (Citation2009), who proposes to use the progressive aspects of Islam, together with laws and the CRC, to challenge customs relating to sexual abuse. According to Ali (Citation2014, 513), however, Ouis leaves the tensions between Islam and human rights unexplored.
11. See also Mulitalo and Corrin in this issue.
12. One comparative research (Taylor et al. Citation2012) includes case studies from Australia, India, Israel and New Zealand, which defies the categorisation made here.
13. Although some of their names point to possible roots in other regions, the overwhelming majority of authors are institutionally based in Europe or North America, with the exception of the scholarship dealing with the African region. This may of course be due to our selection criteria, focusing on international academic publications in English, and it does not imply that no research on children's rights and legal pluralism is done by researchers affiliated to institutions in the Global South beyond Africa. Nonetheless, this at least indicates that the latter do not find their way to the ‘mainstream’ academic output channels, and consequently have less influence on the international academic discourse on children's rights and legal pluralism.
14. On the challenges related to interdisciplinary research on children's rights, see further Desmet et al. (Citation2015, 421–423).
15. Original emphasis.
16. But based on prior fieldwork.