Vygotskian Approach to the Ontological Justification of the Children's Right to Express Their Views

人们普遍认为，《联合国儿童权利公约》中最重要的条款是第12条。该条款规定，当成年人决定影响儿童的事情时，儿童有自由发表意见的权利。然而，该条款的法律意义及其对儿童发展的意义尚未得到澄清。本研究试图以维果茨基的生理学理论为基础来澄清这些问题。本研究的结果如下：1.两种两极分化的儿童权利话语，即权利的意志理论和权利的利益理论，解释了第12条的含义，因为它们都是关于儿童发展的心理学理论，认为它是将非理性和非社会的心理状态转移到理性的和社会的心理状态。根据这一理论，几乎没有理由成年人应该给予儿童所表达的观点应有的重视，因为儿童之间对话的主要作用是…2.要使第12条在儿童权利话语中占有适当的位置，应借鉴维果茨基的心理学理论，从儿童出生起就将儿童视为主体，并看到成年人对儿童作为人的发展所必需的儿童欲望和情感的反应。3.由于法律的本质特征是其形式性，法律不可能保证儿童与成人之间的互动关系，因此法律对实现第12条的重要作用是使这种关系得以实现。法律的作用是为这种关系提供条件，例如，减少每名教师的学生人数，禁止政府干预这种关系，使成年人无法回应儿童的声音，并为不享受这种关系的儿童提供享受这种关系的机会。较少

It has been widely agreed that the most important article of the U.N. Convention on the Rights of the Child is Article 12. This article stipulates children's right to express their views freely when adults decide something affecting children. However, the legal meanings of the article and its meanings for children's developments have not been clarified yet. This study tries to clarify these questions based upon the physiological theory of Vygotsky. The results of this research are as follows.1.The two polarized children's rights discourses, namely the will theory of right and the interest theory of right, explain the meanings of Article 12, because they share the same psychological theory on child development, which sees it as the dislodgement of irrational and asocial situation of mind to rational and social one. According to this theory, there is little reason why adults should give due weight to the views expressed by children, because the main role of the dialogue between children … More and adults is to kick out unreasonable though from children's mind and insert reasonable on into it.2.To give Article 12 the appropriate place in children's right discourse, one should draw on the psychological theory of Vygotsky, which see children as subject from their birth and see the adults' responsiveness to desires and feelings of children indispensable for the development of the child as human being.3.Because law's essential characteristic is its formality, it is impossible for law to assure the interactive relationship between children and adults, the mail role of law for the realization of Article 12 is to "enable" this relationship. The roles of law are to provide conditions which enable this relationship, for example, lowering the number of students per teacher, to forbid the government from such intervention into the relationship as making it impossible for adults to respond to voices from children, and to provide children who do not enjoy such relationship the opportunity to enjoy it. Less