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When thinking about children's rights, priority tends to be given to protecting their welfare gains, while limiting their right to exercise freedom and agency. The 'incapacity” hypothesis serves as a justification for limiting children's freedom and agency. Using the capabilities approach (CA) as a method of conceptualizing what is owed to individuals, this article shows that the justification for restricting the freedom of ”incapacitated“ individuals is not as straightforward as is assumed. To understand the role played by capabilities in the justified restriction of freedom, it is necessary to assess what it means to be ”(in)able“ and how this ”incapacity“ can translate into particular privileges or restrictions. The article therefore sets out to answer the following questions: firstly, how is the concept of ”capacity“ to be understood in the CA? And, secondly, how does capacity relate to our understanding of the legitimate restriction of freedom and action? The article proposes an answer to the first question through an evolutionary and dynamic understanding of ”capacity“ It further argues that the process by which capacity develops (the process of capacity formation) should be taken into account when assessing what is owed to an individual in terms of justice.
Nico Brando is a British Academy-funded Newton International Fellow working at the Centre for Children's Rights at Queen's University Belfast. He specializes in moral and political philosophy, and is particularly interested in issues relating to the political treatment of marginalized groups, children's rights and the capabilities approach.
