Irina V. Dudenkova

RANEPA, Moscow, Russia

The legal and social problem of determining the age of majority has serious theoretical roots. The article reveals the causes and significance of the controversy surrounding modern parenting practices and the legal practices of
child protection: on the one hand, the child is thought of as an object of protection and patronage; on the other, there is a trend towards the expansion of children’s rights. An analysis of the category of legal competence—on the
basis of which the distinction between child and adult is made—shows that it can be boiled down to two historical interpretations of competence as the ability to act: the potentiality of actuality, proposed by Aristotle, or the actuality of potentiality, the ability to be a subject of self-determination, proposed by Kant. The legal procedure for the recognition of minors ignores these aspects, rendering the legal status of the child problematic. The category of the “order of recognition” makes it possible to single out an important but opaque category for the law: the connection between adults and children. Children are socially institutionalized not only as the young (puer), but also as daughters and sons (filius). The analysis of parenthood as a social order of recognition does not make it possible to unambiguously solve the problem of adulthood; grown-up children never cease to be children for their parents. However, a distinction between the orders of recognition is necessary for two reasons. Firstly, to avoid the need to solve the intended contradiction between the two interpretations of the possibility of acting for the child. Secondly, because of the commixture of the orders of recognition, it is possible to think of a child as a radical agent—in fact, a sovereign—since their autonomy may be due to a purely biological fact of birth. This raises the problem of regulating not the legal relations between adults and children, but the legal distinction between the orders of recognition.
Keywords: age of majority, legal competence, possibility, sujet, order of recognition, natality