Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 74
2022
ISSN 0798-1406 ~ Depósito legal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión ycon fron ta cióndelasideas y avan ces cien tí fi coscon com pro mi soso cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nilda Marín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 40, Nº 74 (2022), 863-879
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 15/07/22 Aceptado el 12/09/22
The concept of “Child” and its historical
and legal description
DOI: https://doi.org/10.46398/cuestpol.4074.48
Dilafruz Karimova *
Nagima Baitenova **
Mahfuza Alimova ***
Mohira Abdullaeva ****
Odiljon Ernazarov *****
Laziza Alidjanova ******
Abstract
There are a number of questions in the theory and practice of
law: “Who is a child?” “When does childhood begin and end?”,
“What is the denition of the term ‘child’?”, “What does the
concept of ‘child’ include and what is the content that makes it
up?”. In this vein, the aim of the article was to analyze the issue
of children’s rights, the discussion of which is still under debate
and does not fully satisfy all parties involved. The authors used a set of
methods including: logical, chronological and systematic approaches,
comparative analysis, as well as the results of social surveys, literature
analysis and statistical methods. As a result, the content and essence of
such historical and legal terms as “Rushd”, “adna sinn al-bulug”, “murohiq”
were claried. The authors conclude that at present there is a disagreement
among researchers in determining the legal status of the concept of “child”
and in elaborating the denition of “child” itself, so one of the ways to solve
this problem is the proposal to change the legal denition of the concept of
“child” by expanding its scope and meanings.
Keywords: children’s rights; rights in Central Asia; history and laws;
concept of “Child”; Islamic law.
*
Doctor of Sciences, Acting Associate Professor, International Islamic Academy of Uzbekistan,
Tashkent, Uzbekistan ORCID ID: https://orcid.org/0000-0002-4105-2611
** Doctor of Sciences, Professor, Department of Religious and Cultural Studies, Faculty of Philosophy
and Political science, Al-Farabi Kazakh National University, Almaty, Kazakhstan. ORCID ID: https://
orcid.org/0000-0002-8318-4196
*** PhD, Lecturer, International Islamic Academy of Uzbekistan, Tashkent, Uzbekistan. ORCID ID:
https://orcid.org/0000-0002-5980-0171
**** PhD, Lecturer, International Islamic Academy of Uzbekistan, Tashkent, Uzbekistan. ORCID ID:
https://orcid.org/0000-0003-0417-5556
***** PhD, Lecturer, International Islamic Academy of Uzbekistan, Tashkent, Uzbekistan. ORCID ID:
https://orcid.org/0000-0001-7892-8894
****** Lecturer, International Islamic Academy of Uzbekistan, Tashkent, Uzbekistan. ORCID ID: https://
orcid.org/0000-0002-8772-8277
864
Dilafruz Karimova, Nagima Baitenova, Mahfuza Alimova, Mohira Abdullaeva, Odiljon Ernazarov
y Laziza Alidjanova
The concept of “Child” and its historical and legal description
El concepto de «Niño» y su descripción
histórica y jurídica
Resumen
Hay una serie de preguntas en la teoría y la práctica del derecho:
«¿Quién es un niño?» «¿Cuándo comienza y termina la infancia?», «¿Cuál
es la denición del término «niño»?», «¿Qué incluye el concepto de «niño»
y cuál es el contenido que lo conforma?». En este orden de ideas, el objetivo
del artículo fue analizar la cuestión de los derechos del niño, cuya discusión
sigue siendo objeto de debate y no satisface plenamente a todas las partes
implicadas. Los autores utilizaron un conjunto de métodos que incluyen:
enfoques lógicos, cronológicos y sistemáticos, análisis comparativos,
así como los resultados de encuestas sociales, análisis de la literatura y
métodos estadísticos. Como resultado, se aclaró el contenido y la esencia
de términos históricos y jurídicos como «Rushd», «adna sinn al-bulug»,
«murohiq». Los autores llegan a la conclusión de que en la actualidad existe
un desacuerdo entre los investigadores a la hora de determinar el estatus
legal del concepto de «niño» y de elaborar la propia denición de «niño»,
por lo que una de las formas de resolver este problema es la propuesta de
cambiar la denición legal del concepto de «niño» ampliando su alcance y
signicados.
Palabras clave: derechos del niño; derechos en Asia Central; historia y
leyes; concepto de «Niño»; ley islámica.
Introduction
The article examines the historical and legal basis of the concept of
“child” from a theoretical point of view, analyzes the controversial aspects
of the modern interpretation of the concept, as well as the main sources on
the rights and interests of the child.
It is known that to date, international and national legal instruments
dene a child as “a person who has reached the age of eighteen (adult)”.
However, the minimum age limit, i.e. when a child’s life begins, is not clear.
The article emphasizes the expediency of setting the period from childhood
to 18 years, given the need to protect the interests of the fetus. On the basis
of the analysis, the scientic and legal essence of the concept of “child” was
studied, and legal scholars (Ganibaeva, Nikonov, Besedkina, Malgorzata,
Sologub) expressed their views on this issue. the author’s denition of the
concept has been proposed in the context of ongoing scientic discussions
on his considerations. This section also presents the results of social surveys
conducted among children in dierent regions of Uzbekistan to understand
the meaning of the term “child”.
865
CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 863-879
According to this, most children do not know about the age limit, and
the necessary recommendations are being made to address this issue.
1. Research Methods
The research has been accomplished according to the principles of
objectivity, diversity of opinions, completeness and comprehensiveness.
Authors use logically cohesive, chronologic and systematic approach
in investigating the child rights in the territory of Central Asia. The
research also uses comparative analysis, public opinion gathered via social
survey, research of manuscripts and statistical techniques to acquire new
knowledge.
It includes the Avesto rules on the boundaries of childhood in Central
Asia, legal traditions, sources of Islamic law, Jami ahkam as-sigor, Fatwa
al-attobi, and Legal Relations of the Muslim Population. Historical and legal
sources such as “Turkistan”, “Russian legal relations” and Soviet colonial
law, as well as modern norms of national and international law.
2. Results and Discussion
Law is a historical and social reality, which is formed as a means of
ensuring the balance of dierent relations between people and their
regulation. From this point of view, law has developed as a norm of social
relations, a way to keep them in balance, a socially relevant requirement.
Later, legal norms became the norm, which required and guaranteed the
introduction of states. Accordingly, legal norms are interpreted as a set
of certain rules and requirements, obligations and rules governing social
relations, which are introduced by the state authorities and protected by
the state. Thus, one of the legal norms, rules, obligations and requirements
recognized by the modern civilization of mankind, which has developed
its own historical and social development and has been developed since
ancient times, is the issue of children’s rights.
As the child is physically, physiologically and mentally immature, there
is a great need for a special defense system, mechanisms and traditions to
protect it (Kokina, 2022). This set of needs is in fact equal to his/her vital
needs, the requirements and conditions necessary for his/her survival. It is
these systems and mechanisms that guarantee the rights of the child.
Children’s rights are a unique, inimitable, complex, multifaceted
phenomenon, which today are shaped by their essence in relation to the
child and his/her human status by:
866
Dilafruz Karimova, Nagima Baitenova, Mahfuza Alimova, Mohira Abdullaeva, Odiljon Ernazarov
y Laziza Alidjanova
The concept of “Child” and its historical and legal description
1. a set of cultural, spiritual, educational, legal knowledge, experience
and practice, i.e., legal culture;
2. The system of national traditions, the system of folk customs, the
legal consciousness and mind-set concerning the child prevailing in
societies;
3. The extent to which the guarantees of the rights of the child are
applicable in all societies, i.e., the question of their realization;
4. The institutional systems, infrastructure, civil society institutions
and their comprehensive activities for the implementation,
protection and enforcement of the rights of the child in society.
However, the most dicult issue when considering the rights of the
child, the solution of which is still under discussion, did not fully satisfy
all the parties involved, therefore it is one of the scientic and theoretical
issues that cause certain diculties in the theory and practice of law is
to determine the answers to questions like “Who is a child?” “When does
childhood begin and end?”, “What is the denition of the term “child”?”,
“What does the concept of “child” include and what is the content that
shapes it?”. It can be observed that practitioners, scientists and lawyers
around the world are trying to nd answers to these questions and develop
a clear denition.
On the one hand, the “child” is a reality that came into being as soon as
man came into being. That is, the concept of the child has been introduced
into legal practice since the time it rst appeared, although in a more
primitive form, and special terminology has been used to describe it. From
the time of the child’s birth, humanity has understood that the child and
his/her physiological needs exist, and the skills and norms to meet them as
much as possible have been developed and put into practice.
If this were not the case, humanity would be deprived of the opportunity
to grow in quantity. However, on the other hand, the scientic, theoretical,
socio-historical and legal understanding of the concept of “child” and its
specic denition has historically been very recent, and this denition is
more concerned with the physiological maturity of the child, his/her age
dierence, rather than dening the socio-legal status of the child.
In this regard, in our study we will try to consider the concept of “child”
and the process of its understanding on the basis of the following factors:
• Scientic and theoretical legal understanding of the concept of
“child”;
• National-mental understanding of the concept of “child” in the
system of national values of the Central Asian people, family
traditions, folk pedagogy and the practice of daily life of the Central
Asian people;
867
CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 863-879
• Socio-legal understanding of the concept of “child” in the world, in
particular in Western philosophical and social thought;
• Understanding the concept of “child” in Islamic traditions, as well
as in world religions;
• Spiritual and educational understanding of the concept of “child” in
the Central Asian region during its development, at dierent stages
of historical development.
The attitude of the peoples of Central Asia and other nations to the
concept of “child” in everyday life is based on folk traditions and family
values, formed as more national-mental criteria, and this set of criteria is
passed from generation to generation, highly valued as a family tradition.
In Uzbekistan, the legal understanding of the concept of “child” appeared
much earlier than the traditions of other nations and through the system
of care, maintaining, nurturing and upbringing the child, through various
taboos in the form of traditions, incentives, and rituals incorporated into
the daily life of child protection, and later in harmony with Islamic beliefs
scientically and theoretically, already in the Middle Ages, deeply and
comprehensively developed in accordance with the requirements of its
time.
If we consider the issue of understanding the problem of the rights of
the child and its application in legal practice from a comparative point of
view, it should be noted that it was in Central Asia that it rst appeared
and was widely used. This historical fact conrms that the content and
scientic problem of the “right of the child” in the framework of the existing
civilizations in Central Asia was rst put into practice in the history of
mankind, and no other such phenomenon has existed in the history of
mankind.
Therefore, given that the “right of the child” and its development in
Central Asia for the rst time in the history of its time, there are no other
similar events in human history to date, it is reasonable to assess such a
historical fact as a unique legal phenomenon.
National-historical thinking about the personality and concept of the
child went through stages like - the main goal of human life ↔ ospring,
pregnancy ↔ newborn, child ↔ the greatest value ↔ God’s gift ↔ child
and his/her health, physical, mental and spiritual development ↔ child
rearing ↔ child education ↔ the owner of certain moral norms ↔ a
system of primitive rights of the child.
From ancient times, “child” is power and a gift of God, the main
purpose and essence of life, spiritual blessing, family’s happiness, spiritual
nourishment, a symbol of joy, a continuation of generational traditions, one
of the important foundations of national and spiritual values of the Uzbek
people.
868
Dilafruz Karimova, Nagima Baitenova, Mahfuza Alimova, Mohira Abdullaeva, Odiljon Ernazarov
y Laziza Alidjanova
The concept of “Child” and its historical and legal description
The concept of the child, the child and his or her development, in
particular the family and social protection of the child throughout his or
her life, has long been formed and developed in Uzbekistan within the
framework of national thinking, and is therefore a historical and social
event for Uzbekistan.
The humanistic requirements for the child and his personality have
been set before our society in every historical period in Uzbekistan, and
various means, methods, mechanisms and systems of their formation have
been developed.
Views on the historical dynamics of the concept of the child in the
territory of Uzbekistan consisting of a set of integral and interrelated
categories as: child ↔ healthy child ↔ moral owner ↔ capable child ↔
master of certain professions ↔ successor of family values ↔ successor
↔ the main element of the family’s social status ↔ object of education ↔
enlightened and educated child ↔ mature child ↔ adult ↔ happiness of
family and parents.
If we dene the concept of the child in the territory of Uzbekistan
and its semantic change and transformation in the structure of dierent
views, ideas and thoughts, the stages of its content in dierent historical
periods, it manifests the following civilizational sequence developed in
interconnectedness and continuity, a historical algorithm for the conception
of the child.
This algorithm, on the one hand, reects the content of the evolutionary
stages of world civilizations, on the other hand, embodies a system of
national views on the child and his place in society.
We have dened the stages of the system of national views on the child
and his place in society as follows:
• Stages of historical formation of the system of national views on the
concept of the child and the rights of the child;
• The system of legal views on children in “Avesta”, “Sogdian
inscriptions”;
• The system of thinking related to the concept of the child in the rst
written and oral sources;
• Features of the views on the child and his rights, formed by the
scholars of Islam and Transoxiana as part of Islamic culture;
• Children’s rights during the Russian colonial period;
• Guarantees of children’s rights during the rule of a totalitarian
regime, their one-sided nature and social crisis;
869
CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 863-879
• The transition from the system of limited views on children’s rights
formed during the independence to the idea of a new “harmoniously
developed generation” and the creation of a relatively comprehensive
system of children’s rights.
In the spiritual heritage of the peoples of the East, many sources created
in the Middle Ages have always focused on issues such as generation, child
and his/her maturity and upbringing, raising a child as a craftsman.
In such works as “Kalila and Dimna”, “Sindbodnoma”, “A Thousand
and One Nights/ “Ming bir kecha”, “Qobusnoma”, “Gulistan” and “Boston”,
“Bahoriston”, “Shohnoma”, “Donishnoma”, “Monuments from ancient
peoples/ “Qadimgi halqlardan qolgan yodgorliklar”, “Saodatnoma”,
“Siyasatnoma”, “Rushnoma”,“ Qutadg’u bilig”, “Devonu lug’otit turk”,“Hibat
ul haqoyiq”, “Akhloqi Jamoliy”, “Hamsa”, which have become the spiritual
values of mankind, special place is given to the child and his/her great
position in human life, that the child is a gift of God and responsibility to
bring him/her up in the system of ethical and aesthetic values of humanity.
The advanced traditions of the position of the child and his place in
society have always been emphasized in the scientic-theoretical and
literary-spiritual views of the world-famous Eastern thinkers who grew
up in Uzbekistan like Muhammad Musa al-Khwarizmi (782-847), Abu
Nasr al-Farabi (870-910), Abu Rayhan Biruni (973-1048), Abu Ali ibn
Sina (980-1037), Yusuf Khass Hajib (XI century), Ahmad Yugnaki (XII-
XIII centuries), Pahlavan Mahmoud (1247- 1325), Mahmud Kashgari (XI
century), Alisher Navoi (1441-1501), as well as the great representatives of
Islamic culture and Islamic sciences, Imam al-Bukhari (810-870), Hakim at
Termizi (750 / 760-869), Az Zamakhshari (1075-1144), Imam al-Maturidi
(870-975), Burhaniddin Marginoni (1116-1197), great mystics Najm al-Din
Kubra (1145-1221), Ahmed Yasawi (aproximately 1050-1166 / 7), Yusuf
Hamadoni (1048-1140), Khoja Abdahadik al Gijduvani (rst quarter of the
12th century-1220), Khoja Bahauddin Naqshband (1318-1389), Su Alloyar
(1644-1721) and others.
In the independent Republic of Uzbekistan, the main goals of the rights
of the child and the child have developed in close connection with public
policy, and the rights of the child have been interpreted as a key element
and object of the state’s preventive and long-term development factors.
The issue of the rights of the child and children is developed on the basis
of a combination of national and universal values based on the following
principles of state policy:
• Ensuring full guarantee of children’s rights in all state programs
based on the denition of the main goals of building a new
democratic society;
• Constant concern for the fate of the child and his future, to follow
the path of constant provision of his needs;
870
Dilafruz Karimova, Nagima Baitenova, Mahfuza Alimova, Mohira Abdullaeva, Odiljon Ernazarov
y Laziza Alidjanova
The concept of “Child” and its historical and legal description
• Continuous legal and social protection of children;
• Ensuring the continuity of national spiritual and cultural traditions
and values in the eld of child protection, the continuation of
intergenerational incorporation;
Ensuring the integration and development of positive values, practices,
views, ideas, traditions, experiences, including legal norms, in the eld of
child protection, developed in the world and in line with the mentality of
the Uzbek people, ensuring the implementation of international law in
Uzbekistan.
One of the issues that most researchers object to is the question of the
denition of the concept of a child. It should be noted that in dening the
scientic denition of the concept of “child” in the territory of Uzbekistan,
the development of national-cultural areola, development of philosophical-
social and spiritual-enlightenment ideas and its main ideas, the system of
national values and national wisdom, the basics of education and upbringing
are of great importance.
According to Article 1 of the 1989 Convention on the Rights of the Child,
adopted by the United Nations (UN), a child is “every human being under
the age of 18” (Law of the Republic of Uzbekistan № ZRU-139, 2008).
If we look at modern legal sources and scientic-theoretical research, all
scholars have to one degree or another objected to the concept of the child,
concluding that the general denition of ‘child’ proposed by the UN fails to
mention all the specic aspects of the issue of the child and his or her rights,
the specic features of the concept of the child.
So, what are the aspects of this denition that are challenged by scientists
and researchers:
If the concept of a child includes all human beings from birth to 18
years of age, there is a huge physiological dierence between a newborn
and an 18-year-old human being, their age dierentiation and aspects of
their characteristics, how can they come to a denite unique solution to the
problem of psychological, anthropological, physiological identity? Wouldn’t
the psychology, behavior, knowledge, level, capabilities of a one-year-old
human being and an 18-year-old human being be dierent?
If we accept exactly the denition proposed by the UN, then how will
the issue of the interdependence of the rights of the child with his socio-
spiritual needs be addressed? Wouldn’t the set of socio-moral and other
types of rights of the newborn human being and the 18-year-old human
being be dierent? Consequently, the denition does not fully answer in
these places on the concept of the child.
871
CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 863-879
If the main task of the law is considered to be a system of eorts aimed
at the protection of the human being, then how to solve the problem of
protection of the various rights of the newborn and the 18-year-old human
being? Is there mutual equality and unity in the topics, places, issues of
protection?
If the rights of the child are to meet all the social needs of the child, then
is it not necessary to consider the fetus as a child and to provide for all his/
her needs in accordance with the law?
Naturally, the above denition of the UN raises such various objections,
but the answer to them becomes clear when we move from general
theoretical issues to minor ones.
In our opinion, the rst of the minor issues is that, despite the fact that
the concept of a child is in fact a single concept, from the birth of the child
to the age of 18 years, in connection with the dierent age characteristics,
the concept of the child is originally one, but essentially dierent, that is, it
is made up of step-by-step and sequential concepts that embody a certain
number of independent developmental stages, in fact the concept of a child
consists of their unity and integrity. If we emphasize them on the basis of
the Uzbek national tradition, the scheme is as follows:
Fetus ↔ Infancy ↔ Teenage ↔ Adolescence ↔ Becoming a socially
capable person.
If we look at the system of interrelated meanings that operate within
the semantic framework of the concept of “child”, we can see that there are
dierent areas in the process of understanding the concept of child. For
example, there is a variety of ideas and positions within the context of what
a child’s concept is:
Understanding the concept of a child ↔
For parents - the apple of the eye, a symbol of happiness, the successor
of the generation, the highest blessing, the grace of God, the meaning
of life and its sweetness, the source of joy, the subject of education and
upbringing, etc.;
For the pedagogue or teacher - the object and subject of education and
upbringing, the purpose of the educational process, the central object of the
pedagogical process;
For a psychologist - a person whose thinking and psyche are not fully
formed;
For the writer - the rst manifestation of the human concept, the object
of study, artistic interpretation and understanding;
872
Dilafruz Karimova, Nagima Baitenova, Mahfuza Alimova, Mohira Abdullaeva, Odiljon Ernazarov
y Laziza Alidjanova
The concept of “Child” and its historical and legal description
For the law - to be under the protection of the state due to his/her age,
physical and mental immaturity, and therefore a specially protected subject
of the law;
For the state - one of the main elements of great strategic importance,
ensuring the evolutionary development of the state, the succession of
generations, ensuring the general existence of the state, the basis for the
future of the state.
Consequently, there is also a diversity in the understanding and
interpretation of the concept of the child, depending on the interests and
goals of the parties who react to it.
Legally, the interests of the child, his personality and needs, that is, the
harmony and integrity of personality ↔ interests ↔ needs ↔ legal custom
↔ legal norms ↔ legal requirements and obligations ↔ legal security ↔
implementation of the law, ensures that the child has a place in society as a
subject of law. In this context, the legal aspect works in the interests of the
child from the point of view of his general, special and personal position.
If the general aspect of the law takes into account a set of features
arising from the point of view of the child’s age, maturity, psychological
and mental health, the spiritual-human and humanitarian aspects of the
concept of the child, in addition to the above-mentioned features, also
include psychological, physiological, anthropological, medical, sexual,
humanitarian aspects.
In all societies, it is clear that the concept of “child” is unique in terms
of the needs of the child. For example, if we list the social, family, personal
and other needs of a child, we can see that the following needs are necessary
for the child and his/her full development in society: health, welfare, food,
upbringing, education, exemption from certain obligations, the imposition
of certain obligations, the duty, especially the duty to the interests of
parents, society and the state, the existence of a system of duties and
responsibilities in general, the traditions of punishment, the adequacy of
punishment, the child’s special status and place in the family and society;
children’s rights and traditions of their observance, the existence of a
systemic infrastructure for child protection and their practicality, family
and ensuring the continuity of generations in society, and a number of
other such important issues play an important role in dening the social
signicance of the concept of ‘child’.
In our social environment, the harmony of national traditions,
secularism and religious thinking of the Uzbek people is reected in the
formation of thinking about the concept of the child. In the independent
state of Uzbekistan, the system of legal guarantees for the interests of the
child has been developed in close connection with the priority of human
interests, priority of law, priority of formation of civil society, priority of
873
CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 863-879
legal literacy, which are the priorities of the state in the context of building
a democratic state to implement reforms.
In our opinion, the following trends in the issue of the child and his
rights are relevant today, they are:
1. A system of rights that protects the child from the legal point of view
as an autonomous, i.e., independent legal entity (right of residence,
right of name, right to citizenship, right to family, right to education,
right to health and medical services, right of opinion, etc.).
2. The system of rights that ensures the socialization of the child (the
right to live in the family, the right to education, the right to culture
and tradition, the right to nationality, the right to own the language,
traditions, religion, the right to be a member of society).
3. The right of the child to exercise his or her potential outside the
family, i.e., the right to development (the right to join and participate
in various social organizations, the right to receive information and
use it to protect his or her interests, the right to use the opportunities
of various social institutions, etc.).
4. The right to make full use of the infrastructure available in society
for the full protection of the child (including protection from
various medical, environmental, ideological and extremist threats,
protection within and outside the family, protection of the child’s
interests, protection of the child from limitations of abilities and
talents, etc.).
Who do children understand not only experts in the eld, but the whole
society, especially the children themselves? Until what period do children
consider themselves “juveniles” or “children”? So we did a public opinion
poll to nd out what the kids thought[2]. According to the survey, only 37.7%
of respondents answered, “Who do you mean by a child” in accordance with
the law, ie “all persons under 18 years of age”. Almost the same number of
respondents (32.3%) said that “child” refers to a person under the age of 16.
3.8 percent of respondents said they understand all children under the age
of 17 as “children”, 21.7 percent understand all children under the age of 15,
and 4.5 percent nd it “dicult to answer”. This means that most children
do not consider themselves “children” after the age of 15, 16 or 17 (Figure 1).
874
Dilafruz Karimova, Nagima Baitenova, Mahfuza Alimova, Mohira Abdullaeva, Odiljon Ernazarov
y Laziza Alidjanova
The concept of “Child” and its historical and legal description
Figure 1. Response for the survey “Who do you mean by a child”?
Children are also asked when their “childhood” ends with a certain
process. We asked them, “By law, when a child is considered an adult”.
Fortunately, the vast majority of respondents (79.8%) did not choose to
answer distracting questions such as “after marriage”, “after getting a
passport”, “after graduating from high school”. 14.1 percent of respondents
believe that a child will grow up after obtaining a legal passport, 3.8 percent
will grow up after graduating from high school, and 2.3 percent could not
answer. Therefore, based on the results obtained, it is advisable to pay
special attention to this topic in law classes in educational institutions
(Figure 2).
Figure 2. Response to the survey, “When is a child considered an adult by law”?
If we look at the history of statehood and law in Central Asia Uzbekistan,
we will see that the legal views on the concept of “child” have long been
875
CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 863-879
formed. The oldest of the religious teachings available in Central Asia is
Zoroastrianism, which is one of the main sources in the study of the most
ancient period of the development of law. The oldest legal norms related to
Zoroastrianism are described in the book “Avesta” (Muminov et al., 2004).
Until Zoroastrianism became ocial, parts of the Avesta were distributed
among the peoples of Turan and Iran. These were compiled into a book
after Zoroaster’s death and called “Avesta - established, rmly established”.
Zoroastrianism is one of the oldest religions in the world and originated
in Central Asia in the II-I millennium BC. Until the spread of Islam in
Central Asia in the VIII century, Zoroastrianism was the main religion
of the indigenous peoples (Muminov et al., 2004). The Avesta contained
many important legal norms guaranteeing the rights and interests of the
child, as well as issues such as legal and moral relations between people,
family and marriage, crime and punishment. The fact that words such as
“child” is mentioned more than 80 times in this source indicates that it pays
special attention to children.
In the Avesta, childhood covers the period from his/her appearance in
the mother’s womb to the age of fteen. After the age of fteen, s/he was
required to wear a special belt, which signied adulthood, and to wear a
sudra dress (Mahkam, 2001). Those who have reached the age of 15 are
taught the laws of Zoroaster, moral and virtuous thought, virtuous words,
and virtuous deeds (Toychieva, 2010).
It is considered one of the sources of medieval law in Central Asia, and in
Islamic teachings, many scholars have argued that “childhood includes the
period between 14 and 15 years of age” by including the fetus in childhood
(Legislative History of the Convention on the Rights of the Child, 1995).
In particular, according to Sheikh Muhammad Yusuf, childhood
consists of the following four stages: The rst stage is the fetal period in
the womb of the mother. There are two focus on it during this period. One
is that s/he is a piece of her/his mother and walks with her and stays with
her. The second consideration is that s/he has a private and individual life
and will soon be separated from his/her mother and become a separate
person. The second stage is the childhood stage, which starts at birth and
lasts until the age when ability to distinguish things appears. In order to
enforce the rulings, the scribes dened the age of seven as “tamiz” – “the
age of distinguishing between good and evil”. The third stage is called
the “imperfect performance”. That is, there is the potential to fulll the
Sharia ruling, but it is incomplete. The fourth stage is called the “perfect
performance”. That is, if the natural signs of puberty do not appear, and it
is later than usual, it will reach puberty at the age of 15 years (Muhammad
Yusuf, 2011).
876
Dilafruz Karimova, Nagima Baitenova, Mahfuza Alimova, Mohira Abdullaeva, Odiljon Ernazarov
y Laziza Alidjanova
The concept of “Child” and its historical and legal description
Also, in the thirteenth century, in Jami ahkam as-sigor (The
Compendium of Sharia Judgments on Minors) Muhammad ibn Mahmud
al-Ustrushani stated that the minimum age for puberty of girls was 9 years,
and the maximum age was 17 years, for boys, the minimum age was 12 years
and the maximum age was 19 years. The play shows three types of puberty:
a) the child reaches a certain age;
b) the child develops signs of puberty;
c) the child’s own confession of adulthood.
Paragraph 398 of the work states: “Adolescence is determined
sometimes by age, sometimes by signs. The puberty sign is menstruation
and pregnancy for girls, the minimum age is 9 years. The puberty sign is
to conceive a child for boys, the minimum age is 12 years. As for the age
(marking puberty): the boy will be 19 years old and the girl will be 17 years
old (Muhammad ibn Mahmud al-Ustrushani, 2010).
Also in the system of views on the child and adulthood is the “Confession/
(Iqror)
1
” part of the work “Fatwa al-Attobi” (Muhammad ibn Mahmud
al-Ustrushani, 2010); The fatwas of Abu Hanifa and the thoughts of
Muhammad ibn Muqatil; Views of A. Aitov, a Russian scholar who studied
legal customs in Central Asia (report of lieutenant Aitov “on the Kyrgyz
customs that have the force of law in the steppe”, 1846); A.B. Sarsenbaev’s
concept of “rushd” in Islamic law related to the state of emancipation and
the ability to behave (Sarsenbaev, 2011); O.K. Kayumov’s expansion of
social and spiritual boundaries of youth; V. Karimova’s phrase “juvenile” is
based not on the biological age of a person, but on his psychological state;
Ganibaeva’s denition of the Convention’s status as a child is “somewhat
ambiguous” (Ganibaeva, 2009: 160).
Pavlovsky’s coverage of adolescence and puberty covers his period from
15 to 30 years (Pavlovsky, 2001); N.I. Grodekov’s custom in Turkic peoples
is that a child should reach the full age of 15 years; from a medical point of
view, the physiological maturity of the child is taken into account and he is
called a “puberty” age (Dobrenkov and Kravchenko, 2005); psychologists’
“adolescence” covers the period from 10-11 years to 14-15 years (Karimova,
2013); Opinions of Abdurrahman, the elder of the mahalla “Avliyo ota”/
Saint father” and others on the subject of “Sharia articles on legal relations”
during the colonial period of Tsarist Russia; A study of the civil legislation
of the former Soviet Union and the Allied republics (Fundamentals of
civil legislation of the USSR and the Union Republics, 1961) and etc. are
noteworthy (Karimova, 2012; 2014; Baksheev et al., 2022).
Another controversial issue in the context of the issue under
consideration is when a fetus is considered a human being. Jami ahkam
as-sigor states that a child is considered a child both before and after birth.
877
CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 863-879
In the process of drafting the International Convention on the Rights of
the Child, dierent countries have put forward dierent concepts about
when a child’s life begins. Countries such as Italy, the Vatican, Argentina,
Guatemala, Malta, and Senegal have argued that the rights and interests of
the child should be guaranteed from the time of conception.
Countries such as France, the United Kingdom, China, Poland,
Indonesia, and Tunisia believe that the articles of the Convention apply
only to children born (Le Blanc, 1995). As a result, the general denition
of “child” in the Convention does not emphasize the question of when
childhood begins. However, the preamble to this Convention states that “a
child... needs adequate legal protection both before and after birth”.
Scientists such as Ganibaeva (2009), Nikonov (2010), Besedkina (2005)
noted that the fetus is not a part of the mother’s body, but the beginning
of a new human life. Scholars such as T.V. Lobanova (2006), Malgorzata
(2002), Sologub (2012) say that a child can be legally protected only after
birth.
Footnotes
1Note 1: Jomi al-Javomi, written by Abu Nasr Ahmad ibn Muhammad
al-Attabi al-Bukhari, consists of four volumes and is known as al-Fatwa al-
Attobi.
Conclusion
In our opinion, based on our historical characteristics and the interests
of the fetus, it is expedient to dene childhood in our country in the period
from the fetal period to 18 years. Therefore, we propose to change legal
denition of the concept of “child” in Article 3 of the Law of the Republic
of Uzbekistan “On guarantees of the rights of the child” to “A child is a
human being from a fetus to 18 years of age” and to introduce the concept
of “Fetus - a child developing in the womb from the twelfth week to the
time of birth”.
Thus, there is a dierence of opinion among researchers in dening the
legal status of the concept of child and in the development of the denition
of the child, which is due, on the one hand, to the complexity of the specics
of the concept of child and, on the other hand, the multi-layered meanings.
878
Dilafruz Karimova, Nagima Baitenova, Mahfuza Alimova, Mohira Abdullaeva, Odiljon Ernazarov
y Laziza Alidjanova
The concept of “Child” and its historical and legal description
Bibliographic References
BAKSHEEV, Andrey Ivanovich; SEVERYANOV, Mikhail Dmitrievich;
VORONTSOV, Vladislav Nikolaevich; GAIDIN, Sergei Tihonovich;
ROGACHEV, Alexander Georgievich; SAFRONOV, Sergey Alekseevich.
2022. “USSR policy of 1920 in relation to people forced to emigrate to
Asian countries after the end of the civil war of 1917-1922” In: Cuestiones
Políticas. Vol. 40, No. 72, pp. 799-812.
BESEDKINA, Natalia. 2005. Constitutional and legal protection of the rights of
the unborn child in the Russian Federation: dissertation ... candidate of
legal sciences. Moscow, Russia.
DOBRENKOV, Vladimir; KRAVCHENKO, Albert. 2005. Fundamental
sociology: Ages of human life, In 9 volumes: vol. 9. INFRA-M. Moscow,
Russia.
FUNDAMENTALS OF CIVIL LEGISLATION OF THE USSR AND THE UNION
REPUBLICS. 1961. Bulletin of the Supreme Soviet of the USSR, 50, 525.
GANIBAEVA, Shaxnoza. 2009. International legal issues of implementation of
the Convention on the Rights of the Child in the Republic of Uzbekistan
(problems of theory and practice): Dissertation in law. Tashkent State
University of Law. Tashkent, Uzbekistan.
KARIMOVA, Dilafruz. 2012. Formation of children’s rights in Central Asia.
Tashkent Islamic University. Tashkent, Uzbekistan.
KARIMOVA, Dilafruz. 2014. Genesis and evolution of children’s rights in
Uzbekistan: Monograph. Tashkent Islamic University. Tashkent,
Uzbekistan.
KARIMOVA, Vasila. 2013. Deviant behavior. Marifat.
KOKINA, Maria Nikolaevna. 2022. “Approaches to the denition of
constitutional traditions: Aproximaciones a la denición de tradiciones
constitucionales” In: Cuestiones Políticas. Vol. 40, No. 72, pp. 704-715.
LAW OF THE REPUBLIC OF UZBEKISTAN № ZRU-139. 2008. On guarantees
of the rights of the child. Tashkent. Available online. In: https://lex.uz/
acts/1297318. Consultation date: 14/02/2022.
LE BLANC, Lawrence. 1995. The Convention on the Rights of the Child: United
Nations Lawmaking on Human Rights. University of Nebraska Press.
Lincoln, USA.
879
CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 863-879
LEGISLATIVE HISTORY OF THE CONVENTION ON THE RIGHTS OF THE
CHILD. 1995. United National Center for Human Rights, Human Rights.
Sweden:
LOBANOVA, Tatiana. 2006. The legal status of the child in Russia and Great
Britain (England): theoretical and legal analysis: Abstract dissertation ...
Candidate of Legal Sciences. Volgograd.
MAHKAM, Askar. 2001. Avesta: Historical and literary monument. Sharq.
Tashkent, Uzbekistan.
MALGORZATA, Shiyko-Okruh. 2002. International legal issues of protection of
the rights of the child: Abstract dissertation ... candidate of legal sciences.
Moscow, Russia.
MUHAMMAD IBN MAHMUD AL-USTRUSHANI, Husayn Abu-l-Fath. 2010.
Jami ahkam as-sigor. TIU. Tashkent, Uzbekistan.
MUHAMMAD YUSUF, Muhammad Sadiq. 2011. Usulul qh. Sharq. Tashkent,
Uzbekistan.
MUMINOV, Ashirbek; YULDOSHKHODJAEV, Haydarxon; RAHIMJONOV,
Durbek; KOMILOV, Muzaar; ABDUSATTOROV, Abdusamat;
ORIPOV, Abduhakim. 2004. Religious Studies. Mehnat. Tashkent,
Uzbekistan.
NIKONOV, Katarzyna. 2010. Modern theoretical aspects of international legal
protection of the rights of the child: abstract dissertation ... candidate of
legal sciences. Moscow, Russia.
PAVLOVSKY, Valery. 2001. Juventology: An Integrative Youth Science Project.
Academic project. Moscow, Russia.
REPORT OF LIEUTENANT AITOV “ON THE KYRGYZ CUSTOMS THAT
HAVE THE FORCE OF LAW IN THE STEPPE”. 1846. Materials on the
customary law of the Kazakhs: Collection 1. Alma-Ata. Kazakhstan.
SARSENBAEV, Azad. 2011. Property issues in Islamic law. Transoxiana.
Tashkent, Uzbekistan.
SOLOGUB, Albina. 2012. The concept of “child” in Russian law, In: XVI
International scientic and practical conference “Issues of modern
jurisprudence”. Novosibirsk, Russia.
TOYCHIEVA, Hamida. 2010. Individual legal awareness and legal education.
Muharrir. Tashkent, Uzbekistan.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en octubre de 2022, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.40 Nº 74