Abstract
The aim of this column is to illuminate a divergence which apparently exists amongst scholars in the burgeoning field of human rights education (HRE) concerning the value of law in educating about, through and for human rights. To this end, the column critically reviews a wide spectrum of views in the scholarly literature on HRE between those who are either supportive of the need to include law and legal knowledge law in HRE, agnostic about its benefits, or squarely against it on the basis of a perceived Western bias. It concludes with a call for greater cross-disciplinary engagement and deeper reflection by legal scholars in particular on the contribution that they could potentially make to the emerging debate about the value of law in the scholarly field of HRE.
INTRODUCTION
As is well-known, there has been a sharp divide in recent years in human rights discourse on the value of the international human rights framework and the movement on which it is based. This includes intellectual critiques which perceive human rights and international human rights law in particular as something of a ‘wasting asset’, irrelevant and out of touch with the concerns of the Global South. 1 Counter-arguments highlight the enduring and dynamic power of the international human rights framework in countering the contemporary challenges of authoritarianism and populism and in generating positive social change. 2 This latter debate, however, has revolved almost exclusively around the role of international human rights law in effective campaigning and advocacy on human rights, with very little attention (if at all) being paid to the role of human rights law in the crucial enterprise of educating about rights, especially in schools where the first seeds of human rights awareness are ripe to be planted. The aim of this column is to illuminate a similar dynamic, which I believe also exists in the burgeoning field of human rights education (HRE) between those who are either supportive of the role of law in HRE, agnostic about its benefits, or squarely against it on the basis of a perceived Western bias. It ends with a call for greater cross-disciplinary engagement and contribution by legal scholars in particular to the emerging debate about the value of law in educating about, through, and for human rights.
CONTEXT SETTTING: HRE'S ‘CURRICULUM PROBLEM’ 3
The field of HRE is of relatively recent vintage dovetailing as it does with a range of global developments. These include the end of the Cold War, the rise of globalisation, the expansion of mass education, and the consolidation of the human rights movement more broadly.
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While the requirement for education about rights found expression in several of the core UN human rights instruments
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and was the focus of important UN initiatives,
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the first international instrument devoted exclusively to HRE – the UN Declaration on Human Rights Education and Training (UNDHRET) – only emerged as recently as 2011.
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Article 2(2) of UNDRHET provides for the first global definition of the concept of HRE as encompassing three essential elements: (a) Education about human rights, which includes providing knowledge and understanding of human rights norms and principles, the values that underpin them and the mechanisms for their protection; (b) Education through human rights, which includes learning and teaching in a way that respects the rights of both educators and learners; (c) Education for human rights, which includes empowering persons to enjoy and exercise their rights and to respect and uphold the rights of others.
UNPACKING THE SCHOLARLY DIVIDE
This reflection on attitudes to law in HRE owes much to a recent article by Lundy and Sainz whose work serves as a useful starting point for the exercise as it presents the first robust normative argument to the effect that law and legal knowledge is indeed of vital importance in HRE. 11 Focusing on the realm of children's rights in particular, they point out that while children routinely face rights violations in schools, discourse on children's rights is typically ‘… a rosy one, focused on positive images of protecting children from harm’ rather than highlighting the dark side of violations and contentious aspects of interpretation. 12 Noting how this upbeat perspective on children's rights is largely replicated in models of HRE rolled out in schooling, 13 they claim that such a one-sided view leaves children poorly equipped to identify breaches of their rights and to take action to defend them. On this basis, they make a compelling argument that law and legal knowledge is essential in schooling to enhance children's knowledge about rights violations, how to act on them as well as in bridging gaps between human rights ideals and reality on the ground. In emphasizing the necessity of legal literacy for children, Lundy and Sainz contend that despite its critical importance, legal literacy is often “disregarded” in HRE, with few scholars acknowledging its centrality as a vital element of transformative HRE. 14
A deep dive into HRE literature certainly confirms this impression of law as something of an outlier in the field. It finds that foundational scholarship has mostly elided questions about the appropriate knowledge base for HRE, focusing instead on the question of how students should learn, with particular emphasis placed on the importance of active learning and constructivist pedagogical methodologies especially where transformative learning is the aim.
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Bajaj has captured perfectly the perception conveyed in the literature that the further away the child can be drawn from the dreariness of the text through creative strategies including art, drama and filmmaking, the better: From universal standards on documents discussed in New York and Geneva to the everyday life of educators and students in remote parts of the globe, creative strategies to localize human rights education are essential to its ability to be viable and relevant.
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The extent to which law does find a voice in the field primarily relates to analyses of the legal right to HRE rather than its utility as a vital tool in HRE. 18 While Tibbitts has acknowledged that learning about the law and how to use it can be a form of empowerment methodology, she associates this more typically with her accountability model of HRE directed at professional learners rather than her values and awareness/socialization or activism/transformative models. 19 Flowers has actively rejected the incorporation of substantive human rights law into the process of HRE arguing that a ‘strictly legal approach devalues the real-life stories and struggles of ordinary people and does not help them to frame personal experience in human rights terms. Instead, it cultivates a small elite of experts and disempowers potential activists’. 20
It is important to note that Osler and Starkey (two foundational scholars in the field) do recognise the role of law in struggles for justice and human rights. 21 In their earliest publication together in 1996, they specifically highlighted the importance of developing a legal perspective in the professional development of teachers. 22 Their 2010 publication on teachers and HRE also incorporates a chapter on the fundamentals of the human rights framework. 23 However, apart from the first specific appeal made by Lundy and Sainz and later by Watkins for the development of legal literacy in children, one has to go far back in time to the earliest literature on HRE to find any emphasis on the importance of this in HRE and concrete and practical suggestions as to how it might be done. Even then, it is perhaps significant that such suggestions arose in the context of expert advice to the Council of Europe (CoE) on the taking forward of recommendations regarding HRE in Europe. Thus, in a CoE report written in 1984, Lister recommended that the case law of the European Court of Human Rights should form part of the content and methods of HRE in secondary schools on the basis that ‘students should know the kinds of cases which people try to bring before the Human Rights Court’. 24 Acknowledging that human rights documents ‘are often dry and dusty and not the bread of life in classroom’, he advocated a range of constructivist pedagogies such as problem-solving activities, socio-drama and roleplay, including the idea of a moot court in the classroom as well as more conventional methods in the enterprise of HRE. 25
The importance of legal knowledge of human rights was also advocated by Audigier and Lagalée in their report for the CoE of a teachers’ seminar on civic education in 1992 in which the teaching of human rights formed a significant part. 26 Noting the existence of a paradox involving, on the one hand, a ‘dynamic vision of civic education shared by most participants and, on the other hand, the equally widely felt reluctance to choose law as an important part of the syllabus’, they maintained: ‘But conflict, democratic debate and participation in the life of the school rely on an opening up to law and human rights in their legal significance and application both to inform debate and facilitate decision-making’. 27 Interestingly, having included a specific workshop on using the European Convention on Human Rights in the classroom, which specifically involved an exercise related to an actual case heard by the European Court of Human Rights, they reported that some participants had changed their minds by the end of the seminar about ‘…law and some knowledge of law becoming necessary means of exercising citizenship’. 28 With the exception of these very early examples, however, the literature confirms the concern that the potential of law as a pedagogical tool has been substantially overlooked in the development of scholarly input into the practical challenge of educating ‘about’ and ‘for’ human rights.
This overall disposition of indifference or neglect noted by Lundy and Sainz on the importance of law in HRE, however, is not the only position that can be detected on the subject in the literature. Closer examination reveals that a recent seam of that literature – styling itself as ‘critical human rights education’ (CHRE) 29 – takes an altogether more hostile view of the role of the international human rights framework and legal knowledge generally in HRE. Keet, for example, has mounted a long-standing critique of scholarship and praxes of HRE which take as their starting point the international human rights framework. 30 He has consistently maintained that the field is ‘conceptually imprisoned’ as evidenced by its failure to engage in critique of its own rapid development as a pedagogical form in the wake of the UN Decade of HRE; and because of its failure to engage critically with the discourse of ‘human rights’ generally. 31 Adopting a Foucauldian lens, he has advocated the need for a ‘human-rights-as discourse’ approach to HRE which will enable it to deliver more than it is currently promising from a pedagogical point of view by engaging with the range of intellectual critiques that have snowballed in recent years as regards the discourse of human rights (mentioned above in the introduction to this column). Indeed, in Keet's view, the global mistrust of human rights that is reflected in such work is effectively bolstered by an uncritical HRE which has effectively ‘opted to become the uncritical legitimating arm of human rights universals’. 32 Only by engaging in critique will HRE be able to advance its own transformative potential since a critical approach, by its very nature, contributes to reconstruction and regeneration. 33
Amongst the range of critiques which Keet points to as ultimately enriching the very concept of human rights by deconstructing it are critiques which specifically target the role of law within the discourse of human rights. These include, for example, references to Costas Douzinas’ view of the limiting effect caused by the ‘conceptual slide’ of human rights into legal rights which has resulted in the former forfeiting ‘the critical distance necessary for dissent, resistance, and rebellion against the domination of power, the oppression of wealth, and the injustice of law’. 34 Simone Weil's perspective on the language of the ‘rights of man’ (enshrined in the 1789 Declaration of the Rights of Man and the Citizen) as being evocative of legal claims which ‘effectively ensured its inefficacy in advance’ is also cited as a pungent critique of the role of law in the contemporary human rights movement. 35 Likewise, Evans’ articulation of ‘the shortcomings of a fixation with international human rights law’ 36 and Lawrence Hamilton's linkage of natural law theory with modern human rights discourse as providing ‘an overarching ideological framework and moral code for guiding the exploitation of territories and peoples’. 37 While Keet has been careful not to evaluate these critiques on their merits, it is not hard to discern in his own scholarship a consistently sceptical view of the role that international human rights law has played in dominant iterations of HRE in practice. Noting that the legal discourse on human rights has been ‘widely documented’, Keet argues that it is at present ‘the most dominant influence on the framing of HRE’ and that in this respect, HRE is ‘merely a disseminating channel for popularising these international instruments’. 38 His scepticism is made more explicit in his core argument that the failure to engage in human rights critiques has resulted in a ‘declarationist’ approach to HRE that has deprived the field of its political and pedagogical value. 39 In other words, in dominant constructions of HRE, ‘knowing about the law’ with its regulatory and compliance-inducing imperatives, in his view, has ‘transcended all other considerations’. 40
Coysh has made a similar claim as regards the distorting effects which the global discourse of HRE has had on scholarship and the implementation of HRE in practice. 41 Drawing also on Foucauldian critical discourse analysis, she identifies a decisive shift in UN documentation relating to HRE from the outset of the UN Decade for HRE from an orientation which previously had linked the aims of HRE to tackling issues of power and corruption to one which is resolutely focused on the socialisation of a particular conception of human rights into societies and communities in order to better serve powerful state interests. In her view, this orientation is visible in the emphasis given to international human rights norms and standards in this global human rights discourse, which, she argues, has served to subjugate other types of knowledge (cultural, indigenous, community) and approaches to HRE. The result, according to Coysh, is a preponderance of processes and approaches to HRE which (at least in the context of community-based settings, which are her focus) tend to prioritise participation and knowledge transfer over the emphasis on critical pedagogy and reflexivity advocated by the minority of critical scholars.
Keet and Coysh are by no means the only scholars to have lamented the influence of law as a dominant force in educating about rights. Focusing on children's rights education (CRE) in particular, Jerome and Starkey claim that a significant, and in their perception, limiting worldview in operation vis-à-vis CRE is one that they characterise as legalistic insofar as it ‘sees CRE as largely a technical issue of interpretation and implementation’. 42 However, a distinguishing feature of this critique – particularly that of Keet and Coysh – is the degree to which they specifically implicate law and the international legal framework as the root of all the problems they identify with the current discourse of HRE and its implementation in practice. An obsession with law in the scholarship of HRE, they argue, has served to bolster and perpetuate primarily Western conceptions of human rights, as well as to reinforce and discourage critique of the hegemonic power structures that concocted the body of law in the first place. This uncritical stance has effectively served to disempower learners, in their view, leading Keet to question ultimately whether HRE really ‘exists’ in such circumstances. 43
APPRAISAL
The preceding analysis has shown how a wide range of views can be detected in HRE literature on the value of law in HRE which mirrors debates in the broader human rights field. It demonstrates how a straightforward assumption that law deserves a place at the table in developing the HRE episteme advocated by Parker cannot be taken for granted. Such views range along a spectrum from those (like Lundy and Sainz) who actively encourage law and legal literacy in HRE, to those who seem largely unconcerned, to those (like Keet and Coysh) who appear to actively disparage it. As thought-provoking as these latter critiques may be, their persuasiveness is, in my view, undermined on a number of grounds. First, as the analysis of foundational scholarship in the field has revealed, the relevance of law in the dynamic of HRE has, if anything, been underplayed in traditional scholarship on the subject. Second, both Keet and Coysh place huge emphasis on what they perceive to be the malign influence of international norms and standards without apparently considering the open-textured nature of much of international human rights law, the rich and varied way in which it has been interpreted by international human rights bodies 44 or the reality and value of critical legal scholarship in evaluating such interpretations. Rather, law appears to be conceptualised as a fixed and static entity, incapable of dynamic evolution or application. In my view, this represents an impoverished view of human rights law the boundaries of which are often impossible to draw given that its interpretation (like all bodies of law) depends on processes of interpretation and ultimately of judgment taking a multiplicity of contexts and factors into account. 45 Third, the critique of law in HRE as a dubious tool of empowerment (serving instead to subjugate local understandings) begs some obvious questions: does this critique not improperly assume that learners are incapable of distinguishing between a local and global ‘language’ of rights? And would the avoidance of education about international human rights law in an instrumental sense not risk disempowering learners from mobilising for their rights, by accessing networks and mechanisms which could potentially address their rights, and by contributing valuable insights into how such norms should be defined? Fourth, apart from a single case study which Coysh provides of HRE practice in community settings in Tanzania which confirms her view, the evidence base for claims regarding the distorting effects of law in the practice of HRE is manifestly lacking. This deficit is particularly concerning with respect to the assorted claims that HRE based on the global human rights framework has disempowering effects, is ‘impossible’, 46 anti-educational, and even anti-human rights. 47
Much more than space allows here could be said to elaborate the above ripostes and to draw out, as I have tried to do elsewhere, how law can be convincingly cast as ‘powerful knowledge’ in HRE, 48 the absence of which needs to be understood and tackled in teaching and learning on the ground. 49 As highlighted at the outset of this short contribution, the intention here was to illuminate for legal scholars the extent to which the value of law in educating about human rights is a contested space; and how the field indeed cries out 50 for deeper engagement by legal scholars in the type of cross-disciplinary conversations required to develop ideas on the appropriate content of HRE going forward.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.