Understanding the Universal Right to Education as Jurisgenerative Politics and Democratic Iterations

Transcription

1 European Educational Research Journal Volume 8 Number Understanding the Universal Right to Education as Jurisgenerative Politics and Democratic Iterations NINNI WAHLSTRÖM School of Humanities, Education and Social Sciences, Örebro University, Sweden ABSTRACT This article examines how the universal human right to education can be understood in terms of what Seyla Benhabib considers democratic iterations. Further, by referring to the concept of jurisgenerative politics, Benhabib argues that a democratic people reinterpret guiding norms and principles which they find themselves bound to, through iterative acts, so that they are not only the subjects but also the authors of laws. By examining the use of the Article of the universal right to education in the European Convention on Human Rights, not as an Article with an unambiguous meaning, but as an Article which from its very start was the subject of different interpretations and desires, the author argues for an understanding of the process of transforming universal rights into national law and norms as democratic iterations. This way of conceiving democratic iterations is examined empirically, with Sweden as an example, by analyses of three different discursive arenas: a political/legal arena; an arena concerning political contests over independent schools; and a more limited arena for advocating denominational schools. The conclusion is that two different disjunctions between universal norms and national self-determination and between law as power and law as meaning are productive interspaces for renegotiating and rearticulating universal law into local/national norms. This article [1] explores in what ways the concepts of jurisgenerative politics and democratic iterations might contribute to a deeper understanding of how to handle the paradox of universal rights in relation to a democratic people s autonomy. Seyla Benhabib (2007, p. 449) distinguishes between the twofold normative limitations: respect for human rights principles and an open and fair process of democratic iterations which mediates between the interests of those affected and the democratic citizens. Democratic iterations are not only a normative but also an empirical concept. They are empirical because they also aim to analyse how real processes within and across state boundaries can create, or fail to create, justification through deliberations. In this article, democratic iterations are utilized to analyse different arenas and topics which can be distinguished within the theme of the universal right to education. Hence, the purpose is not to judge the democratic conditions as such, but rather to illustrate some of the arenas where these democratic iterations take place, and also to exemplify some different directions of these public conversations. By examining the use of the Article on the universal right to education in the European Convention on Human Rights (Council of Europe, 1952) [2], not as an Article with an unambiguous meaning, but as an Article which from its very start was the subject of different interpretations and desires, I will argue for an understanding of the process of transforming universal rights into national law and norms as democratic iterations and jurisgenerative politics. Thus, the aim of this article is to explore the process of establishing the Article on the right to education in the European Convention on Human Rights, Protocol 1, within the domestic policy 520

2 Understanding the Universal Right to Education arenas in Sweden in terms of jurisgenerative politics and democratic iterations. This might seem a specific case, with insignificant interest outside Sweden. But my claim is that in our time, in Europe and elsewhere, when supranational agreements are more frequent than ever, it is important to reach deeper understandings of the transformation of supranational agreements into national interpretations and national law and rules. Sweden will serve as an example; the process of iterations might be equally relevant for other nations as well. The article comprises two parts: the first part consists of a deeper conceptual discussion of the terms jurisgenerative/jurispathic politics and democratic iterations. In the second part of the article, three different arenas for democratic iterations, on the theme of the right to education in Sweden, are distinguished and analysed. Introduction: a view of rights as historically and socially situated Norberto Bobbio (2000) states that human rights, democracy and peace constitute three cornerstones which presuppose each other in our current historical phase. Without acknowledged and warranted human rights, we cannot talk about democracy; without democracy, there are no fundamental conditions to solve problems in a peaceful way. But it is still important to remember, as Bobbio points out, that human rights, however fundamental, are the results of agreements between states in a specific historical and social situation. Hence, human rights cannot be regarded as having their bases outside or above their historical context. Instead, Bobbio argues, human rights shall be viewed as results from the contests against totalitarian states during modern times. The universal human rights are not established at a certain moment, once and for all; instead they have been developed step by step as the development of society has continually raised new questions of what should be included in the concept of human rights. The right to education, which is the theme of this article, belongs to the social rights, or the so-called second generation of rights, from the twentieth century (Marshall, 1950/1992). According to Bobbio (2000), there is a big difference between different forms of human rights, although we use the same concept for all of them. There is an ongoing debate whether and if so, in what way these differences ought to be made clear. Even if we use the same term for all the different rights, that is human rights, Bobbio (2000) stresses that a dividing line can be drawn between proclaimed rights on the one hand and rights based in juridical principles and included in a judicial system with power to institute legal proceedings with application to human rights on the other. Most of the social rights are so-called proclaimed rights, which is the reason, according to Bobbio, why so many people are without rights, in spite of the fact of this era of the age of rights in which we live. However, in this article, it is a right based on judicial grounds which is at focus, namely the right to education, formulated and interpreted within the framework of the European Convention on Human Rights. The Tension between Universal Rights and Democratic Nations Self-Determination and Self-Understanding Religious freedom and the right not to be indoctrinated by a totalitarian state play an important role in the preparatory deliberations on the right to education within the European Convention on Human Rights in the Council of Europe from 1949 to 1952 (Wahlström, 2009). You might say that the individual s rights as civil rights, including the parent s right to decide on the kind of education for the child, are predominant during the preparatory discussions. On the other hand, in some important law cases later on in the twentieth century, the European Court of Human Rights tends to rather emphasize the child s right to free education that is to say, a displacement towards the right of education as a social right even if the right to establish private schools is acknowledged as well. Hence, there are, from the very start, tensions between parents rights and children s rights, between civil rights and social rights, within the universal right of education in international convention texts (cf. Englund et al, 2009). Classical liberalism defends above all the individual s right to shape his/her life in accordance with his/her own convictions, on condition that such a right will not restrict other people s rights and privileges, and also defends individuals equality before the law. As the development of society 521

3 Ninni Wahlström has led to ever-increasing networks of institutional systems within nations and, correspondingly, between nations in the international arena, the base in the concept of freedom has been conceived as too one-sided and inadequate. As Marshall (1950/1992) argues, civil rights call for political as well as social rights to be able to be put into practice in a reasonable and fair way. Habermas (2007) claims that the tension between the ideas of equal citizenship rights and the idea of individual rights best can be balanced in a democratic society, as to be democratic includes a debate concerning the perspective and interests of the Other. When considering the interests of different groups and individuals in the democratic discussion, human rights are acknowledged and interpreted in a reciprocal process. In the same way, referring to Habermas, a nation s voluntary adherence to conventions on human rights is a part of such democratic processes. A nation s citizens may, for example, express their will to human solidarity by coming to an agreement with other states concerning a joint application to national laws which respect human rights. Hence, supranational agreements are not about a one-sided adaptation of universal rights but about a nation s deliberate action interwoven in a larger web of intranational and international actions of solidarity. Seyla Benhabib (2004a, p. 18) puts the question of how we can link the constitutional state with universal human rights. Following Habermas, Benhabib acknowledges that universal human rights and popular sovereignty, or the norms of private and public autonomy, constitute two necessary foundations for democratic states. While universal human rights seem to transcend contexts, democratic popular sovereignty is intended for a more defined self-governance of a nation. However, the contradictions that seem inherent in the foundation of private and public autonomy may, at the same time, balance and limit each other through continuous negotiations and articulations. Benhabib (2004a, p. 167) maintains that rights could be viewed as the enabling preconditions of the exercise of communicative freedom, that is, of one s capacity to assent or to dissent from normative regulations through reasons. Further, Benhabib (2004a, p. 168) argues that those who are the subject of rights commonly are assumed to have some sort of fixed identities, but instead, through the exercise of rights and political actions, these identities could be changed and hence be viewed as contingent. The potential tensions between the universal and the local can be balanced and defined through continuous formulations and negotiations in a public conversation and debate. The right to freedom, as a communicative freedom, involves a right to make your voice heard within a political community. Since a law itself is viewed as a result of common deliberations and decisions, rather than as an anonymous objective regulation, it will continuously be open to interpretations and adaptations. According to Benhabib (2004a, p. 18), this is an attitude that is consistent with both national and international legislation. Democratic Iterations and Jurisgenerative Politics as Political-Philosophical Concepts Benhabib develops the concept of democratic iterations in order to illustrate how supranational agreements can be in accordance with the free will of a democratic public: Democratic iterations are complex processes of public argument, deliberation, and learning through which universalist right claims are contested and contextualized, invoked and revoked, throughout legal and political institutions as well as in the public sphere of liberal democracies. (Benhabib, 2004a, p. 19) The concept of iterations itself is borrowed from Derrida. In Limited Inc, Derrida (1988) discusses how, or if, a text can be understood in a right or intended way. Derrida states that a text is written signs proffered in the absence of the receiver. To retain its function as writing, the text must remain readable despite the absence of any receiver. It must also remain readable despite the disappearance of the author: For a writing to be a writing it must continue to act and to be readable even when what is called the author of the writing no longer answers for what he has written, for what he seems to have signed. (Derrida, 1988, p. 8) So, who is to decide the intention of the text? Derrida goes beyond the question of the intention of the writing in regarding a written sign as giving rise to iteration in the absence of the subject who 522

4 Understanding the Universal Right to Education has produced it. For a communication to be readable, it must be repeatable iterable. Through deriving iter ( again ) from itara ( other ) in Sanskrit, Derrida (1988, p. 7) ties repetition to alterity. Derrida (1988, p. 8) perceives the writing of a text as to produce a mark that will constitute a sort of machine which is productive in turn, meaning that there always is a rupture between the writing and the intention of the writing. But even if the moment of coming into being of the text is lost, the signs and marks of the text are still there, possible to read and interpret. According to Means (2007, p. 407), for Benhabib, who conceives the concept of democracy as an expression of deliberative democracy, Derrida s term iteration offers a way to show that the resignification of original meanings can be guided in the direction of deliberative democracy also in legal, political and cultural spheres. The idea of democratic iterations seems to provide a more explanatory and normative trace than the deliberative model of political liberalism. Every iteration transforms meaning, adds to it, enriches it in ever-so-subtle ways (Benhabib, 2006, p. 47). Benhabib s normative model of democratic iteration insists that the most basic universal rights claim the right to have rights or the right to democratic citizenship is itself determined by ongoing processes of political reflexivity. (Means, 2007, p. 407) Benhabib (2004a, p. 20) argues that the context of a world society of states is at the same time a place for negotiations and democratic iterations. Renegotiations and reiterations of the dual commitments to human rights and sovereign self-determination are part of an ongoing process of self-reflection and of defining the identity of a democratic people (Benhabib, 2004a, p. 47). Hence, sovereignty is viewed as a relational concept (Benhabib, 2004a, p. 21). Considering that democratic iterations are continuously ongoing within different national contexts, the meaning of universal human rights will gradually be displaced in different directions and partly be understood in new ways compared to earlier authoritative constructions. At the same time, democratic interpretations function as engaging in jurisgenerative politics. The concept of jurisgenerative politics refers to a democratic people showing itself not only as the subject of the law but also as the author of its laws (Benhabib, 2004a, pp ). So, the people are not left to an uncritical adjustment to certain authoritative interpretations of the law. Instead, Benhabib (2004a, p. 20) suggests that with the concept of jurisgenerative politics, it is possible to understand the democratic people as author and interpreter of its laws, even if the laws are generated from international agreements and claims. Benhabib observes two different, but important, disjunctions in relation to jurisgenerative processes. The first disjunction is between universalism, as anchored in human rights, and democratic sovereignty, as circumscribed self-governance (Benhabib, 2004a). The thought of a creative space in between implies that commitments to context-transcending international norms can be mediated with the will of democratic majorities, because these norms can be renegotiated, rearticulated or even rejected. The second disjunction is between law as power and law as meaning. It is this inner tension in the concept of law that creates a productive space for a democratic people which considers it bound by certain guiding norms and principles to engage in discussions, thereby partly displacing and altering the meaning of the law through reinterpretation and renegotiation (Benhabib, 2006, p. 49). It is in these communicative spaces in between that citizens might regard themselves both as authors of the law and as subjects of the law. To summarize Benhabib s arguments so far, possible contradictions between universal rights and different national conceptions of justice, or between different universal rights, shall neither be denied nor tried to be made invisible. Neither is it possible to claim that there is only one absolute interpretation concerning the intention and meaning of a universal right. On the contrary, according to Benhabib (2006, p. 48), democratic nations are obliged, from the historical context and antecedent authoritative interpretations concerning the original meaning of the law or norm, to make sense of universal norms in new and different contexts. The antecedent thereby is reposited and resignified via subsequent usages and references. Meaning is enhanced and transformed; conversely, when the creative appropriation of that authoritative original ceases or stops making sense, then the original loses its authority on us as well. (Benhabib, 2006, p. 48) On condition that the content of universal rights is discussed freely and continuously in different public arenas, the content will be challenged, renewed and reformulated in relation to common 523

5 Ninni Wahlström deliberations. However, as Bobbio (2000, p. 40) notes, the international community must also be an arena for such a reinterpretation and reformulation concerning how different Articles on human rights might be understood and referred to at the present time. A Society Creates Its Laws through Norms, Narratives and Will Formations Democratic iterations appear both in strongly formal arenas, such as the legislative arena, and in more informal arenas, such as in different organizations and in the media (Benhabib, 2007, p. 454). Since the iterations are never exact copies of each other, but instead always contain subtle alterations, however small they might be, the content will be enriched and renewed in constantly new ways. It is precisely in such an understanding that it is possible to conceive a people both as the authors of the law and the addressees of the law. There are, however, at least three competing perspectives related to universal human rights. For those who side with natural rights doctrines, human rights have no immediate part in the acts of a national people s will. For legal positivists, the democratic potential lies in the correct interpretation of the law within the judicial system (Benhabib, 2006, p. 49). The third way the jurisgenerative understanding of universal rights differs from the natural rights and positive rights doctrines by means of its insistence that it is possible to open up a space for deliberations and interpretations in the interspace between universal law and national law, and in the interspace between law as power and law as meaning and content. Benhabib concurs with Habermas s claim in discourse ethics with its metanorm that only those normative institutional arrangements are valid which can be agreed to by all concerned under special argumentation situations. This implies that we recognize the rights of all beings to be participants in the moral conversation, to initiate new topics and to ask for justification of the presuppositions of the discussions (Benhabib, 2004a, p. 13). At the same time as the model of deliberative democracy accepts juridical regulations and state interventions in cultural disputes, it also conceives public dialogues and contests over political and moral subjects as necessary to legitimize the norms which, for example, are manifested in the law, even when the dialogues fail to come to a normative consensus (Benhabib, 2004b, p. 153). The democratic iterations are normative since they take place within this metanorm. Otherwise, the democratic iterations cannot be viewed as fair processes (Benhabib, 2007, p. 455). According to a jurisgenerative approach, democratic legitimacy claims that democratic justice is concerned with questions such as the following: In view of our moral, political and constitutional commitments as a people, our international obligations to human rights treaties and documents, what collective decisions can we reach which would be deemed both just and legitimate? (Benhabib, 2007, p. 455) Benhabib transfers the term jurisgenerative from jurisprudence, where it was introduced by Robert Cover (1983). Whereas Benhabib emphasizes the political/democratic process in giving the law a meaningful interpretation in conformity with the collective norms of a nation, Cover emphasizes the fact that we always inhabit a world of norms and conventions, finding their expressions in narratives of the world. Referring to Cover (1983), there are no judicial institutions outside this world of narratives. When law is interpreted from the narratives that give the law its meaning, the law is not only a system of rules but a world in which we live. To inhabit a nomos is to know how to live in it (Cover, 1983, p. 6) [3], it is a sort of doing. This normative world is kept together by the force of the obligations from the people s interpretations of what it means to live in a shared society. These commitments, some private others public, determine what law means and what law shall be (Cover, 1983, p. 7). According to Cover (1983, p. 10), the nomos can be interpreted in two distinct versions: the insular and the redemptive. As Benhabib (2006) notes, Cover suggests that we can perceive jurisgenerative processes when groups and societies create their laws and give them meaning through their special narratives and norms, their special nomos. But, as Cover also points out, this jurisgenerative principle cannot exist entirely in isolation from violence. The interpretation of law and rules always takes place in the shade of violence. According to Cover, law courts in general are jurispathic. The court is then given the role as the supreme interpreter of the law. If the interpretations of the law court are in accordance with the interpretations of most people in the society, no opposition will be met. Instead, the role of the law court reinforces the hermeneutic process offered by the judge and extends its social scope. It is not until the 524

6 Understanding the Universal Right to Education interpretations of the law court are met with resistance that is, when the decisions of the court are against the norms developed by a group or a society that the authority of the law court is challenged and the judgement can be given a jurispathic function that is, to remove uncertainty and to make clear what the law really is (Cover, 1983, pp. 42, 53-54). A juridical interpretation of the law acts within the tension of, on the one hand, being an arena for formulating the norms of the society from a jurisgenerative principle and, on the other hand, being an arena for supreme claims of law interpretation following a jurispathic principle. The latter principle thereby hinders further interpretations and meanings of the law. Hence, if a jurisgenerative process is striving to develop new meaning, a jurispathic attitude might correspondingly be said to cut off the striving for alternative meanings, which results in a statist juridical position. If the democratic iterations fail, if they, for example, do not succeed in making conversations in accordance with the norms of discourse ethics that Benhabib (2007) agrees with, there is no guarantee that the democratic iterations will lead to jurisgenerative politics. They can, furthermore, end up as jurispathic interpretations. What interests Benhabib is the interplay between formal processes of law making and informal processes of will formation. Although Benhabib (2007, p. 461, n. 19) does not agree with Cover in his claim that courts are characteristically jurispathic, she, following Cover, admits that this democratic interplay also can become jurispathic in that sources of meaning-generation may dry up and the law may stifle rather than stimulate contentious dialogue and the circulation of meaning (Benhabib, 2007, p. 456). The Role of the State in Relation to Education from a Legal Philosophy Perspective Cover (1983) problematizes in particular the role of the state in relation to education. With reference to a number of American cases, Cover claims that the increasing allowing attitude on the part of the state concerning schools autonomy for example, a generously construed right to run denominational and private schools mirrors the problems in the role of the state as world creating or paideic. In this role, the state has to limit its privileged role as the interpreter of meaning and of a good society. But this caution also implies that the insular and restricted nomos will be entitled to a special protection. Any alternative to this restrictive attitude would, according to Cover (1983, p. 62), preclude a jurisgenerative attitude: The school s central place in the paideic order connects the liberty of educational association to the jurisgenerative impulse itself. But precisely because the school also is the entrance to society and a contributor to its paideic mission, the school must be the focus of any redemptive constitutional ideology, a redemptive nomos. It is through education that the social possibilities for a jurisgenerative process are formed. In education are the origins of the processes in which law is given meaning (Cover, 1983, p. 66). In our modern societies, our complex nomos, it is the great variety of legal meanings, formed on communal bases, each with its own importance and justification, that shape our reality, our obligations and our visions extant at any given time. The state, and the juridical meaning of its laws, acts in the tension between a redemptive constitution on the one hand and the protection of insular associations on the other. The question is where to draw the lines. The concept of democratic iterations does not only have a normative dimension in what it means to justify a conversation in terms of democracy. It also has an empirical dimension, as it aims to be used analytically to examine how real processes of democratic discourse can create or fail to create justification through legitimation. Hence, democratic iterations might be placed somewhere between justification and legitimation of a law (Benhabib, 2007, p. 456). In the following section, it is an Article in a convention with international and national legal status, Article 2, the right to education, in the European Convention on Human Rights, Protocol 1, which is analysed through a number of Swedish official reports, government bills and motions from the 1950s onwards. The aim is to illustrate in what different ways the Article on the right to education has been interpreted and iterated in different discursive contexts in a national arena. 525

7 Ninni Wahlström The Right to Education: iterations on the European Convention on Human Rights within three discursive arenas in national educational politics The right to education in the European Convention on Human Rights, Protocol 1, Article 2, reads as follows: No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions. (Council of Europe, 1952) In the following examination, the central interest is in if and if so, in what different ways the Article on the right to education has had any influence on the national educational rhetoric and politics in the national arena of Sweden. In order to make the analysis clearer, the educational policy field has been divided into three distinct discursive arenas: the political/legal arena; the arena of political contests over independent schools; and the arena of political advocacy for denominational schools. In the political practice, however, these arenas are intertwined and constantly influenced by each other. The Political/Legal Arena as a Discursive Arena When Sweden ratified the European Convention on Human Rights, Protocol 1, Article 2, on the right to education in 1953, it added a reservation to the second part of the Article. According to the government bill (Bill 1953: 32, p. 3), it seemed that the right to education [had] been conferred a double content. The first part No person shall be denied the right to education caused no trouble. But the second part the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions did, since the government felt that this formulation failed to correspond with Swedish school law. According to Swedish law at that time, only those students with a faith other than that of the Swedish state church and whose religious instruction could be satisfactorily arranged in an alternative way passed by the government could be exempt from compulsory education. Consequently, the government made its ratification with reservations concerning the second part of the Article. In Sweden, international conventions do not automatically become a part of Swedish law. The European Convention on Human Rights was consequently incorporated in Swedish law, but not until The first part of the Article on the right to education No person shall be denied the right to education became a part of the constitutional law and the second part of the Article became a part of the general law. At the same time, the Swedish reservation concerning the ratification of Protocol 1, Article 2, was withdrawn. In arguing for the withdrawal of the reservation, the Swedish government refers to two decisions in the European Commission of Human Rights and the European Court of Human Rights respectively.[4] According to the legal cases, the second part of the Article must be read in relation to the first part; and furthermore, the first part is the dominating one: As is shown by its very structure, Article 2 (P1-2) constitutes a whole that is dominated by its first sentence. By binding themselves not to deny the right to education, the Contracting States guarantee to anyone within their jurisdiction a right of access to educational institutions existing at a given time.[5] The right set out in the second sentence of Article 2 (P1-2) is an adjunct of this fundamental right to education. (European Court of Human Rights, 1976, pp ) Hence, the government felt that it no longer had any grounded arguments for keeping the reservation since it agreed on the relational priorities between the first and second parts of the Article, and since Sweden by then had an extensive independent school system. The European Court of Human Rights (1976, p. 21) also states that the second part of the article aims at safeguarding the possibility of pluralism in education and further that it is above all through State teaching that this aim must be realised. The second part of the Article does not prevent states from imparting knowledge of a directly or indirectly religious or philosophical nature, nor does it 526

8 Understanding the Universal Right to Education permit parents to object to the integration of such teaching in the school curriculum (European Court of Human Rights, 1976, p. 22). What the state is obliged to do is to guarantee that all teaching is communicated in a pluralistic and non-indoctrinating manner. The second sentence of Article 2 (P1-2) implies... that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents religious and philosophical convictions. That is the limit that must not be exceeded. (European Court of Human Rights, 1976, p. 22) This is the primary obligation for the state; the right of parents to choose the education they prefer is subordinate to this obligation. The European Court of Human Rights notes that the text finally adopted for Protocol 1, Article 2 does not expressly enounce the freedom to establish private schools, though the Court takes note of the intention in the preparatory work of Article 2 to guarantee this freedom (European Court of Human Rights, 1976, p. 21). To sum up, the jurisgenerative politics that Sweden has put into practice concerning the Article of the right to education in the European Convention on Human Rights was at first a resistance to accept an international convention which was not in accordance with the Swedish national norms and law for education. This resistance was manifested in the Swedish reservation. In later years, when the European Convention on Human Rights was incorporated into Swedish law 40 years later, and the reservation was withdrawn, the arguments were grounded in the decisions in the European Court of Human Rights that parents rights in the second part of the Article must be read together with the child s right to education in the first part of the Article, and that the first part was the dominant one. This view was in accordance with Swedish educational norms and was expressed in the incorporation of the first part of the Article into the constitutional law. In terms of Benhabib s vocabulary about a nation s self-understanding, the Article of the right to education in the European Convention on Human Rights corresponds with Swedish norms and history in its first sentence, concerning the right to education for all children and young people. The second sentence of the Article the right of the parents was first met with resistance (the reservation of 1953) and later it was handled by means of the interpretation of the European Court of Human Rights; an interpretation which was close in accordance with Sweden s own priority concerning children s right to education being superior to parents right to demand exemption from parts of education or access to alternative private schools. The Political Contest over Independent Schools as a Discursive Arena In Sweden, a political contest concerning home schooling, private schools and later independent schools, and their relation to public education, has been going on for a long time. In this political debate, politicians have continuously referred to international conventions. The references are not necessarily specifically to the European Convention on Human Rights, but rather to the undertakings involved in signing international conventions in general. The references to international conventions and agreements are most frequently made by the Moderate Party and the Liberals, but such references have also been made by the Social Democrats, mainly during the 1990s. Yet, the European Convention on Human Rights with its Article on the right to education has had a considerable impact on the Swedish debate, as the European Court has interpreted the Article as a right to establish private schools. There is, however, no obligation for the state to support private schools with state subsidies. At the beginning of the 1980s, there were 35 private schools in Sweden, 7 of which received state subsidy. The subsidy to private schools at the time was about half of the amount per student compared to the financial support to public schools. In a government bill from the time, the nonsocialist government suggests that the term school with private authority be replaced by the term independent school (Bill 1982/83: 1, p. 13). In the same bill, it is stated that the right to establish independent schools is a consequence of international agreements: From the principles concerning individual liberties, which is one of the cornerstones in Swedish society, and from the international obligations which Sweden has undertaken through entering 527

9 Ninni Wahlström various conventions, it follows that schooling shall be permitted to be performed in private schools, provided that these schools fulfil requisite minimum demands. (Bill 1982/83: 1, p. 15; my translation) From this, the government notes, it does not follow that there is any obligation for the state to support independent schools with state subsidies. The bill suggests that the government shall consider each case individually when making a decision on the matter of state subsidy to private schools. The most important criterion for subsidy to an independent school is that its pedagogical approach can be enriching and of value also for public schools. Accordingly, subsidies shall be given only to those schools with alternative pedagogy or teaching methods. Independent schools might thereby act as stimulating alternatives to public schools. The bill suggests that the same demand for alternative pedagogy should also hold for denominational schools. At the same time, the Minister for Education also stresses that the public educational system is still the foundation for the democratic society with its uniform education characterized by equivalence and a common frame of reference. Some years later, the Moderate Party, as a party in opposition, argues in a motion that Sweden, in order to live up to international conventions, must not only formally permit independent schools. The Moderate Party claims that Sweden s acceptance of the Universal Declaration of Human Rights (1948) and the European Convention on Human Rights is enough of a motive to offer state subsidies to all independent schools approved by the authorities. According to the Moderate Party s motion (Motion 1987/88: Ub300), in order to make a free choice between different schools become a reality, the state subsidy must follow the student to the particular school the student chooses, whether it is independent or public. The Liberal Party, for its part, conceives of independent schools as an obvious right and not as a stimulus to public schools. According to the Liberal Party, Sweden has signed several international declarations where this freedom is stated (Motion 1987/88: Ub246, p. 20). Like the Moderate Party, the Liberal Party demands that the state subsidy shall be equivalent to that of the public school and that the sum of money shall follow the student. When the non-socialist parties form a government in 1991, they make a proposition to parliament to the effect that independent schools approved by the authorities are also entitled to state subsidies equivalent to the subsidies to public schools: The right and the possibility to school choice and to choose the education for your children are important in a free society. This fundamental principle has also found its expression in several international conventions, which Sweden has entered into. (Bill 1991/92: 95, p. 8; my translation) The demand that independent schools shall represent a value as a pedagogical alternative to public schools is no longer relevant. When the Social Democrats are back in office, they do not have any basic problems with the general state subsidies for independent schools, but they suggest certain changes in the subsidy regulation system. They also make further suggestions that independent schools must live up to the general values and aims of the curriculum and that independent schools must be open for all students, but on the whole they accept independent schools as part of the principle of a school for all : Independent schools have long since had a place within the Swedish educational system. They constitute a part of the total educational supply. Independent schools are different and they contribute to diversity within the educational system. The diversity is positive in itself and it is in no contradiction to equivalence or good quality. On the contrary, diversity is, as a rule, a prerequisite of development and pedagogical renewal. (Bill 1995/96: 200, p. 37; my translation) In sum, for Sweden, a country without a tradition of extensive private education, the Articles on education in the Universal Declaration of Human Rights and the European Convention on Human Rights have involved political problems regarding the right to establish private schools. The jurisgenerative politics within the discursive arena of contests over independent schools has involved a displacement from a restrictive attitude concerning independent schools in the 1980s to an almost total acceptance in the 1990s. In the 1980s, the non-socialist government took up a restrictive attitude to what from now on are called independent schools. The role of the nine-year compulsory school as an equivalent 528

10 Understanding the Universal Right to Education education for all is emphasized. The Minister for Education from the Centre Party in the nonsocialist government writes in the bill that: I perceive a clear value in the uniform educational system that the nine-year compulsory school represents (Bill 1982/83: 1, p. 15). The bill suggests that a state subsidy might be paid to independent schools on condition that they put alternative pedagogical ideas or models into practice. At the same time, the bill emphasizes that alternative pedagogical ideas must not be developed outside the public educational system in the first place, but rather within the public school system. It was more or less the same line of policy that the Social Democrats would come to pursue during the following decade, but that the Liberal Party and Moderate Party would move away from at a rapid pace. In terms of a national selfunderstanding in relation to international law, the political process around 1982 and 1983 did create a relatively unanimous national self-understanding in handling the international law claims concerning the right to establish private schools. The parties agreed broadly to a restrictive attitude towards independent schools. The next juncture for a relatively national mutual understanding concerning the relations between international conventions, public education and independent schools appeared around In the government bill from a Social Democrat government, the government accepted independent schools as a part of the public educational system characterized by the principle of a school for all (Bill 1995/96: 200). This was a way of reasoning that the non-socialists parties also could side with. The Social Democrats and the non-socialist parties agreed in principal to the proposed rules for approval of independent schools and state subsidy, but disputed over the details. The relation between independent schools and public schools could be viewed as a public educational system characterized by diversity. Diversity was also a fundamental argument for accomplishing development and renewal in education. The disputes over details were mainly about the exact level of subsidy. The parties agreed broadly to a generous attitude towards independent schools. Hence, in the democratic iterations within the political arena, the political parties agreed mostly with one another in the early 1980s and the mid 1990s. But their relative unanimity was based on totally different circumstances. While the base for agreement across the political parties at the beginning of the 1980s was a restricted number of independent schools with state subsidy, the base for the relative consensus in the middle of the 1990s was completely different: a generous state funding of private schools, built on the principle of equal conditions with public schools. The democratic iterations, with continuous references to international conventions, displaced the meaning of the Swedish public educational system from a united school system, with just a few private schools mainly based on alternative pedagogical ideas, to a school system characterized by diversity, including both public and independent schools. Denominational Schools as a Discursive Arena [6] The third and final example of democratic iterations concerning the interpretation of the Article on the right to education in the European Convention on Human Rights is taken from a different political party. In this case, it is evident that iterations are never exact copies of each other; rather, they alter in subtle ways. The examination comprises yearly motions from the Swedish Christian Democrats to the Swedish parliament between the years 1994 and Almost every year, the party promotes motions with similar, but not exactly the same, wording, referring to Article 2 on the right to education in the European Convention on Human Rights and to some other conventions as well. The Christian Democrat Party emphasizes parents responsibility concerning the upbringing of their children. The school is regarded as a complement to the efforts of parents. In this basic attitude, the Christian Democrat Party finds support in the Universal Declaration of Human Rights and the European Convention on Human Rights, the latter incorporated in Swedish law since 1994 (Motion 1994/95: Ub 368). The party stresses that the right to establish independent schools is based on international conventions and that independent schools are an important complement to public schools. In a motion concerning independent schools, the Christian Democrat Party objects to what it feels are now worsened terms regarding independent schools (Motion 1997/98, Ub216, p. 1). The 529

11 Ninni Wahlström party raises objections to some changes concerning the set of regulations for independent schools initiated by the Social Democrat Party. The Christian Democrat Party returns to approximately the same arguments in their next motion of the following year. The party expresses that it will continue to work for improved conditions for independent schools and the most important condition is that the rules are fair and far-reaching (Motion 1998/99: Ub241, p. 2). The year after, the Christian Democrat Party still thinks that independent schools must be a natural element in the educational system (Motion 1999/2000: Ub246, p. 1). The arguments are not only focused around the advantages concerning pedagogical and organizational renewals but also efficiency, with a high degree of voluntary contributions (Motion 1999/2000: Ub246, p. 1). The Christian Democrat Party appreciates the increasing number of independent schools and understands this development as entirely in accordance with the European Convention on Human Rights, among others. According to the Christian Democrat Party, the requirements of parents and children must be the starting point, and this, the party feels, is also in accordance with the European Convention on Human Rights and other international conventions (Motion 2000/01, Ub321, p.1). From 2001, the Christian Democrat Party s political rhetoric is sharpened. The party stresses that it has always fought for the right of establishing independent schools and that, early on, it had protested against the Swedish reservation concerning Article 2 on the right to education (Motion 2001/02: Ub547). The following year, the party suggests that students in independent schools must, among other things, be entitled to school transport, as long as it does not involve increasing costs for the municipality (Motion 2002/03: Ub416, p. 1). The Christian Democrat Party underlines that the difference between the government s and the Christian Democrat Party s view of independent schools is considerable (Motion 2002/03: Ub416, p. 3). Until this point the party s rhetoric refers to independent schools in general, a right which is stressed to be in accordance with the European Convention on Human Rights and Swedish law. In 2003, the term denominational schools is used for the first time in this sequence of written motions to parliament: The Swedish Christian Democrats find the increased persecution of denominational schools alarming (Motion 2003/04: Ub378, p. 3). The party feels that denominational schools should be inspected by the same norms as public schools, neither more or less rigorously. Further, the Christian Democrat Party points out that the teaching in denominational schools should be all-round, but elements of confessional character might occur in the schooling (Motion 2003/04: Ub378, p. 3). The Christian Democrats refer to the European Convention on Human Rights and claim that the former reservation against Article 2 points toward the ideological resistance against independent schools from the Social Democrat Party (Motion 2003/04: Ub378, p. 3). The following year, the Christian Democrat Party repeats its alarm concerning the persecution of denominational schools: This agitation which has been carried on by the media, among others... must come to an end (Motion 2004/05: Ub474, p. 3). The Christian Democrats argue in favour of confessional elements in denominational schools as long as these elements do not depart from the common values in Swedish schools. In the motion from 2005, the Swedish Christian Democrats think that denominational schools must be permitted to have confessional elements within their curricula and that the Swedish school law must be more explicit on this point. The party now demands that denominational schools shall have the right to have confessional elements in their teaching such as, for example, morning prayers or studies in the Koran. For this, a clarification in the school law is necessary (Motion 2005/06: Ub532, p. 7). In short, in every motion during the examined period, the party refers to Article 2 in the European Convention on Human Rights, but only to the second part of the Article, and only to the right as the parents right : It is the right of parents to choose the school which they consider as the best school regarding the child s development and learning. By that, they also have the right to choose the education which is in accordance with their own religious and philosophical convictions. This right is provided in the European Convention on Human Rights. (Motion 2005/06: Ub532, p. 7; my translation) The motions are very similar to each other, but a close examination reveals a displacement from a general support for independent schools, to a defence of denominational schools, to a demand for 530