Introduction: Advent of the International Education Law
Throughout centuries, education has often, somewhat paradoxically, been blamed for being the main cause of human evils and prized as the main remedy for correcting them. This proves the primacy commonly recognised to education, but what a good education should be has always been a rather controversial issue.
An educational revolution or paradigm shift has been claimed principally since the end of the 19th century. A very educational revolution is, first and foremost, a normative one, concerning the truly inspiring values and the aims effectively guiding education, which is purposeful, by definition. It’s about what we want to become as human beings.
There is no timeless ideal education, but there is a universal pedagogic heritage indefinitely open to the lights of the advancements of science and conscience, for the historical perfecting of the humankind. It is condensed in the right to education proclaimed by the Universal Declaration of Human Rights.
The birth of the human right to education, after a millenniallong gestation, has opened a new chapter in the History of Education. What is more, its normative, jurisprudential, doctrinal, and programmatic developments are constituents of an International Education Law that is now the highest source in the hierarchy of the contemporary normativity on education, to which should conform the Education Law in States Parties to it. Therefore, it should be recognised and studied as a new legal and educational discipline, source of the principles of legitimacy and quality of education.
This book offers a very interdisciplinary and topical introduction to the International Education Law, broadly defined. It submits that the normative integrity of the right to education carries far-reaching revolutionary significance, a corollary of the Revolution of Human Rights and the Revolution of the Rights of the Child.
Chapter 1: Education, Power and Law
A juridical approach of education as a human right raises a preliminary challenge: How to introduce it into the theorisation of the educational phenomenon?
Education is a complex theoretical-practical field of research because it is a multiform, multidimensional, multidisciplinary phenomenon, crossed by multiple interests and stakes. There are ‘sciences of education’, but their plurality makes necessary a specific discipline whose scope should be only but the whole education to bring about a fundamental and global theorisation consisting of identifying and trying to answer the essential questions involved in the educational phenomenon. Such a discipline should be, on the one hand, the centre of gravity of the professional culture of teachers and other educators to learn to reflect on education, and on the other hand, a conceptual grid of observation and interpretation to know how to act and react well in every situation. After all, there is nothing more practical than a good theory …
Education is ultimately a form of power. Well, every power of human beings over human beings raises the question of its legitimacy. The question of the legitimacy of education is that of the foundation, sense and control of the power it exerts through the contents and forms of the communication it accomplishes. It was sparked by some precursors, in the modern and contemporary history of education, but it has been, in general, unthinkable. For the traditional pedagogical mindset, educating is so natural that the question of the legitimacy of education is dissolved in this postulate: (if) education is necessary, (whatever) education is legitimate. This is fallacious reasoning, as it does not distinguish between necessity and legitimacy.
The question of the legitimacy of education amounts to determining the very criterion of the pedagogic that is the traditional signifier of all validity claims concerning education. All in all, it is a matter of answering the following bold question: By what right to educate? This is the metaquestion of education insofar as it underlies and overdetermines the subsequent ones.
Education having been elevated to human right status – the highest one of the contemporary ethical-juridical normativity – the most legitimate response to the metaquestion of its legitimacy should be researched in the right to education.
In order to grasp the revolutionary novelty of the right to education, we need first to understand the revolutionary significance of human rights and, in particular, of the rights of the child.
Chapter 2: Human Rights
Every community needs rules to regulate living together. Law is a social regulatory device that has become the most powerful driver of Civilisation. It has expanded as a normative network framing the international, social and individual life. In the contemporary world, there is no other alternative for the peaceful coexistence of cultures, peoples and the whole human diversity. The superior expression of the civilisational power of Law are human rights.
The human rights sentiment and ideal are as ancient and cross-cultural as human suffering and ideals, but the term, with its present meaning, has generalised only at the end of the 18th century, in the Western world. We may distinguish three main stages in the modern and contemporary history of human rights:
- –Philosophical elaboration of the ‘natural rights’ idea in the 17th–18th centuries
- –Declarations of ‘rights of man’ and their constitutionalisation since the second half of the 18th century, especially the French Declaration of the Rights of Man and the Citizen (1789)
- –Internationalisation and codification of human rights after World War II
The belief in the correspondence between what is ‘right’ and what is ‘natural’ underlies the ‘Natural Law’ and ‘natural rights’ ideas, which were groundbreaking insights in the genealogy of the human rights concept.
International Law does not provide a definition of ‘human rights’. They are said to be inherent in the ‘human dignity’, but there is no legal definition of human dignity either. Following the most elementary and common one, human rights are rights recognised to every human being simply because of being a member of the human species. They aim at protecting the weakest against the strongest – especially the State – as well as guaranteeing to everyone minimum conditions for a dignified life. As a consequence, human rights are universal, by definition, and are qualified as “equal and inalienable”.
- –They are equal because they are held by every human being, without any discrimination, everywhere.
- –They are inalienable because they are never lost, i.e. they cannot forcibly be taken away (by expropriation) or voluntarily given up (by transaction).
Although ‘human rights’ is the most common term in International Law, the most used in constitutional texts is ‘fundamental/basic rights’, which include other exclusive citizens’ rights, such as the right to vote. There is also the term ‘fundamental freedoms’, but no conceptual distinction can be drawn between human rights and fundamental freedoms. There are still the term ‘civil rights’ and the French term libertés publiques (public liberties/freedoms).
The history of human rights’ juridification – i.e. of their moral claims becoming Law – is frequently presented as a ‘generations’ succession, reflecting the trilogy of the French Revolution: Liberté (Liberty: first generation), Égalité (Equality: second generation), Fraternité (Fraternity: third generation). This is contro-versial, however, because it is neither historically nor conceptually accurate and may be misleading.
The United Nations Charter (1945) was the first universal treaty to proclaim the principle of respect for the human dignity and rights, which were given name and content in the Universal Declaration of Human Rights (1948). In 1966, two major human rights treaties were adopted: International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. The Universal Declaration and the two International Covenants, adopted by the United Nations General Assembly, form together the so-called International Bill of Human Rights that constitutes the universal most general framework of International Human Rights Law. Its Corpus Juris (Body of Law) includes seven other universal core human rights treaties and some hundreds of instruments, conventional or declaratory, with general, specific or categorical content, and universal or regional in scope.
Determining the structure and normative content of a human right amounts to answering the following main interrogations: Who holds the right (entitlement: right-holder)? In what does it consist (object: to what is it a right)? Who has the corresponding obligations (exigibility/opposability: duty-bearers)?
- –Holders of human rights are, by definition, “everyone”, “every human being”, “all persons”, except when a legal instrument addresses a more vulnerable category of persons (children or women, for example).
- –The object of a human right provides what the right-holder is entitled to. Each right aims at protecting and fostering a fundamental universal human value by laying down the inter-dictions it commands and/or positive measures it requires.
- –Duty-bearers are those obliged to fulfil the object’s normative content. They are principally States, individually and collectively, as they are the authors and direct addressees of the International Law to which they oblige themselves.
The specificity of each right is essentially determined by its object, the content of which may be described as a normative complex composed of three layers, as it were: minimum content, full content and expanded content, to which correspond as many States’ obligations levels.
The protection of human rights displays two faces: one turned to the inside, to national legal orders, the other one turned to the outside, to International Law. In effect, this is the double paradox of human rights: they are born against the State, against the abuses of public powers, but need protection and provisions by State; however, if States should be their main guarantors, they are often their main violators. Therefore, the protection of human rights is also a responsibility of the International Community, as the last resort.
There are international systems/regimes for the protection of human rights at the universal and regional levels. The United Nations universal system is made up of twofold mechanisms: Charter-based and Treaty-based. At the regional level, there are three systems: European (Council of Europe), American (Organisation of the American States), African (Organisation of African Unity – African Union since 2000). There are still other regional organisations and instruments.
When the victims of violation (or threat of violation) of their rights (or someone on their behalf) can submit a complaint to an independent and impartial instance to repair (or to prevent) it, the right is said to be justiciable. Justiciability, in a strict sense, is accomplished by Tribunals, which are the organs typically competent to take binding decisions based on laws and facts. Their jurisprudence (interpretations) contributes, to a large extent, to define and develop the normative content of human rights.
As a World Court of Human Rights is still lacking, there is no veritable Case Law on human rights at the universal level, but there are regional Courts (European, American, African). The most comprehensive regional Case Law is due to the organs of the European Convention on Human Rights (the former European Commission of Human Rights and European Court of Human Rights, now merged in a permanent Court).
The protection and promotion of human rights begin with each and every person, howeve: to know, to claim and to exercise one’s human rights is a duty towards the personal dignity, the communities in which we live and our common Humanity.
There are tens of thousands of Non-Governmental Organisations, international and national, devoted to human rights.
The interpretation and implementation of human rights treaties should be made according to general rules of International Law and other principles specific to the International Human Rights Law. The latter may be systematised into the following categories: ethical principles, most general legal principles, other legal principles, jurisprudential principles, political principles. They form a whole whose overall sense is the guarantee of all human rights for all, as fully as possible.
The ethical principles are paramount. They form an Ethics of Human Rights that should be highlighted.
The history of human rights is the history of the invention of the Human Being by human beings. Of the revelation of Human Being in human beings. The Human Being is the ethical subject transcending the empirical subjects – ethnic, cultural, national, social, familial, psychological and other ones – with their roots, memberships, cradles, situations and other particularities. The ethical subject stands for the field of values and the forum of conscience as the epistemic subject for the field of knowledge and the realm of science (as well as the citizen for the social diversity).
Human rights constitute an Ethics because their source and sense are the worth and dignity of the human person, whose absolute primacy they consecrate. The Ethics of Human Rights concentrates the juice of the best fruits of the cultural plurality of the humankind, expressing the quintessence of the evolution of its conscience. It is, therefore, an intercultural Ethics with legal force and political, economic, pedagogical and other exigencies. Adding a universal moral heritage to the genetic heritage of the human species and the cultural heritages of peoples, human rights vest every human being with a common ethical identity, making him/her a citizen of the world.
Here is the most profound and transcendent significance of the Ethics of Human Rights: The Human Being should be a God for human beings. His temple sanctum sanctorum (the most sacred place) is Human Dignity.
Human Dignity is the most brilliant star in the human rights firmament, the highest light-house in the ocean of the human species’ indefinite destiny. It lies at the heart of the Human Rights Philosophy and is the spinal column of the International Human Rights Law, the axiological core of a New Constitutionalism, the supreme value of the Rule of Law, the embryo of a Law of Humanity. The Human Dignity Principle may be considered as the quintessence of Civilisation.
It may be said that human dignity and rights are fruits of a double Historical Consensus:
- –The moral consensus of religious traditions and philosophical wisdom crystallised in the Golden Rule as a principle of reciprocity, empathy and compassion that distinguishes humanity from animality.
- –The legal consensus laid down in the Universal Declaration of Human Rights, whose values and principles have expanded, becoming the Law of Law, that is, a superior and indisposable Law.
While human dignity is said to be the source of human rights, it remains, paradoxically, a foundation lacking to be founded … An account of the human dignity and rights foundation/justification is submitted that consists in arguing the following sentences:
- –Human dignity is the principle and the sense of human rights
- –Human dignity hallmarks the belonging to the human species
- –Human dignity is an ethical invention with genetic foundation
- –Human dignity consists in perfectibility calling for perfecting
- –Human dignity is inviolable and indisposable
- –Human dignity is vulnerable and variable
It may be concluded that human dignity is composed of three layers, as it were:
- –Objective layer, formed by the ‘first human nature’. It can be known.
- –Intersubjective layer, concerned with the ‘second human nature’. It must be recognised.
- –Subjective layer, depending on each one’s merits and behaviours. It should be deserved.
Summing up: Human dignity is a natural attribute, a moral status and a personal responsibility.
There are other values-rights-principles constituents of the Ethics of Human Rights, allowing for the following definition: The Ethics of Human Rights is an Ethics of the Recognition of Human Dignity as a Principle-Right to have Rights – rights of a living human being – which are fundamentally the Rights-Principles of Liberty, Equality, Diversity, with the consequent Responsibility.
The Ethics of Human Rights has become the Ethics of Humanity, the Common Temple of the secular faith of the Rule of Law. And as human dignity will never be definitively protected and enhanced, the Human Rights Temple is an endless building, open to the Possible …
Revolution is a term frequent in human rights literature. Three moments and documents may be highlighted in the history of the Revolution of Human Rights:
- –Declaration of the Rights of Man and the Citizen (France, 1789)
- –Universal Declaration of Human Rights (United Nations, 1948)
- –Convention on the Rights of the Child (United Nations, 1989)
The Revolution of Human Rights may be summarised as follows:
- –Consecration of the Individual as the highest ethical-juridical value
- –Transformation of the International Law and renovation of the Constitutional Law
- –Reconstruction of the Rule of Law
- –Inception of a Law of Humanity
The Revolution of Human Rights is an everyday individual, collective, endless struggle …
Chapter 3: Rights of the Child
The recognition of the rights of the child has meant a historical deepening of the logic and ideal of human rights.
The history of childhood is crossed by the ambivalence of its representation and treatment by adults. A pessimistic mindset has long prevailed, underlying the lasting violence over children. It is submitted that the evolution of the attitudes towards children may be historically schematically divided into the following three eras, at least as the Western culture is concerned:
- –Unawareness of the childhood specificity and despise of children, regarded as humanly inferior and reduced to the condition of being objects of property and violence (for millennia).
- –Awareness of the value of childhood and dawn of a new sensitivity regarding children as developing human beings, arousing feelings of compassion and love and demanding protection and care (since the Renaissance).
- –Recognition of the child as a human person equal by dignity and rights, in the Convention on the Rights of the Child, which has become the source of a new International Law of the Child.
The International Law of the Child deals with her/his human rights internationally recognised and protected, at the universal and regional levels. It is inseminating national legal orders.
Parents are naturally the first responsible for the rights of their children, but legally the main responsible are States. There are Committees on the Rights of the Child at the universal and regional levels. At the national level, there are varied institutions devoted to the rights of the child. They are also the cause of thousands of international and national Non-Governmental Organisations.
We know why human rights constitute an Ethics of Humanity. The rights of the child have an ethical content too, fundamentally because they outlaw the discrimination of children on account of their age, and command their special protection by virtue of their age. They recognise, therefore, both the ethicallegal equality and the biopsychological difference of children, i.e. they protect the fullness of their dignity and rights, as human beings, and their immaturity, vulnerability and perfectibility, as children.
The Ethics of the Rights of the Child – inscribed in the Ethics of Human Rights – may be summarised into the following principles:
- –Primacy of the “best interests of the child”
- –Love, respect and responsibility for the child
- –Evolving autonomy of the child
- –Priority of children
The New International Law of the Child meant a movement from the traditional (naturalist) representation of the child-object of Law towards a new (ethical) vision of the child-subject of rights. It is the culmination of an evolution that means a revolution, as it is generally acknowledged by both its defenders and detractors. The Revolution of the Rights of the Child is, however, the most candid and peaceful one: it consists simply in fully recognising and treating children as human persons. It is an ethical and juridical revolution, but above all, it is the principle of a deeper, slow and long cultural revolution because it must transform mentalities and customs.
The Convention on the Rights of the Child is a visionary text. That is why the idea of ‘rights of the child’ remains resisted. Underlying most resistance is this misunderstanding: to recognise rights to children is to take them away from parents. The rights of children are not rights against adults, they make them better human beings, instead. If they are respected, children will be adults more developed, conscious, creative, happy, responsible, better citizens and better educators of their children.
The right to education is the Bastille of the Revolution of the Rights of the Child.
Chapter 4: Right to Education
In the history of education, three eras may be roughly distinguished, before its recognition as a human right:
- –Education as mostly a familial matter, the longest era.
- –Education as a national interest, from five centuries or so ago.
- –Education as an international concern too, from the late 19th century.
Along millennia, education has been taken as a natural extension of parents’ power over their progeny-property, supported by religions and surrounded by community’s needs, interests and pressures.
The economic, political and ideological value of education was discovered, in the Western world, since the end of the Middle Ages, as instrumental for Nation-State building. The idea of national education emerged, competing with the centurieslong Christian ‘monopoly’ of education. The ideology of the Enlightenment put the public interest in education ahead of other ones.
Because of it being the main resource for the cultivation of a nation’s identity (and for other not good motives), education is maybe the dimension of peoples’ life most resistant to internationalisation. The principles of State’s sovereignty and non-intervention in domestic affairs – cornerstones of the classic International Law – have been the strongest obstacles to the internationalisation of education until (and after) it was proclaimed a ‘human right’.
It is submitted that the major precursors of the normative distinctiveness of the human right to education, at least within the Western culture, were Comenius (17th century) and Rousseau (18th century), for these main reasons: Comenius pointed to the universality of education as imperative of the anthropological educability, Rousseau questioned the legitimacy of the educational power, alongside with that of the political power.
Education is a word absent from the French Declaration of the Rights of Man and the Citizen (1789), as well as from the precedent American Bills of Rights. The constitutional recognition of a ‘right to education’ occurred, for the first time, likely in the Brazilian Constitution of 1934.
At the international level, education was first recognised as a human right in the American continent by the Charter of the Organisation of American States and the American Declaration of the Rights and Duties of Man (1948). At the universal level, it was first pro-claimed, some months later, by the Universal Declaration of Human Rights.
Therefore, although in the history of great concepts there is dawn when it is no longer night but day is not yet fully born either, talking about the recognition of a very ‘right to education’, before the 20th century, sounds anachronism. Indeed, the right to education:
- –is not just a (natural) right of children, morally opposable to parents;
- –is not only a (social) right increasingly vital for the existence, subsistence and progress of a nation, justifying compulsory schooling;
- –is rather an (individual) right internationally and nationally recognised and protected as a human right essential for the personal flourishing of beings endowed with perfectibility and the aptitude for rationality, morality, creativity and responsibility.
The Universal Declaration Article 26 has become the source of an International Education Law that comprises provisions in much more than one hundred legal texts. Its universal most general normative framework is the International Bill of Human Rights. The principal universal conventional categorical provisions are laid down in the Convention on the Rights of the Child. The Convention against Discrimination in Education remains its main specific instrument.
In accordance with the titles of the International Covenants on human rights, they fall into five categories: civil, political, economic, social and cultural. While the right to education has a cross-cutting content, it is generally included in ‘cultural rights’.
Education means a process and the outcome of the process. There are tens of definitions in the history of the pedagogic thought, varying from broader to narrower conceptions. We also find definitions in International Education Law instruments and Case Law, as well as in international glossaries.
The international terminology on the right to education and the respective translations are voluble and variable. Since the 1970s, the term “basic education” has begun to generalise, but there is no international consensus about its scope. It means, in general, the segment of a school system that is compulsory and should be free.
Like all human rights, the right to education is a right of “everyone”, children and adults, women and men, white, black or whatever their colour and belongings, differences and other circumstances.
As the educational phenomenon consists in learning, right to education fundamentally means right to learn. Therefore, determining its object amounts to answering the following main interrogations: Learning … for what? … what? … how? … It is described principally in the following provisions: Article 26 of the Universal Declaration, Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights, Articles 28 and 29 of the Convention on the Rights of the Child.
The learnings to be ensured in order to meet the aims of the right to education internationally agreed are not determined, but there are indications in other international texts. They are frequently summed up in the so-called “four pillars” of education, namely: learning to know, to do, to live together and to be.
The exigibility of the right to education concerns persons or entities with obligations or responsibilities regarding its satisfaction, i.e. to which it is opposable. They are families, first and foremost, but the realisation of the whole object of the right to education exceeds their means. States are the principal responsible, legally and politically, for guaranteeing human rights, as we know. The International Community bears a subsidiary responsibility, by means of intergovernmental organisations. The right to education is self-opposable too, i.e. a duty of each one towards himself/herself. Education is a right-duty, more than any other human right because in it is at stake the humanisation itself.
There are many Non-Governmental Organisations devoted to the right to education.
States’ obligations being paramount, they should be highlighted. They are general and specific.
States have general obligations to the International Law they agree. Their specific legal obligations concerning the right to education correspond to its triple normative content, following the distinction proposed. Therefore, they may be represented as three concentric circles: minimum, full, and expanded content/obligations.
- –Minimum content/obligations consist of free primary education, without discrimination, while developing a complete education system, progressively free, with respect for the liberties of education; and of assuring that public and private education meet the aims set out in the international provisions on the right to education and conform to other national norms.
- –Full content/obligations comprise all the formal elements of the object of the right to education, to which applies the so-called ‘4-A Scheme’, namely: availability, accessibility, acceptability, adaptability. Considering that acceptability and adaptability are largely overlapping and sometimes confused notions, and given the timeliness and comprehensiveness of the principle of quality education – which can subsume its acceptability and adaptability – as well as the overarching significance of the equity principle, in its relation with the principles of non-discrimination, equality and diversity, the 4-A Scheme could become: Availability, Accessibility, Quality, Equity.
- –Expanded content/obligations, as here understood, cover the full content, all commitments internationally assumed by States concerning education, and other obligations derived from the principle of human rights interdependence and the dialectical relationship education-society.
Three paramount specific States’ obligations are the following ones: all education shall be directed to the purpose of the right to education; everyone shall be guaranteed basic free compulsory schooling; private education shall be regulated and supervised.
The international protection of the right to education comes under general mechanisms common to other human rights, at the universal and regional levels, as well as special mechanisms within the UNESCO framework (and the International Labour Organisation, concerning the professional element of its normative content).
There is a worldwide considerable Case Law on the right to education. The most important one is that of the organs of the European Convention on Human Rights, whose jurisprudence is the most significant contribution of the European Education Law to the International Education Law.
The right to education displays some distinguishing characteristics:
- –It is the most complex human right
- –It is the most empowering human right
- –It is the only human right with a formally free element
- –It is the only human right with a compulsory component
- –Its content is among the most internationally developed
- –Its content includes elements from all international legal sources
The human primacy of education is an idea crossing the history of education, reverberated in proverbs of the wisdom of many peoples, and has prominent spokespersons. It is an anthropological, moral, psychological, economic, political and legal primacy.
The priority of the right to education – that is relative because of the human rights interdependence – was often invoked during the travaux préparatoires of its major international provisions, is recognised by the International Human Rights Law, has been affirmed by jurisprudence and is supported by doctrine. It has been rediscovered, in a way, by the International Community, and the right to education has gained unprecedented visibility on the International Agenda, as witness conferences, declarations, action programmes and other texts and initiatives. Indeed, while all human rights have an essential ethical dimension, by definition, because their source and sense is human dignity – the supreme value – the right to education has an incomparable ethical radicality, because of its consubstantiality with the human dignity.
The recognition of the liberty of education preceded historically that of the right to education, as an element of the liberty of expression proclaimed by the French Declaration of the Rights of Man and the Citizen (1789). With the proclamation of the human right to education, the relationship with the liberties of education included in its wording has become debated. Education liberalisation and privatisation policies, from the 1980s, have revived the controversy. What is at stake is answering two main questions:
- –Is children’s education a “fundamental right” of parents?
- –Is education privatisation compatible with the International Education Law?
Family rights have historical and cultural roots whose resilience is reflected in the legislation and jurisprudence of many countries, frequently recognising to parents an (almost) absolute right over their children. The most sensitive issue relating to parents’ liberties of education concerns the religious and moral education of their children.
The recognition of a “fundamental right” of parents concerning the education of children would not be compatible with their “human right” to education. If conflicts arise between Family and State in this respect, what is really at stake is neither a Family’s right nor a State’s right, but the right to education of the child. It must be protected both against the State, in case of attempted totalitarian appropriation of children, or against Family, if the physical, psychological or moral integrity and the personal development of children are at risk. And not by replacing one totalitarianism with another.
As education privatisation is concerned, International Education Law excludes both a public monopole and the complete privatisation of education. States have an obligation to establish and to develop a public education system with a free compulsory component, as well as to adopt and supervise compliance with regulations ensuring that private provision of education meets international and national standards on the right to education.
The most recent international commitments towards the implementation of the right to education are the Incheon Declaration together with the 2030 Education Agenda, adopted in the context of the United Nations 2030 Agenda for Sustainable Development. They draw a new vision pointing to an education qualified by the following attributes: human right approach, humanistic, holistic, child-friendly, child-centred, empowering. It is a vision opposed, therefore, to an education captured by ethnic reflexes, religious beliefs, partisan indoctrination or neoliberal economism.
Human rights indicators are quantitative/statistical and qualitative/normative references of achievement, in a complex relationship. The right to education indicators should a fortiori (for a still stronger reason) be both quantitative and qualitative.
Every education issue should be examined following a human right approach, according to which the right to education is Right to a Rightful Education.
Chapter 5: Towards a Rightful Education
For the traditional educational mindset, the individual ‘right’ to education is a mere reflex of the family and social right to educate children according to dominant domestic beliefs and interests. This political-pedagogical paradigm – that was dominant de jure and de facto (by Law and in fact) until modern times – is holistic in the sense that the Whole (community) prevails over the parts (individuals). This amounts to a right of education (an expression absent from the International Human Rights Law).
It was against the traditional holistic political-pedagogical paradigm of the right of education that emerged, in the late 19th century, in the American and European continents, the most powerful wave of renewal in the history of education: the New Education Movement, which reached its apogee between the two World Wars. It evolved as a true Education International gathering education professionals from all continents, as well as personalities from other professional and scientific areas. However, ‘new education’ was a term with varying assumptions. What was most unifying of its heterogeneity were reformism, child-centrism and pacifism.
In the documents and speeches of militants of the New Education Movement, there are references to human rights, the rights of the child and the right to education, its values and principles. The normative content of the right to education reflects and universalised the ideal that, during nearly two decades, gathered so many actors of this fascinating chapter of the History of Education.
Indeed, the right to education is a new right to new education.
The International Human Rights Law is rooted in the subversion triggered by the New Law of the French Revolution. As regards the right to education, in particular, it is a new right for two main reasons:
- –Education was recognised as a human right, i.e. a right qualified by its subjectivity, universality and exigibility, but specifically for its normativity.
- –The right to education has evolved at the normative, jurisprudential and doctrinal levels, reaching a higher coherence in the Convention on the Rights of the Child.
The right to education is, therefore, right to a new education, i.e. to a human right or rights-based approach of education, that is, conducive, under the Rule of Law, to a Rightful Education understood as education consistent with the normative integrity of the right to education that may be condensed in Principles of the Ethics of the Right to Education, from which stem Educational Rights.
The right to education has an ethical significance – inscribed in the Ethics of Human Rights and the Ethics of the Rights of the Child – fundamentally because it is not a right over the human being, but a right of the human being. Right to a Rightful Education that should be the criterion of a good education.
The major theories in the history of education are conceptions of a good education, structured, at least implicitly, by the already mentioned conceptual trilogy inspiring its main definitions: Perfectibility, Perfection, Perfecting. This is reflected in the transcendence always recognised to the purpose of education – the Kantian Kingdom of Ends. As set out in the main international provisions on the right to education, its purpose may be summed up in the following Principles of the Ethics of the Right to Education:
- –Primacy of the best interests of the subject of the right to education
This is a principle deriving from the general primacy of the subject of human rights and generalising the primacy of the best interests of the child in education.
- –Development of the human personality: free, full, harmonious
This is a principle identifying the specific value of the right to education that should be the sense of all school learnings.
- –Priority of human rights education as an ethical, civic, international education
This is a principle reaffirming and renewing the traditional primacy of moral education and synthesizing the scope of its present conception.
From the Ethics of the Right to Education stem Educational Rights that are, foremostly, the rights of children and adolescents within the two main institutions of education which are family and school. They may be summed up as follows:
- –Right to pedagogical responsibility
- –Right to be different
- –Right to respect for human dignity and rights in education
- –Right to learn the and in the mother tongue
- –Right to the whole object of the right to education
- –Right to a right to education school
- –Right to admirable education professionals
- –Right to an effective remedy
A Rightful Education demands a Right to Education Policy and a Right to Education Pedagogy. Furthermore, if ‘Sciences of Education’ are all knowledge disciplines which can contribute to the comprehension of the educational phenomenon and the improvement of education, they should include notably the following ones: International Education Law, Neuroscience of Education, Semiotics of Education, Aesthetics of Education.
Conclusion: One Day, the Humankind …
The Revolution of the Right to Education is ultimately about solving the Gordian Knot of the humankind having to educate itself and singling out the right to education as Right to Possible.
It is submitted that this is perhaps the secret for solving the Gordian Knot of education: it will begin to be decisively disentangled only when children might learn to be with the best human beings.
How do we get the best human beings to become educators? They should be chosen by rulers. And who chooses the rulers?
The best education is one ethically illuminated by the best idea of human perfection, scientifically enlightened by the best knowledge on the human nature, and politically entrusted to the best human beings by better rulers elected by better educated citizens. The dissolution of the education Gordian Knot will thus take a lasting temporal magnitude …
What is the best humankind has ever envisioned for becoming better?
The answer seems indisputable: it is the Ethics of Human Rights and, in particular, the Ethics of the Right to Education as Right to Possible. Human rights institute limits that it is necessary to learn and open possibilities that should be explored and brought about. The right to education is the right to learn both the limits of the human finitude, which inscribe in the species’ children their ethical identity, and the Possible as the ontological utopia of the infinite human perfectibility …
Education is a genetic human need vested with human right status. This fundamentally means that, without education, human beings are not fully human, i.e. are not empowered to accomplish their unique worth and dignity.
The Revolution of the Right to Education means the political-pedagogical breaking of the vicious circle of the historical and psychological ‘cloning’ of the coming generations by the older ones, driven by the human compulsion and ‘divine’ temptation to ‘create’ children in their image and likeness. The pedagogical reason is no longer the biological reason of the Family nor the political reason of the State, but the Ethical Reason of the Subject, opening to full human flourishing.
Now that we know why education is the greatest power and the greatest responsibility of the human species, maybe it will be able to reach – in time – the full awareness that the right to education is the abracadabra to find the Holy Grail of its destiny …
To be or not to be a human right – here is the question regarding the future of education and our Humanity.