This paper examines how the universal human right to education can be understood in terms of what Seyla Benhabib considers at ‘democratic iterations’. By examining the use of the article of the universal right to education in the European Convention on Human Rights over a period of almost 60 years, 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 right to national law and debates, as democratic iterations. Thus, the aim of the paper is to explore the process of establishing the article of the right to education within the European Convention and the following adaptation of this article within the domestic policy arenas in Sweden, until today. This might seem as a very specific case, with insignificant interest outside Sweden. But my claim is that in our time, in Europe and elsewhere, when trans-national agreements are more frequent than ever, it is important to try to reach different ways of understandings of how trans-national agreements can be transformed to national interpretations and national law and rules. In this paper it is the democratic iterations of the right to education which is at focus, and Sweden rather serves as an example; the process of iterations might be relevant for other nations as well.

Benhabib (2004) follows Habermas (2007) in agreeing to that universal human rights and popular sovereignty is in accordance with the democratic constitutional state. Benhabib suggests the concept of ‘democratic iterations’ for developing an understanding of how “public argument, deliberation, and exchange through which universalist rights claims and principals are contested and contextualized, invoked and revoked” throughout legal and political institutions in a democratic society (Benhabib 2004, p. 179). Further, by referring to the concept of jurisgenerative politics, Benhabib argues that a democratic people reinterpret guiding norms and principals, which they found themselves bound to, through iterative acts, so that they not only are the subject but also the author of the laws (op.cit). In this paper, with its base in ‘democratic iterations’ and ‘jurisgenerative politics´’, I take my starting point in a brief from the preparatory deliberations of the European Convention of Human Rights, reproduced in “Travaux Préparatoires” (for a more comprehensive study on this subject, cf. Wahlström, 2007, ECER). By tracing the democratic iterations of the universal right to education through international law, The European Court of Human Rights, and national law and politics (official reports and proposed motions) I will try examine different ways of understanding the meaning of ‘the universal right to education.

The preliminary outcomes from the examination is that religious freedom and the right of not being indoctrinating by a totalitarian State, play an important role in the preparatory deliberations of the European Convention of Human Rights, within the framework of the Council of Europe, 1949-1952. You might say that the civil right of the individual is predominant. On the other hand, in some important law cases, the European Court rather emphasize the child’s right to free education, that is to say a displacement toward the right of education as a social right, even if the right to establish private schools also is acknowledged. In the tensions between parents’ rights and children’s rights, between civil rights and social rights, you can find three parallel traces in the national ‘democratic iterations’ with its jurisgenerative politics in Sweden: a law trace, beginning with a reservation in the ratification of the article of the right to education in the European Convention on Human rights, First protocol, Article 2, in 1953, and ending in a incorporation of the right to education in the constitutional law (the right of the child to free education) and in national law (the right of the parents’), in 1995; a trace of independent schools which may be is the most influential invocation and revocation of the European Convention in the Swedish educational politics, starting with a political debate in the 70’s, an official report on the subject in the 80’ and a transformation of the educational politics, establishing a generous system of independent schools receipts of State subsidy during the 90,s; and finally, a confessional trace, based in the European Convention and the parents’ rights concerning education and exerted by the Christian Democrat Party during the last decade, to 2006.