23 SES 08 C, Processes and Sources of Legitimation in Policy-Making and Implementation
The paper first accounts for the growth of what Ehrlich called ‘legal pollution’, or the intensification of formal law in modern societies, a phenomenon Habermas later termed ‘juridification’ (Habermas, 2006). This entails the expansion of law, which comes to supplant ‘hitherto informally regulated social matters’, and its densification, or ‘the specialized breakdown of global statements of the legally relevant facts into more detailed statements’ (ibid., p. 357). Habermas explains the rise of juridification in terms of the historical requirement of capitalism to ensure the dependable regulation of business, something Weber had observed as part of the broader sweep of rationalisation in the industrial world, but also as a consequence of political struggle that gave rise to ‘situational freedoms’ (Weber, 1930), or ‘freedom-guaranteeing “juridification” ’ (ibid., p. 361), in areas like employment law.
The paper then argues that juridification has come to permeate the fabric of education at all levels and seeks to describe its rise and evaluate the problems that accompany it. For example, as universities move to become corporate businesses students are today more inclined to demand their consumer or human rights through legal challenge (Shannon, 2013). Similarly internal quasi-legal regulations often detail what staff should include in their module handbooks presumably to protect, in part, the institution from accusations of regulatory negligence. Procedures to ensure copyright law are enforced with increased rigour and Student Charters (e.g. Leeds Metropolitan, Anglia University), that are contractual in nature although not legally binding, make explicit what various parties have agreed to and imply there could be recrimination, legal or otherwise, should there be deviance (see Bastiani, 1996, p. 9; Norman Waterhouse Lawyers, 2004).
Schools too have become increasingly subject to juridification. The paper focuses upon three areas. First, the number of ‘statutory instruments’ affecting schools has increased dramatically since the 1950s (House of Commons, 2012) and these now determine what should be taught in maintained schools and how outcomes are inspected. The paper argues that this form of juridification alters the professional status of teachers where the tradition of not telling them how to teach has been a position consistently maintained by politicians (e.g. NNC 1989, DES, 1989; DfES, 2003) but is increasingly traversed in practice (Coulby, 2000; Alexander, 2004; see also the Teachers’ Standards, DfE, 2012).
Second, health and safety directives have sought to diminish the risk of pupil injury within, and outwith, schools. While the Health and Safety Executive describe much of its recent augmentation as fiction, a tissue of ‘regulatory myths’ (HSE, 2012) – that includes the banning of conkers and even triangular shaped flapjacks for fear of damaging the eyes of pupils (BBC News, 2013) - some have argued that often their non-specificity creates a climate that limits risk but augments a fear of exploratory voyaging and leads to the dismantling of possible learning opportunities, like out-of-school study or work experience (Almond, 2009).
Third, the Home School Agreements had been a legal requirement in all maintained schools, academies and city technology colleges in England and Wales since 1998 (School Standards and Framework Act, 1998). The Department for Education describes it as a statement explaining ‘the school’s aims and values’, ‘the school’s responsibilities towards its pupils’ and ‘the responsibility of each pupil’s parents’ (DfE, 2013, p. 1). However, while they are not legally binding they are quasi-contractual in nature and there is evidence to suggest that juridification in this form jeopardises the legitimacy of norm-conforming attitudes and identity-forming social memberships that form the basis of school communities (Gibson, 2013).
Alexander, R (2004) ‘Still no pedagogy? Principles, pragmatism and compliance in primary education’, in Cambridge Journal of Education. 34(1). Almond, P. (2013) Corporate manslaughter and regulatory reform. Basingstoke: Palgrave. Bastiani, J. (1996) Home–school contracts and agreements—opportunity or threat? London: RSA. BBC News Essex. (2013) Canvey Island school bans triangle shaped flapjacks. Retrieved from: http://www.bbc.co.uk/news/uk-england-essex-21923218 Coulby, D. (2000) Beyond the National Curriculum: Curricular centralism and cultural diversity in Europe and the U.S.A.. London: Routledge Falmer. DCSF (Department for Children, Schools and Families) (2008) Working together: Listening to the voices of children and young people. London: DCSF. DfE (Department for Education) (2012) Teachers’ Standards in England from September 2012. Retrieved from: www.tda.gov.uk/standards DfE (2013) Department for Education (2013) Home–school agreements—Guidance for local authorities and governing bodies. Retrieved from: http://www.education.gov.uk/schools/pupilsupport/parents/ involvement/home–school agreement/a0014718/home–school-agreements DES (Department of Education and Science) (1989) National Curriculum: From Policy to Practice. HMSO: London. DfES (2003) Excellence and Enjoyment: a strategy for primary schools. London: Department for Education and Skills Gibson, H. (2013) Home–school agreements: explaining the growth of ‘juridification’ and contractualism in schools. In Oxford Review of Education 39(6)780-796. Habermas, J. (2006) The Theory of Communicative Action: Volume 2. Cambridge, Polity HSE (Health and Safety Executive) (2013) Myth busters challenge panel findings. Retrieved from: http://www.hse.gov.uk/myth/myth-busting/index.htm Hobbes, T. (2008 ) Leviathan. Oxford: Oxford University Press. House of Commons (2012) Acts and Statutory Instruments: the volume of UK legislation 1950 to 2012. Standard Note: SN/SG/2911. NCC (The National Curriculum Council) (1989) The National Curriculum. An Introduction: the new terminology. HMSO. London Norman Waterhouse Lawyers. (2004). Contract-v-agreement. Agreement, 44, September. Retrieved from: http://www.normans.com.au/news/business_issue48_sept2004.html Shannon, D. (2013) Why I am suing Oxford for 'selecting students by wealth'. The Guardian (21st Jan 2013). Retrieved from: http://www.theguardian.com/commentisfree/2013/jan/21/suing-oxford-university-students-wealth School Standards and Framework Act (1998) Part IV: Home–school agreements (Paragraphs: 110–111). Retrieved from: http:/www.legislation.gov.uk/ukpga/1998/31/contents Student Charter (The) – Anglia Ruskin University (2014). Retrieved from: http://web.anglia.ac.uk/ Teubner, G. (ed.) (1987) Juridification of Social Spheres: A Comparative Analysis in the Areas of labor, corporate, antitrust, and social welfare law. Walter de Gruyter, Berlin. Weber, M. (1930). The Protestant ethic and the spirit of capitalism. London: Unwin.
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