Conference Agenda

Symposium Aims

This symposium brings together researchers from Sweden, Norway, UK and Chile to discuss the relation between juridification and education. The so far available limited research on this issue has mainly been subject-specific, often split between research on the legislation itself, or the enactment of specific forms of juridification. In addition, in critical studies of education the legal system has until recently remained an outlier, and few have tried to understand this phenomenon in relation to different national contexts.

The aim of this ECER 2024 symposium is to empirically broaden and theoretically deepen our knowledge on the many faces of juridification in education. The double character of juridification is an important starting point, namely that the use of legal means can both contribute to creating a just, equal and democratic society, at the same time as there is a risk of adverse consequences, such as overregulation and leading to a colonization of the lifeworld. This duality also puts the light on the complexity embedded in the concept of juridification, as it points to the many interconnections between education and other systems, especially politics and law. Moreover, from this follows that juridification can appear both as direct means to govern education, as well as a result of surrounding societal changes. Although juridification has received rather limited attention in the education literature so far, there has yet been discussions in other fields for a longer time, especially by sociological researchers with central names as Jürgen Habermas and Günther Teubner. What relevance does the phenomenon of juridification have for education? What is similar and potentially different, between different countries? How can we methodologically study juridification of and in education, in order to contribute important knowledge?

The symposium explore the many faces of juridification. Most importantly, the symposium focuses on the challenges for the stakeholders at both local and state level following new regulations, especially when these are not adequately designed to fit into the educational system. Included in the symposium are papers that provide case studies of 1) law and student rights and 2) the impact on professional discretion, alongside papers that explore 3) the drivers of juridification and 4) the different forms of juridification from a conceptual perspective.

The symposium is of high relevance for the ECER conference, first as juridification so far has received limited attention in educational research, and second as this symposium brings together legal and educational researchers to better understand the complex relation between juridification and education.

Keywords: juridification, differentiation, welfare state. Abstract: This paper is guided by the overriding question: Why juridification of education now – and how? In the context of the welfare state, legal means have traditionally been used to solve social problems with the objective of creating just, equal, and democratic societies. However, the other side of the coin is that there is a risk of overregulation and adverse consequences, which potentially can inhibit democratic progress. The increasingly long arm of the law finds itself entangled with other forms of accountability, creating ever-expanding systems of bureaucratic complexity. The relation between juridification and education is now of high relevance for Nordic educational research (Bergh & Arneback, 2016; Lindgren et al. 2021; Molander et al, 2012; Ottesen & Møller, 2016) and becoming more so in the UK (Murphy, 2022). This paper is an early step towards further collaboration between researchers from different countries. Against the backdrop of successive developments and changes in the welfare state the aim of the paper aims to analyze how and to what extent juridification appears in two different countries: Sweden and United Kingdom are chosen as illustrative cases as these two countries, apart from many similarities, also represent different cultures and traditions as well as legal systems. Theoretically, we draw on Niklas Luhmann’s (1984/1995) theory of functional differentiation, Gunther Teubner’s (1987) problematization of juridification and Claus Offe’s work (1984) on welfare state contradictions. Empirical examples have been chosen that characteristically illustrate how for example content and authority are differentiated through juridification. Our preliminary results indicate that juridification of education is closely interwoven with transformations of the welfare state, including general trends towards marketization and the increased emphasis on legally assured human rights. The paper also explores other sources of juridification, including structural changes to systems of bureaucratic governance and institutional differentiation, as well as the increased pressures on legitimation stemming from civil society. To this, our comparative analysis adds further knowledge on the many faces of juridification, with regard to both similarities and differences between countries. For example, in the UK the spread of a litigation culture seems to be more common than in Sweden and the other Nordic countries, while there are similar concerns on pedagogical and educational consequences, such as how increased use of legal means impacts professional discretion.

Bergh, A. & Arneback, E. (2016). Hur villkorar juridifieringen lärarprofessionens arbete med skolans kunskaper och värden? Utbildning & Demokrati 25(1), 11–31. Lindgren, J., Hult, A., Carlbaum, S., & Segerholm, C. (2021). To see or not to see: Juridification and challenges for teachers in enacting policies on degrading treatment in Sweden. Scandinavian Journal of Educational Research, 65(6), 1052–1064 Luhmann, N. (1984/1995). Social systems. Stanford University Press. Molander, A., Grimen, H. & Eriksen, EO. (2012). Professional discretion and accountability in the welfare state. Journal of Applied Philosophy, 29(3), 214–230. Murphy M. (2022). Taking education to account? The limits of law in institutional and professional practice, Journal of Education Policy, 37(1), 1–16. Offe, C. (1984). Contradictions of the Welfare State (Edited by John Keane). London: Hutchinson Press. Ottesen, E. & Møller, J. (2016). Organisational routines – the interplay of legal standards and professional discretion. European Educational Research Journal, 15(4), 428–446. Teubner, G. (1987). Juridification. Concepts, aspects, limits, solutions. In G. Teubner (Ed.), Juridification of social spheres: A comparative analysis in the areas of labor, corporate, antitrust and social welfare law (pp. 3–48). Walter de Gruyter.

Keywords: juridification, school principals, professionalism. Abstract: Juridification in education is a field of study that analyzes the impact of the law on different areas of social policies and services (Rosén, Arneback & Bergh 2021). For instance, in educational systems, the popularization of legal discourse to regulate issues that had traditionally been negotiated and resolved in a non-judicial way has negatively impacted the ability of educators to make decisions based on their professional discretion (Murphy 2022). In Chile, the creation of the Superintendence of Education a decade ago has contributed to juridification of the school system. This institution is part of the National Quality Assurance System (SAC), whose main function is to enforce compliance with regulations in schools that have official state recognition, whether of public, subsidized, or private administration (Law 20,529). Superintendence provides parents and tutors with a formal procedure to present complaints about situations that occur within schools. Most of these complaints are related to issues of school violence (e.g., harassment, physical or psychological abuse, aggressions through social networks, discrimination), but there are also others that point towards issues such as financial resources management, technical-pedagogical decisions, and health and safety protocols. This paper analyzes the incidence that the Superintendence of Education has had in the work of school principals, especially in relation to their management of the educational service, through an instrumental case study (Yazan 2015) with 8 principals working in schools with different administrations. Results suggest that there is an increasing feeling of stress and overwhelm due to the complexity of procedures to respond to complaints. Parents and tutors wield a new power that weakens the ability to reach agreements with representatives of the school without escalating the problem and issuing a complaint with the Superintendence. Most management processes become over-bureaucratized, which diverts principals’ focus from pedagogical issues. Based on these findings, we analyze the negative implications of juridification for the exercise of the professional discretion of Chilean principals, by incorporating highly bureaucratized processes into their management practices. More broadly, we discuss the intensification of negative effects for school leaders’ professionalism that quality assurance and accountability policies have had in Chile and could have in other systems with similar governance arrangements.

Murphy, Mark. (2022). Taking Education to Account? The Limits of Law in Institutional and Professional Practice. Journal of Education Policy 37(1), 1–16. Rosén, Maria, Emma Arneback, & Bergh. Andreas (2021). A Conceptual Framework for Understanding Juridification of and in Education. Journal of Education Policy 36(6), 822–842. Yazan, Bedrettin (2015). The Qualitative Report Three Approaches to Case Study Methods in Education: Yin, Merriam, and Stake. The Qualitative Report 20(2), 134–152.

Keywords: juridification, school environment, students’ rights. Abstract: Juridification implies increased focus on the law, and such movement has clear implications on society, also in a school setting. Concurrently, individual rights are more in the limelight than previously, at the expense of collective ideals. Also, schools are increasingly scrutinized according to legal standards and justice (Murphy, 2022). Blichner and Molander (2008) distinguish between five dimensions of juridification; for example, the expansion and differentiation of juridification, and as conflict resolution based on the law. Together, these forms of juridification express emphasis on the legal consequences of decisions made at different levels in public administration, also at local level by school authorities and leaders (Hall, 2019; Andenæs & Møller, 2016). The aim of this paper is to study how amendments in the Education Act may be understood as expressions of juridification and governance of the Norwegian school system. Drawing on the theoretical perspectives of Teubner (1988) and Blichner and Molander (2008), as well as previous, empirical research in the Nordics (e.g. Hall & Johansson, 2023; Karseth & Møller, 2020; Rosén et al., 2021), this study investigates recent changes in Norwegian legislation, more closely section 9A of the Education Act (1998), which ensures students’ individual right to a safe and good school environment. Through content analysis of section 9A itself, the paper also includes a selection of key documents leading up to the changes in 2017, such as Grey Paper 2015: 2 (Ministry of Education and Research, 2015). Early findings in the study suggest that this shift has been paramount in challenging school leaders and their professional discretion. For example, we observe a general increase of regulatory procedures, which tests established practices and positions within and across schools (Murphy, 2022). This is supported by recent survey data showing that the demands in this area of the law are experienced as highly stressful to abide by (Baldersheim et al., 2023).

Andenæs, K., & Møller, J. (Eds.) (2016). Retten i skolen: mellom pedagogikk, juss og politikk. Universitetsforlaget. Baldersheim. H. et al. (2023). Rektors handlingsrom: Er vi styrt eller støttet. Report, Agderforskning. Blichner, L.C., & Molander, A. (2008). Mapping juridification. European Law Journal, 14(1), 36–54. Hall, J. B. (2019). Rettslig styring og rettsliggjøring av grunnopplæringen – konsekvenser for skoleledere som juridiske aktører. In R. Jensen et al. (Eds.), Styring og ledelse i grunnopplæringen - spenninger og dynamikker. Cappelen. pp. 39-55. Hall, J. B., & Johansson. L. (2023). Shifting school environment policies: A Deleuzian problematisation of universal rights in Norwegian education. Policy Futures in Education (Open Access). Karseth, B., & Møller, J. (2020). Legal regulation and professional discretion in schools. Scandinavian Journal of Educational Research, 64(2), 195–210. Murphy, M. (2022). Taking education to account? The limits of law in institutional and professional practice. Journal of Education Policy 37(1), 1-16. Rosén, M. et al. (2021). A conceptual framework for understanding juridification of and in education. Journal of Education Policy, 36(6), 822-842. Teubner, G. (1988). The transformation of law in the welfare state. In G. Teubner (Ed.). Dilemmas of law in the welfare state. Walter de Gruyer. pp. 3-10.

Key words: juridification, education, discrimination, Rights of the Child, conceptualization. Abstract: The aim of this paper is to contribute to conceptualization of different forms of juridification in education. The text focuses on the enactment of legislation on discrimination (Discrimination Act 2008:567), degrading treatment (Education Act 2010:800) and the Act on the UN Convention on the Rights of the Child (2018:1197, CRC) in Sweden. The theoretical framework is based on research concerning various aspects of juridification focusing on how legislation is enacted in different contexts and involves different dimensions (Blichner & Molander 2008, Rosen et al 2021). This shows that enactment of legislation can lead to both enabling and disabling processes in the society and in education (cf. Habermas 1987, Honneth 2015, Murphy 2022). To methodologically conceptualize different forms of juridification we work in the following steps: 1) Analysing and interpreting the legal sources. 2) Examining how officials at national school authorities enact political, legal, and pedagogical discourse when discussing the CRC legislation, and which dimensions of juridification that are highlighted. 3) Compare the outcomes with previous research on juridification in relation to discrimination and degrading treatment in schools. The result presents and compare two different forms of juridification in education: Accountability-oriented juridification: Research on discrimination and degrading treatment is a suitable example of this form of juridification (Arneback, 2012; Refors Legge, 2021; Lindgren et al. 2021; Rosén et al 2021). The results shows that the legislation in combination with different forms of accountability leads to a juridical framing in education that challenges pedagogical practices. Elusive juridification: Based on data from an ongoing research project the decision to incorporate the CRC into Swedish law illustrate another form of juridification. The law fills a political symbolic function and is understood as a tool for realizing the commitments in the Convention. However, the data reveals uncertainty on how to implement the law and it is unclear in what way the law should be enacted in pedagogical practises. When comparing accountability-oriented juridification and elusive juridification, differences emerge in how increased legal regulation impacts the education system. The accountability-oriented juridification shows clarity in expectations, but challenges pedagogical practices. Elusive juridification lacks clarity and result in uncertainty on its legal and pedagogical implications. These two examples of juridification highlights the need of navigating different forms of juridification and raises the question on what other forms of juridification that could be identified in the education field.

Arneback, E. (2012). Med kränkningen som måttstock. Om planerade bemötanden av främlingsfientliga uttryck i gymnasieskolan (diss.). Blichner, L.C. & Molander, A. (2008). Mapping juridification. European Law Journal, 14(1), 36–54. Habermas, J. (1987). The Theory of Communicative Action. Lifeworld and System: A Critique of Functionalist Reason. Beacon Press. Honneth, A. (2015). Freedom’s Right - the Social Foundations of Democratic Life. Columbia University Press. Lindgren, J, A. Hult, S. Carlbaum & Segerholm, C. (2021). To See or Not to See: Juridification and Challenges for Teachers in Enacting Policies on Degrading Treatment in Sweden, Scandinavian Journal of Educational Research, 65(6,) 1052–1064. Murphy M. (2022). Taking education to account? The limits of law in institutional and professional practice, Journal of Education Policy, 37(1), 1–16. Rosén, M, E. Arneback & Bergh, A. (2021) A conceptual framework for understanding juridification of and in education, Journal of Education Policy, 36(6), 822–842. Refors Legge, M. (2021) Skolans skyldighet att förhindra kränkande behandling av elever. En rättsvetenskaplig studie (diss.) SFS 2008:567 Diskrimineringslag [Discrimination Act]. SFS 2010:800. Skollag [Education Act]. SFS 2018:1197. Lag om Förenta nationernas konvention om barnets rättigheter [Act on the United Nations Convention on the Rights of the Child].