By Bart Kleine Deters - 30 September 2021
Twice this millennium, world leaders have come together to pledge to erase global poverty and launch an agenda filled with measurable targets to monitor their progress. This is not so much special because of the pledge itself (world leaders tend to make all sorts of lofty pledges when they get together), but rather because they choose to monitor their progress. The Millennium Development Goals – and their successor the Sustainable Development Goals – break down the overall goals in several sub-goals, and attach multiple measurable targets to each of these. The SDG for education, for example, has as its target that by 2030 all boys and girls complete “free, equitable and quality primary and secondary education”, which is measured by the proportion of children in grades 2/3, at the end of primary, and at the end of lower secondary with at least a minimum proficiency in reading and mathematics. Having such goals allows us to track development progress, both over time and in comparison with other countries. It is bad press if you as an education minister manage to have fewer children in school than your predecessor, or in comparison with your (otherwise very comparable) neighbouring country. Having measurable goals thus increases accountability.
How to measure?
In my PhD research (A quantitative approach to the right to education: concept, measurement, and effects, 2021), I applied a similar reasoning to the human right to primary education. Compared to development goals, human rights have the added value of carrying greater moral weight, and of being legally enforceable obligations. Making human rights comparable should thus increase accountability even more! Measuring human rights is easier said than done, however. Do we check if the right is present in the law, or if the intended outcome of the right is achieved? And what about the process by which these outcomes are achieved? In the end I settled on measuring whether the right is present in the law, as codification is a sine qua non for rights protection.
This choice is only the first of many in the measurement process. The next question is about what exactly is understood by the right to primary education. We opt for the minimum core obligations, a set of seven elements that set the minimum floor of what should be the right to education. Other notable dilemma’s include what to do with progressive realisation, how to handle potential violations of the right, as well as the countless small choices you need to make when capturing complex legal language in a limited set of numbers. In the end we designed a right to education index, in which the seven elements are divided into 18 indicators. This index allows us to score a country’s education legislation on a scale from zero to seven, with a higher score denoting a better legal protection of the right to education (see figure).
What did we find?
Using this index, we scored 45 countries in sub-Sahara Africa and Latin America and the Caribbean for a period of 29 years. The good news is that the legal protection of the right to primary education has increased substantially over that period, and did so for all its elements. In 1990, for example, only 28 (of the 45) countries mandated compulsory primary education, compared to 41 in 2018. Only two countries (Ethiopia and Equatorial Guinea) had a worse score in 2018 than they had in 1990. Exhibiting a positive trend is not the same as fulfilling the right to education, however. Only two countries (Honduras and Cameroon) managed to completely fulfil their legal obligations vis-à-vis the right to primary education, and only towards the end of the study period. This is a concerning outcome, given that we are measuring the minimum core obligations, that are considered to be the absolute minimum floor of rights-protection. Going below that essentially means that there is no right to speak of. Keep in mind that I only measured the legislative part of the right, and it is difficult to see how states can meaningfully protect these rights in practice if they cannot even manage to legislate their absolute minimum sufficiently.
This relationship between the right as law and the right as outcome was the final part of my dissertation. We empirically tested if changes in the legal status of the right had an effect on the percentage of children enrolled in primary education, as well as the percentage of children completing said education. We found a delayed effect, where both outcomes improved significantly about seven to nine years after the legal change. Governments committed to improving the right to education are thus in it for the long haul, with progress likely only becoming visible after their tenure is already over.
When you take a helicopter view of the research, there is reason for optimism, but there is also reason for caution. It is positive that the legal protection has improved over the last thirty years, but it is worrying that almost no country has fully legislated the minimum core obligations. On the other hand, meaningful improvement in outcomes is possible as a result of (relatively) small changes in the legal framework. This does take long-term commitment, however. The dataset created by this research allows us to monitor the legal progress, and correlate it with right outcomes. It is thus a useful tool in the continuous effort to hold governments accountable for their promises to improve the wellbeing of their people.
 Committee on Economic, Social, and Cultural Rights, 1999, General Comments 11 and 13.
 Argentina, Barbados, Benin, Botswana, Burkina Faso, Cabo Verde, Cameroon, Central African Republic, Colombia, the Comoros, Costa Rica, Côte d’Ivoire, Cuba, Ecuador, Equatorial Guinea, Eritrea, Eswatini, Ethiopia, Gabon, Ghana, Guinea, Guyana, Honduras, Jamaica, Kenya, Lesotho, Madagascar, Mauritius, Mexico, Mozambique, Namibia, Nicaragua, Niger, Panama, Paraguay, Peru, the Seychelles, Saint Lucia, Saint Vincent and the Grenadines, São Tomé et Principé, South Africa, Togo, Trinidad and Tobago, Uruguay, and Zambia.
 Alston, P. (1987). Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social and Cultural Rights. Human Rights Quarterly, 9, 332
By Marieke Hopman - 21 September 2021
What is law?
A very theoretical part of our current research project on the child’s right to development in unrecognised states, is the study of “norm pluralism” (see also this blog). The idea is that to understand why not all children’s rights are protected in practice, we need to understand the different norms according to which people behave. In other words: we want to understand which ideas about good and bad behavior make people behave the way they do. For example, why do some parents hit their children? Do they think this is a good way of educating them, or do they think it is not good but they simply loose control when overcome with emotion? There are many different types of norms (ideas about good and behavior), and one subcategory is “legal norms”, or “laws”. A law may be a reason why you do or don’t do something. For example, you may not hit your child because you think it is against the law.
To determine what law is in a certain societal context is not always easy. In a Western country like the Netherlands for example, you may think it’s pretty straightforward: you study what is written in lawbooks. But what about things that are said in a courtroom, the interpretation of laws? Is that included? The issue gets even more complicated in societies where there are different legal systems, for example where there is national law, religious (e.g. Shari’a) law and where different tribes also have their own laws (see for example this blog for an example of how this works in the Sahrawi refugee camps).
In the past, many scholars have debated what law is exactly and how you can study it. Recently, I published a journal article about the debate on this subject between two great legal scholars: Hans Kelsen and Eugen Ehrlich. You can read the complete article here. In this blog I will give a short summary.
Ehrlich’s definition of law
Eugen Ehrlich was a jurist and an academic teacher in law. What he saw around him in the law schools of early 20th century, of his students and colleagues, was that their education and research were aimed at what he thought was only a part of the legal field. Law students, according to Ehrlich, studied only state law. But according to Ehrlich there are many more kinds of law in society than only state law!
His theory is as follows. Human beings live together in social groups, or “associations”. In most cases they regulate their behaviour within the group according to certain rules. Of these rules, there are legal rules and non-legal rules. Non legal rules are non-normative rules (language, rules of hygiene) and non-legal normative rules (ethical custom, tact, etiquette). Legal rules are “a certain kind of normative rule of human conduct, that human beings within human associations (in relation to one another) recognize as binding and that generally regulates their conduct.” The state is only one of these associations, but not the only one. Others might for example be the family, the tribe, a corporation.
Therefore, someone who studies law should study the total legal field: all law that we can find in society. This study should be done through a sociological method, by studying society through observation and/or experience. This means that legal scientists should study law of different associations, both written and non-written law, state and non-state law.
Kelsen vs. Ehrlich
In 1915, a young legal scholar named Hans Kelsen published a lengthy critique of Ehrlich’s book. Although Kelsen at the time was a junior researcher in relation to Ehrlich, both in position and in age, his critique is quite ruthless. Kelsen accuses Ehrlich of having written a book without structure, of messing around with his most fundamental conceptions, and of failing to provide a foundation for the sociology of law. His critique is reluctantly answered by Ehrlich in the same journal, resulting in a back-and-forth debate between the two.
In short, Kelsen argues that there are two types of law:
Because of this distinction, it is not possible to study law in society as Ehrlich proposes, because if we study what we observe in society this is the study of something that “is” and not something that should happen (“ought”). So what Ehrlich proposes to study are not proper legal laws.
Other points of critique are that Ehrlich does not present a clear definition of law, that he doesn’t distinguish clearly between legal rules and other social rules, and that he distinguishes between the law and the state (this according to Kelsen is not possible).
Ehrlich reluctantly replies to Kelsen’s critique. In general, Ehrlich feels that throughout his critique, Kelsen imposes his own terminology and then proceeds to qualify that what Ehrlich writes as nonsense. He writes:
“Did anyone ever hear of such a critique? Kelsen confronts my statements with his own, arbitrary – incidentally, scientifically completely worthless (the legal proposition as “stipulated consideration”!) – terminology, and then he claims, that [my statements] are meaningless, because they do not fit his terminology.”
He also disagrees with the is/ought argument, arguing that in his whole book he has only considered laws as ought-rules and never as is-rules of nature. Laws, that are ideas in the minds of people, are in fact perceptible and observable. According to Ehrlich, this should also be the object of legal science.
To summarise, Ehrlich and Kelsen think that they are on opposite sides regarding their answer to the question “what is law?”. Ehrlich on the one hand believes that law can be found through the study of society by observation, conversation and/or experience, while Kelsen believes that law can be found by studying what is written in (state) legal codes.
Kelsen’s definition of law
Kelsen has written several books about the question “what is law?”. According to Kelsen, legal laws are external rules that tell someone how they should behave. These rules are laws if three criteria are met:
According to Kelsen, there are two ways to study the law: either through psychology and sociology, when you study how laws affect the behaviour of people (do they follow the rules or not, and why?), or how jurists study law: studying a system of laws as found in lawbooks, irrespective of how people behave.
I personally believe that if we combine the theories of the two bickering professors, their theories can be reconciled. In fact, I think that to truly understand law, both theories need each other. By combining them, we end up with a more comprehensive framework for the study of law and society.
In short, there are two main gaps in their respective theories, that could be remedied by inserting elements of the other’s theory: Ehrlich’s work lacks clear definitions of concepts such as law, a legal order, a legal proposition, etc. These conceptual definitions can be provided by Kelsen: they are the three criteria for law mentioned above. Kelsen on the other hand needs to also study law through observation and/or experience. How else can you determine whether people believe a certain rule is created by someone who is authorized to create laws? How else can you know if people generally follow the rules that are created by the legislator? In other words: how else do you know what law is?
Therefore, Kelsen’s idea of the basic norm should not be considered “scientifically completely worthless” (as Ehrlich argued), and Kelsen would have to admit that to identify law, legal science will need to have, as Ehrlich argues, “a feeling with reality”. If we combine both theories, science of law can – as Ehrlich argued it should - study the total legal field, all law that we can find in society.