Human rights is a field which has its importance associated with it ever since and moreover there is a need to get a broader overview of transnational aspect of human rights as in the position of human rights worldwide in different countries, the laws protecting the fundamental rights and duties of human beings. Further we would go on to discover how a common line of education is to be imparted so as to give a transnational perspective, i.e an international outlook and mutual recognition to the aspect of human rights.
As said by Nelson Mandela, the great anti-apartheid revolutionary who fought for equal human rights for the blacks in Africa, in respect of human rights:
“To deny people their human rights is to challenge their very humanity” .
Transnational law was a term brought up by Jessup, for he believed that international law was not enough to portray this relation. He had basically challenged the doctrinal and conceptual boundaries of public as well as private international law to suggest that another concept must be initiated to capture the myriad normative and transactional relations beyond national borders. This would help to emphasise on the dichotomies underlying and informing international law while adopting a wider and more adequate view of human activities. Jessup writes that he shall use the term “Transnational law” to include all law which regulates actions that transcend national frontiers by any means, inclusive of public and private international laws and other rules which do not wholly fit into such standard categories. For that matter any assessment of current developments in the main fields of a law school curriculum was merely termed as the outside influences of international, transnational and comparative law.
Transnational perspective as well as the national views of all the nations the conceptual thinking about education and university reform, the need arises to bring together these distinct, nationalized or segregated discourses. Thus, focusing on legal theory from the perspective of the legal education, the training of lawyers becomes a crucial inquiry into the democratic accessibility of university studies, and into questions of power and exclusion, of identity and finally the process of training of elites, by the transnational legal education.
POSSIBILITY OF A TRANSNATIONAL LEGAL EDUCATION
The viability of this research with respect to human rights:-
Essentially, human rights education is a lifelong process that builds up knowledge and skills, along with attitudes and behaviours, to promote as well as to uphold the human rights to safeguard the interests of people. The World Programme for Human Rights Education, a global initiative of the United Nation which had been working since 2005 to integrate human rights education in all sectors. This is a really helpful global initiative, which would definitely help in getting a broader overview about the transnational legal educational aspect of human rights law.
The term “human rights education” is often used in a broader sense, to include education for democratic citizenship as well as education for mutual respect and understanding, which are all based on human rights standards, which are internationally agreed. All these three areas are interconnected and are essential within the educational systems in order to prepare the youth to be active, responsible as well as caring participants in their communities and also at the national and global levels, for a better tomorrow.
To understand the basic concept of human rights, we’ll look over to the actual meaning of rights. Right is basically the legally guaranteed power to realise an interest. Holmes has defined rights as,
“A permission to exercise certain natural powers and upon certain conditions to obtain protection, restitution or compensation by the aid of public force.”
However there persists another view according to which Human rights are not dependant on the state. Jackson J. in West Virginia State board V. Barnette has observed that, “The very purpose of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of the majority, to take away it from their monopoly and to establish them as legal principles to be applied by the courts.”
Basically, human rights education is defined as proper education, training and information aimed at building a culture of human rights, globally. A well-structured and comprehensive education system in human rights not only does provides the knowledge about human rights and the mechanisms that protect them, but also it does imparts the skills needed to promote, defend as well as to apply human rights in day to day life, so as to safeguard the interests. Salmon goes on to define human right as,
“An interest which the law will recognise and protect, for which is a legal duty, disregard of which is a legal wrong”.
Further the education for democratic citizenship, more or less focuses on the educational practices as well as the activities designed to help young people and adults to play an active part in democratic life and exercise their rights along with their responsibilities in the society, and thus being a socially and legally responsible citizen. Education for mutual respect and understanding highlights self-respect, respect for others, and the improvement of relationships between people of differing cultural traditions.
The foundation documents of human rights law are the Universal Declaration of Human Rights, 1948. The main aspect of human rights education across the globe which is the UDHR which is a declaration adopted by the UN General Assembly, directly after the experience of the Second World War. The objective was to define the meaning of the words fundamental freedoms and "human rights".
POINTS OF COMMONALITY AMONGST HUMAN RIGHTS EDUCATION ACROSS THE GLOBE:
Basically there has been a point of commonality amongst all the Human rights education pattern followed across the globe. Since previous few decades, human rights education has been a great part of international discussions of educational reforms and policy decisions , national textbook reform , as well as the work of non-governmental organizations (NGOs). Although, different countries have their own pattern of teaching ever module according to the set laws in their countries, their practices and difference in the procedural and substantive laws, still there has been a common human rights education pattern seen mostly. While scholars and practitioners have noted the rise in educational strategies as part of larger human rights efforts and the emergence of human rights education on its own as a field of scholarship and practice , there appear to be diverse perspectives on what exactly HRE is and does.
Another point of similarity amongst all the nations with regard to the human rights across all the nations is that apart from their local laws, all the people are free to approach the United Nations Human Rights Council for any kind of violation of the human rights. Thus this aspect can also be seen from the perspective of education. The Human Rights Council is basically an inter-governmental body under the United Nations system made up of 47 States as its members, responsible for the promotion and protection of all the human rights around the globe. The UNHRC also addresses thematic human rights issues such as right of freedom of expression, freedom of belief and religion, freedom of association and assembly, rigths of women, LGBT rights, as well as the rights of racial and other ethnic minorities across the globe.
As said by Ban Ki-moon, the UN Secretary-General
“All victims of human rights abuses should be able to look to the Human Rights Council as a forum and a springboard for action.”
All the universities across nations need to develop a system so as to educate the students and make them capable enough to understand all of their human rights which they are entitled to and fight for them in case of a breach by going to the appropriate forum. By comparing and evaluating the human rights education of every nation and thereafter evaluate them, this is how transnational education helps by providing a well-structured and comprehensive education system in human rights throughout the globe.
HUMAN RIGHTS EDUCATION: THE INDIAN PERSPECTIVE
In India, essentially all the human rights are guaranteed to the people by way of the Constitution, which is the supreme law of India. There is no other exclusive law governing the human rights as a whole as such, though the constitutional is harmoniously construed with the ICCPR. Art. 21 of the Indian Constitution in letter and spirit totally follows the Art. 7 of the International Covenant on Civil and Political Rights (ICCPR), which in turn is a part of the United Nation’s UDHR. Since the rights and duties run parallel to each other it is pertinent that fundamental duties have been added to the pages of the constitution, making the citizens realize their obligations to the society at large and the legal rights that they possess for a dignified existence.
Protection to life and personal liberty is a constitutional guarantee under article 21 of the constitution of India. It goes without saying that the architects of our constitution were profoundly influenced by “Magnacarta”. The landmark case of A.K. Gopalan v. State of Madras highlights the importance of the protection of personal liberty. The legal remedies provided in the same were enacted in the Indian constitution as Articles 20, 21 and 22 along with the writ jurisdictions. Justice Bhagwati, in another case of Maneka Gandhi v. Union of India in the Supreme Court of India, stated that,
“So far as the right to personal liberty is concerned, it is ensured by providing that no one shall be deprived of personal liberty except according to procedure prescribed by law.”
Right to free legal aid, an essential component of human right. – Supreme Court in some landmark judgements have pronounced that right to free legal aid applies to all citizens and not only to prisoners (Hussainara Khatoon v. State of Bihar, M.H. Hoscot v. State of Maharashtra, Khatri v. State of Bihar, and Sukdas v. Union Territory of Arunachal Pradesh ). Therefore, state should help the poor, needy and helpless to maintain social order as a matter protection of equal human rights.
Thus the protection and preservation of the rights of the individual and his free access to justice is taken care of. Thus these are indispensable constituents of the march of a civilized society. In this way the educational aspect of human rights is imparted through various law universities in India, and the course curriculum is designed in such a way to cover all aspects.
THE NEED OF A TRANSNATIONAL HUMAN RIGHTS EDUCATION
Basically for the Human rights educational purpose, all the universities imparting human rights education across nations need to develop a system so as to educate the students and make them capable enough to know all of their Human rights which they are entitled under the UDHR, and to fight for them, if at all they are violated at any point of time. They must be able to approach either the local bodies or directly United Nations Human Rights Council (UNHRC) for the violation of the human rights. This could be made possible across the globe only through transnational legal education of the same.
Thus, another common aspect of human rights education across the globe which is the Universal Declaration of Human Rights (UDHR) which is a declaration adopted by the UN General Assembly, directly after the experience of the Second World War. It represents the first ever global expression of rights to which all human beings are inherently entitled to claim. The full text of which is published by the United Nations on its website. This declaration was explicitly adopted to define the meaning of the words “fundamental freedoms" and "human rights" which appeared in the United Nations Charter, and is binding on all member states.
A special rapporteur on freedom of expression was passed by the Human Rights Council which gave to sharp criticism from western countries as well as human rights NGOs.
The objective was to report instances of abuse of the right of freedom of expression constitutes an act of racial or religious discrimination, with reference to Articles 19(3) and 20 of the International Covenant on Civil and Political Rights (ICCPR), and general comment no. 15 of the Committee on the Elimination of All Forms of Racial Discrimination , which in turn stipulates that the prohibition of the dissemination of all kinds of ideas based upon racial superiority complied with the freedom expression and speech.
This is an agreed fact that all nations are certainly putting up efforts and doing their best to develop human rights education, but there is a need of “Global legal portability” and a world integrated platform to address the grievances relating to human rights violation. This can be done through international seminars, conferences, student exchange programmes and also through satellite courses and other such mediums. This is the main objective of transnational legal education. By this method the faculty and law students must be encouraged to participate in more and more international discussions, seminars and conferences to exchange views and opinions. Also practicing advocates and sitting judges could be made a part of such programmes. Thus in this way the transnational legal education system could be put to a great use to develop a broad transnational understanding that we aimed at.
CULTURAL RELATIVISM AS AN INDICATOR OF DIFFERENCES IN THE PERCEPTION OF HUMAN RIGHTS
Whenever human rights education is talked about, we firstly need to understand the difference in approach to the human rights across the nations in a general sense.. Universal human rights leave considerable space for national, regional, cultural particularity and other forms of diversity and relativity to be discussed
Different civilizations or societies have various conceptions of human well-being. Hence, they have a different attitude toward human rights issues that we consider today to be matters of human rights, equivocally. It is mainly the idea of inalienable rights that one has simply because one is a human being that was missing not only in traditional Asian, African, Islamic, but in traditional Western societies as well. In the pre-modern world, both western and non-western countries alike, the duty of rulers to take care of the common good did not arose from the entitlements and human right but from the natural law, divine commandment , tradition and contingent political arrangements.
Essentially the human rights ideas and practices arose from the social, economic, as well as the political transformations of modernity. However, these days, atleast the moral equality of all human beings is strongly endorsed by leading comprehensive doctrines in all regions of the world.
For example: There exist lots of cultural differences between India and the UK, like for the case of LGBT (Lesbians Gays Bisexual and Transgender) rights which is not as much recognised in India as in the US or UK.. Unlike in western religions, homosexuality is rarely discussed in the Indian context. Thus the perception of the human rights in this context definitely differs.
“The rights of homosexual people are human rights, and human rights are for everyone.”
Basically, homosexuality is rarely discussed in the Indian context. Homosexuality is considered to be against the Sikh code of conduct, simply as it is not mentioned in Sikh scripture. Homosexuality has been a taboo subject in Hinduism and the majority of the religious leaders opposed the idea of religious same-sex marriage in a 2004 survey. Whereas in US and UK the approach regarding it has been comparatively liberal and they have been given their equal human rights according to that cultural relativism.
Thus cultural relativism acts as an indicator to explain the transnational legal education system. While talking about the human rights education, the difference in approach to the human rights across the nations in a general sense is to be understood by the help of the cultural and economic differences amongst all the nations, by whatever minimal variations.
COMPARATIVE STUDY: COMMON LAW AND CIVIL LAW LEGAL EDUCATION SYSTEMS
Common Law:
Common law refers to a body of principles of law that fundamentally works on a case-by-case basis. The judicial law-making process is incremental and has been described as being like “the sluggish movement of the glacier rather than the catastrophic charge of the avalanche”. As Professor Goodhart said, the most striking feature of the common law is its public law, it being "… primarily a method of administering justice" .
Common law says that, a right or obligation can only be created by the judge and a sentence of the court. The view that says that statutes contain rights and obligations, is not acquainted to the common law tradition. In common law countries like the UK, Ireland, Canada and India, a law degree is an undergraduate degree. In others, like the United States, a law degree is a post-graduate degree, demanding both an undergraduate degree and completion of a Law School Admission Test (LSAT) that tests logical and verbal reasoning skills.
Academia lessons in the countries like UK and India are exceedingly interactive. They usually use the “Socratic method” of teaching, where the Lecturer asks students a series of questions and prompts responses (as well as pointing out discrepancies in the replies or the logic of the student responses) so as to get the student to think critically. Also, in these countries, case laws rather than codes are the key reference material for law students.
Civil law:
The tutoring of law students in the civil law institutions is through an undergraduate degree. The key reference materials are commentaries to these codes. On day one, students begin at Article 1 of the code and the professor brings them through the code systematically. Rather than engaging in an interactive method of teaching, professors in the civil law lecture to a class that is usually very large. Very early on, graduates must choose whether to become a government lawyer, public prosecutor, advocate, notary, judge or scholar. Lawyers do not often change careers. To become an advocate the law graduate must undergo a period of apprenticeship in the office of an experienced lawyer. To become a notary a law graduate must also serve an apprenticeship in a notary’s office and take a national exam.
COMPARISON OF UK, INDIA AND USA EDUCATION SYSTEM
United Kingdom:
The UK has approved a multi-path way into the legal services market. Basically, it can be termed as a train route with many junctions and crossovers. There are three main lines to that terminus.
Firstly, the aspirants take “A levels” to enter university and then take a law degree which is then followed by a 1 year Legal Practice Course (LPC) and a two-year Training Contract (TC), including a Professional Skills Course (PSC), leading to admission. This takes about six years without break and excluding “A levels”. After a further two years of legal experience the student can enrol on the LPC, take the PSC and be admitted. This course allows for broken journeys and even untimely halts. The legal education system in UK therefore, lies within the polycentric model of training as do a number of other common law countries. But many do not. Let’s look at an exception here.
“There is no categorical regulation of the law degree by the profession apart from the qualifying aspects of the degree and, of course, review by the Quality Assurance Agency for Higher Education which examines all degree courses including law.”
United States:
In the US the American Bar Association (hereinafter referred to as ABA) is granted the power to recognise and approve law schools and regulate them by the US Department of Education. This means that the students with a Juris Doctor (JD) degree can sit in the bar examination of any state in the USA. Since it is not possible to approve every law school at per the standards some states confer admissibility on students to take the state’s bar examination.
US’s ABA-recognized law schools meet quite demanding standards in delivering legal education. Most full-time JD courses takes 3 years, also the NCBE has developed the Uniform Bar Examination which is intended to test all the requirements for admission, but can be supplemented with additional tests if individual states so determine. The NCBE also controls the MPRE which is the professional responsibility examination that every applicant must pass. Unlike in the U.K., there is not a requirement to pursue further courses and apprenticeships beyond law school in the US.
The ABA may appear to exercise substantial power over law schools but the academy, as in the UK, is usually free to organize the content of legal education in its own way. This is a vital distinction between UK and US legal education.
India:
India, the other BRIC country is under consideration here. India has performed some dynamic experimentations with the establishment of institutions such as the National Law School of India University in Bangalore (NLSIU) and private Jindal Global Law School (JGLS). The Advocates Act, 1961 is the regulatory law for lawyers and the same has given the Bar Council of India (BCI) the power to lay down values for legal education and to recognize colleges. The regulation of legal education is jointly done by BCI and the University Grants Commission (UGC). There are 2 routes to obtain a recognized degree in India, i.e either to do LLB after a degree in another subject or to take a joint BBA/BA-LLB course of 5 years.
BCI exercises substantial regulation over the subjects and the degree which resulted in the forming of National Knowledge Commission (NKC) that suggested reducing the impact of BCI in order to improve teaching quality and research. The National Law School’s in India also insists on internships alike UK for a better experience of the practice of law. Thus, the UDHR had set up minimum human right norms and then the maximum norms would further depend on individual countries to lift up the quality of human rights through education and other aspects like clinical legal aid and following other practical methods like learning through field visits and through legal internships.