Education for sustainability: do we have a choice? Consultation paper

Hugh Brayne (consultant) and Tracey Varnava (UKCLE)

UKCLE’s Developing global citizens through legal education project is exploring the concept of sustainability literacy within legal education. This consultation paper, developed from the authors’ session at the Learning in Law Annual Conference 2007, explores the issues and puts forward some proposed survey questions, aimed at triggering debate.

In March 2007 the final survey was circulated to key contacts and other stakeholders.

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What is meant by ‘sustainable development’ and other buzzwords?

A modern democratic society has a number of broad aims that could be said to have three strands:

An economy which meets the material aspirations of all its citizens.
Political and social arrangements which secure justice, fairness, and opportunities for a fulfilling life for all.

Preservation/enhancement of the natural environment and the resources which present and future generations need.
Some working definitions:

• sustainable development – “progressing our social, economic and environmental goals at the same time” (Higher Education Partnership for Sustainability, 2003); the classic definition of sustainable development comes from Our common future (the Brundtland Report, 1987): “development which meets the needs of the present without compromising the ability of future generations to meet their own needs”
• global citizenship – a way of conceptualising what is meant when we use of words like ‘society’ and ‘all’; seeking to define responsibilities and benefits at least in terms of members of other societies as well as our own, and arguably towards other species and the natural world itself
• sustainability literacy – the outcome of education for sustainable development (ESD); someone who is sustainability literate has knowledge, ability to act, and ability to influence behaviours of others

Proposed survey questions:

• Do you agree with these working definitions?
• Are there any additional terms you feel need to be defined? Please suggest your own preferred definition of any terms you would like to introduce.

The need for ESD: the story so far

The authors believe there to be overwhelmingly strong evidence that our present patterns of production, trade, consumption, transport and land use are unsustainable. By this we include the following:

• a disproportionate amount of the planet’s and the global economy’s resources are being used to benefit small numbers of people, primarily in developed countries
• competition for resources leads or will lead to exploitation of individuals and of groups, and to conflicts
• increasing concentrations of CO2 and other greenhouse gases are causing and will cause climate change, and this will lead to huge and adverse consequences to the environment, social stability, production of food, services and goods, and the global economy
• significant proportions of the world’s populations do not enjoy democratic freedoms and fundamental human rights defined as human rights in numerous international treaties
• future generations’ economic, social and civil rights are seriously threatened
• ecosystems upon which we rely have collapsed and are likely to suffer further destruction

The authors believe that it is important to seek to understand, and to try to address, these problems, and to do so both personally and professionally.

Proposed survey questions:

• Do you share these concerns?
• Is it essential to feel strongly about these issues in order to engage with ESD?

Official recognition of a need to move from unsustainable to sustainable development has had a long gestation. The unsustainability and unfairness of existing economic and social models has moved, from being largely a concern of environmental NGOs (Friends of the Earth, Greenpeace) and development NGOs (Oxfam, War on Want) during the 1970s and 1980s, to being increasingly recognised in mainstream government and international rhetoric. Key milestones include the Brundtland Report (1987) and the Rio Declaration (1992), and in the UK the Stern Review (2006), followed by the 2006 Queen’s Speech promising a climate change bill.

The UK government published Securing the future: UK sustainable development strategy (Cm 6467) in March 2005. In relation to higher education it stated: “we need to make sustainability literacy a core competency for professional graduates”. The problem we all face – that it is easier to talk about sustainability skills that to deliver them – is illustrated by the government’s failure to follow this guidance and its failure to place sustainability into the core of its own skills strategy. As noted by Forum for the Future (2005), in their guidance on sustainability within the higher education curriculum: “[T]he 21st Century Skills paper does not make any reference to the top political challenge of the 21st century. How can the path of human development shift onto one that is sustainable and ensures that environmental objectives are entwined with social and economic ones?”.

Nevertheless, funding councils in the UK now exhort institutions which they fund to demonstrate sustainability in all their activities – the management of the institution, the design and delivery of the curriculum, and research and outreach activities. For example, HEFCE’s consultation document on Sustainable development in higher education (2005) states: “Because we believe that this is a critical social agenda, we do not think that maintaining the status quo is acceptable”. (In Scotland, see Embedding sustainability into the curriculum of Scotland’s universities and colleges (2006). HEFCW stated as the third of its aims in relation to business and the community that Welsh higher education “serves the Assembly Government’s aims, in terms of education for sustainable development and global citizenship”.)

Pilot work with a small number of institutions by the Higher Education Partnership for the Future led to the publication of guidance, and the Higher Education Academy has published Sustainable development in higher education: current practice and future developments (2005). The guidance from these bodies, essentially, places responsibility for curriculum development into the hands of the discipline, with Academy subject centres acting as catalysts and facilitators. (Regrettably, the Quality Assurance Agency’s framework for higher education as yet does not include any statement on sustainability literacy, and there is no requirement for revised subject benchmarks to address sustainability – an opportunity missed in the 2006 review of the benchmark statement for law.) Progress in some subject areas has been impressive. Along with many other subjects, law belongs, at present, in the ‘keen in principle’ end of the spectrum.

A challenge to conventional conceptualisations of legal education

There are immediate and real obstacles facing those who claim that sustainability should become an outcome of legal education. The first obstacle is faced in all subjects – the profound objection of academics to any attempt to indoctrinate their students with one preferred or ‘correct’ understanding of the world. Remembering the proposed definition of sustainable literacy, is it appropriate to seek to turn graduates into activists?

Proposed survey question:

• Do you feel it is compatible with your role as an academic to seek to produce sustainability literate graduates?

Concerns about putting ESD into the teaching of law

Let us presume that this concern can be overcome, and that all students should understand, act, and cause others to act, when dealing with generic issues of sustainability and global citizenship; for example, that when we have educated them they will wish to, and try to, and get others, and systems, to waste less, to limit carbon emissions, to empower local communities, or support production and trade which is fair to all participants and has an acceptable level of environmental impact.

This merely postpones the next issue, an issue which must then be raised about the nature of law and values of law, in particular the extent to which lawyers are to be trained to be impartial and disinterested. Is it appropriate that law graduates should – if we have succeeded – be activists, passionate about improving the world? If not, can we do more than pay lip service to the ideals of sustainability literacy as defined above?

The authors believe that this topic is so important that law’s traditional impartiality and balance should not automatically outweigh a call for engagement and commitment. While evangelism in a cause can be both offputting and, worse, lead to a loss of objectivity, maintenance of total disinterest would imply that academics should not try to make the world a better place. This would, for lawyers, throw into question work carried out to promote human rights, fair trials, access to justice, maintenance of the rule of law, legislative improvements, pro bono activities, etc.

Law as an entity is underpinned by values – what they are is endlessly debatable, but it is not a value free topic. The practice of law has traditionally been associated with the value of service, compassion and professional obligation to society. We believe it is justified to ask law teachers to try to influence behaviours in defined directions – ie towards sustainability literacy.

Proposed survey question:

• Do you agree that it is legitimate for law teachers to seek to use their teaching of law to develop their students to become sustainability literate?

There are some very interesting issues to explore, amongst law teachers and with students. Here are some of the questions, amongst many others, which will have to be discussed:

• What are the core responsibilities of the lawyer? Should they include a commitment to sustainability?
• Should it be part of codes of professional practice that lawyers seek sustainable solutions to problems?
• Should lawyer be leaders of opinion? Should they seek to influence their clients’ opinions?
• Should legislation be subject to scrutiny for its impact on sustainability? In the same way that human rights compatibility has become a principle of statutory interpretation and judicial decision making, should sustainability be proposed as an underlying principle?
• If law graduates should play this kind of role, what do they need to know?
• Should lawyers be scientifically literate? Should they be able to compare and contrast the principles of finding facts through legal evidence with those of testing hypotheses through examination of scientific data?

Proposed survey questions:

• What do you think are the important questions which a commitment to ESD would open up about the nature of law and legal practice?
• What are the answers you would give to those questions?

How would we approach putting ESD into the curriculum?

Published documents on what is happening – as opposed to policies and frameworks for future activities – suggest that little has actually happened to change practice in higher education within the UK. In some subject areas identification of outcomes and teaching methods appear to be easier to conceptualise – for example in ecology, building technology, or transport management. Planners can learn about the way communities work so as to promote low crime, employment opportunities, energy efficiency and good participation. Engineers can espouse and work towards efficient solutions to problems which result in savings of energy and raw materials. In other subjects there is a less obvious connection between the subject area and sustainability. In those areas – with the interesting exception of English – there are few reports of significant activity on the Academy subject centre sustainability work webpages as yet.

Guidance indicates that ESD will work best if it follows long established principles of what works in education (and legal education) generally. A few pointers include:

• a lot of learning is informal – learning from the teacher as role model is often more powerful than learning from the formal curriculum
• students learn from the values and procedures of the institution
• students should have maximum control of their learning, including where possible the design of the curriculum
• involvement within the community is desirable
• students should learn from each other, including working with students from other disciplines
• students should not focus simply on their own discipline or society
• students should be personally aware of the impact of their own actions on others and on the environment
• students should critically examine all the evidence for assertions made and values stated.

Proposed survey questions:

• Is it important for law students to have knowledge of other disciplines and methods?
• Do you agree that the generic approaches set out above are appropriate for promoting ESD for law students? Can you suggest other important principles?

What are the practical possibilities for putting ESD into the law curriculum?

Beyond these generalities – important though they are – in law the place of sustainability is not immediately apparent. But the authors of this paper firmly believe that law is at the heart of the way our society runs (perhaps less at the heart of the relationships between societies), and that therefore if change is needed for sustainability, law must play a role and those who use law (including law graduates) must be educated for that role.

In this section we merely float ideas, since it is too early to suggest proposals. The key survey question at the end will be to seek to identify a process for generating ideas and for developing best practice.

Content – in some law subjects syllabus developments are possible, such as:

• developing courses in environmental law, energy law, transport law, planning law
• introducing elements into areas such as company law (present or desired responsibilities of companies to non-shareholders or to the environment, for example) or commercial law (encouraging pro-sustainability behaviours through contractual terms or arguing for new implied contractual terms), intellectual property and patenting rights (the right to ownership of seeds or pharmaceuticals developed from biological resources, access to existing drug patents)
• studying topics such as tort or crime in order to include the impact that legal decisions or doctrines have on communities and individuals
• introducing interdisciplinary contexts into law topics, for example economics into commercial law or tort, ecology into land law, impact of crime and punishment on communities
• introducing a comparative or international element into courses, for example comparing labour or health and safety law in the UK with that in trading partners

The nature of law

• examination of law as a neutral or partisan phenomenon
• the role of present or past law in permitting/encouraging unsustainable development in identified areas
• examining rights of/obligations to members of other societies, future generations, other species, the planet
• law as a passive phenomenon or agent for change and justice

Sustainability as part of legal method

• introducing the concept of sustainability impact analysis in some or all law topics
• examining draft legislation for its impact and proposing improvements

Awareness and critique of international standards

• examination of UN and other declarations, and writings, on economic, social and cultural rights

Community involvement

• clinical legal educational methods could be used to help empower community groups to improve their lives, whether through test cases and conventional advice, better understanding of power and decision making processes, or engagement in community issues regardless of legal content

Partnerships with other disciplines and other societies

• projects involving multidisciplinary inputs, for example working with engineering or ecology students on projects involving contractual rights, land use issues, or intellectual property disputes

Values

• discussion could take place in general, or within each area of study, to identify the explicit and assumed values which underpin legal doctrine, and to identify the extent to which these values match the values of students and teachers or the values contained in other documents or statements (political speeches, UN treaties)

Proposed survey questions:

• Are these the appropriate sorts of areas to explore?
• Can you propose additional areas where sustainability could inform and improve the law curriculum?
• Are you aware of any examples of work already taking place, and if so what have you discovered that could be worth sharing?

What are the obstacles?

Research indicates many perceived obstacles, including an already full curriculum, irrelevance of ESD to the subject, student hostility, lack of expertise, contradictions between espoused values and personal/institutional behaviour. The following may also ring bells: “We are not in the habit of thinking about the economy, the sort of society we would like, or the sort of environment we would like to live in at the same time. In higher education institutions, each is taught as different subjects, in different departments.” (Forum for the Future, 2005)

Proposed survey questions:

• What do you consider to be the obstacles to ESD in the law curriculum?
• Do you think they can/should be overcome?

Next steps

The authors believe there are a number of very important stakeholders whose involvement will be crucial, and that they should be involved at an early stage:

Employers of law graduates and practitioners of law. What skills, values and knowledge do they think graduates, and in particular law graduates, need? Do they agree or not that sustainability literacy is important? What do we do if they disagree?

Present students. How important is sustainability to them? What role do they think sustainability literacy will play in their futures? What skills do they need? How well has the curriculum served them in these respects? What changes if any would they seek to content, delivery or learning opportunities? To what extent should they be able to be involved in developments? How important is it to gain understanding and competence within other disciplines?
Potential students. As well as the above questions, how would a greater emphasis on ESD affect the decision to apply to study law?
Law teachers and researchers. All the survey questions posed so far.

Proposed survey questions:

• Are there additional stakeholders we should be talking to, for example lawyers’ clients? Public funders of legal services?
• What other questions should we be putting to stakeholders?

We also believe that within law teaching in the UK, and elsewhere, and within other disciplines, there are developments which can cast light on how we approach the programme, and which can bring fresh ideas and experience, and even guidance on what did and did not work. We will be drawing on developments in other disciplines, and contacting law teachers in other jurisdictions, as well as conducting a literature review.

Proposed survey questions

• What else should we be doing to learn about ESD in law and other subjects, here and elsewhere?
• Do you have any specific ideas about who can help us?

Last Modified: 6 July 2010