Taking education to account? The limits of law in institutional and professional practice

Abstract

Recent years have seen the spread of a litigation culture in the UK education sector, with members of the public increasingly seeking recourse to the law to appeal, complain, or achieve compensation. The increasing tendency of people to resort to litigation suggests that recourse to the law is seen as a more immediate form of taking education services to account. While in theory an effective accountability tool, this development has unfortunately produced some less than desirable consequences in educational institutions, most notably the avoidance of risk. This paper argues that such consequences need to be understood as a reflection of the limits placed on legal regulation, once it encounters the already highly regulated world of educational institutions. To flesh out this argument, this paper examines these limits as a set of consequences relating to the following: increasing juridification; the intersection of law and mechanisms of accountability, judgement and professional discretion; and the relation between risk and trust. The argument draws on the ‘law in context’ literature, as well as recent debates over the pathologies of legal freedom.

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