Beyond soft law: On the hybridity of law in European Higher Education (1972-2023)

• In Event: Policy Change and Reform in Higher Education: Historical, Regional, and Legal Perspectives

Proposal

With the European Commission’s presentation of a blueprint for a European degree in May 2024, the legal dimension of European higher education integration has gained unprecedented prominence. Through “a new type of qualification awarded either jointly by several universities from different countries or possibly by a European legal entity established by such universities” (European Commission, 2024), the European Union (EU) is seeking to institutionalize a novel legal instrument across European universities – a striking proposal considering the subsidiarity principle, which stipulates that only the member states can legislate in matters of education.
The higher education literature has explored how, subsidiarity principle notwithstanding, European influence over higher education policy has expanded over the past decades, particularly since the Lisbon Strategy (2000) introduced the Open Method of Coordination (OMC) (Corbett, 2012). A form of soft law, the OMC draws on non-binding objectives and guidelines to prompt change in social policy (Trubek & Trubek, 2005). This stands in contrast to the Community Method characterized by a high degree of legalization as stipulated by hard law instruments including binding treaties. While the role of soft law has been highlighted in the higher education scholarship as a relevant instrument for the construction of a European dimension to higher education – the most frequently explored example being the Bologna Process – we still do not know the exact extent to which soft law processes are at play in the higher education domain. Moreover, while the EU cannot rule over education systems, a range of hard laws indirectly concern higher education, for instance when higher education is connected with foreign policy measures as is the case, for instance, mobility. As such, higher education is a policy area marked by legal hybridity involving soft and hard legal instruments – the full range of which has not yet been captured in the scholarship.
This presentation seeks to address this research gap by compiling and analyzing the entire population (n=887) of European hard (n=365) and soft (n=522) law instruments concerning the field of higher education issued between 1972 and 2023. First, we provide a brief overview of the Europeanization of higher education policy. The second part discusses the concepts of hard and soft law in the context of world politics more generally and, more specifically, in the context of the EU. In the third section, we present our dataset and methods. Based on our analysis, we establish that over the past decades there has been a) an exponential increase of hard and soft legal mechanisms in European higher education; b) a gradual diversification of types of legal instruments; and c) a widening and deepening of European capacity to legislate in the field of European higher education by funding programs and cooperation agreements (hard law) and national reform programs (soft law). We discuss the implications of these results for legal studies and the scholarship in higher education, as well as how the hybridity of these legal instruments has contributed extensively to the construction of a European dimension of higher education. We conclude by offering avenues for future research.

Authors

• Marcelo Marques, University of Luxembourg

• Anna Prisca Lohse, Technische Universität Berlin