REV - Persona y Derecho - Vol. 06 (1979)
Permanent URI for this collectionhttps://hdl.handle.net/10171/7556
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- Documentación(Servicio de Publicaciones de la Universidad de Navarra, 1979) Revista-Persona-y-Derecho
- Legislación Española (1976-1978)(Servicio de Publicaciones de la Universidad de Navarra, 1979) Revista-Persona-y-Derecho
- Las bases jurídicas de la enseñanza religiosa católica en las escuelas de Polonia (1918-1978)(Servicio de Publicaciones de la Universidad de Navarra, 1979) Pieronek, T. (Tadeusz)
- La enseñanza privada francesa, expresión de una libertad fundamental(Servicio de Publicaciones de la Universidad de Navarra, 1979) Texier, R. (Roger)
- La escuela neutra(Servicio de Publicaciones de la Universidad de Navarra, 1979) Riestra, J.A. (José Antonio)
- Libertad de enseñanza y derecho a la educación (el estado democrático y la educación)(Servicio de Publicaciones de la Universidad de Navarra, 1979) Hengsbach, F. (Franz)The oId dichotomy existing between Determinism and Indeterminism finds tOOay its extreme manifestation in BioIogism and Existentialism. As far as tbe fonner is concerned, bioIogical instincts are, to put it some way, man's fate. According to Existentialism, above all in tbe fonn advocated by Sartre, man is free in tbe face of all tbings except one: freedom itself. In order to fully comprehend tbe meaning of freedom it is very helpfuI to consider the distinction between subjective freedom (freedom of tbe will) and intersubjective or social freedom. The !atter presupposes tbe former. Freedom, of necessity, leads to . a tbeo1ogica1 dimensiono As has been written, eGod has entered into man's history and for this reason, from tbe birtb of Ottist on, tbere no Ionger exists such a tbing as intramundanity: tbere ean no longer be such a tbing as human history which leaves God out». Two concepts tbat correspond to tbe notions of eteaching» and «education» are «schooI» and «formation». Vatiean Council II has stated tbat «true education sets out to form tbe human person witb a view towards bis. ultimate end, and towards tbe good of all societies». One can commit abuses in education, especially since Pedagogy exists in function of a corresponding AntbropoIogy. To tbis respect, ethe thesis that affirms the existence of an education tbat is situated above and beyond any belief, whose pattems were to be validly elaborated and with the force of obligation for all by Liberal Pedagogy, constitutes an ideoIogy of doctrinary Positivism». There are no such things as spiritual vacuums. What we fail to do others will do, only in a different manner. The Council underlines tbe urgency of teaching tbat «parents, to whom the mission and inalienable rlght to educate their children corresponds with preference, must be truly free to opt for the school of their choice». The mission of the State must consist of reconciling the different aims and interests of its citizens, of protecting freedom of consclence, and of insuring the same opportunities for education and formation for all in a regime which sanctions tbe free promotion of educational centers. It is important to distinguish between an obligatory schooI system and tbe obligation of being schooIed. . There exists a profound interdependence between the rights ~f parents, freedom of religion, and the selection of a particular school. Decisively, all socienes exist in and for its members. The right of parents cannot be used as a weapon against tbe Church because believing parents also constitute the Church. One becomes part of tbe State by force, by being bom in it, but tbe same does not hoId in tbe case of tbe Church, whose autbority is free1y accepted and fundamented upon Faitb. The testimony given by parents to tbe Catholic schooI is tbus very beneficia1. The Council states: eThe denial if God or of religion does not constitute, as it did in tbe past, an uncommon and individual fact... This explains the perturbation of many». The main dangers are those tbat lurk in tbe patb of youtb. For this reason, it is necessary tbat parents exercise tbeir rlghts in an energerlc fashion. We need to reflect upon tbe precise teaching of religion and upon the deliberate training in tbe Faitb which serve to create the necessary spiritual climate or atmosphere. We must reject any type of education tbat bears the title of egenerally Christian» because onIy tbe true Ottistian Faitb ean take hold in any particular Creed and in the application which one makes of it in life itself. The Catbolic schooI is -and a1ways will be- what its teachers happen to be.It has been stated that «only when parents who are attentive to their responsabilities concerning educational matters know and exercise those constitutional rigbts that assist them the influence of the State can be held within the limits of the supervisory function which the Constitution provides». The danger that the educative rigbts of parents be constrained comes primarily from reforms in the Law regulating families, in those cases where there may exist discrepancies between parents and offspring, in such a way that authorities foreign to the family have to intervene. It also comes from the very field of education. It is convenient to lmderline the fact that the rights of parents concerning education is, as far as ir deals with a constitutional right, an individual and in sorne way a col1ective right as wel1. Citizens must carry out more initiatives in support of free educational and formative activities. The German Fundamental Law guarantees -in its Article 7, IV- the foundation of private schools and the subsequent right for their support. The so-called «subsidiary» schools must be valued on an equal fOOrlng with State-run schools, but in no way be identified with the latter. Furthermore, this comparison must in no way mean that private schools have to back up automatically any modifications that are introduced in the official schools. On the other hand, it is both just and very important that those schools having a free charter be able to offer, with their tides, the same professional opportunities as those offered by State schools. It has been stated that «given that the school canoot accomplish its spedfic mission without the contiriued assistance of parents, and that furthermore the educative responsability of the latter does not cease with the entrance of their children in school, we must recognize their right to intervene in those matters that affect the school, as wel1 as their sense of responsability regarding such matters». In this , light, it is necessary that parents be able to freely associate themselves with regard to school matters. This parental cooperation must focus primarily upon textbooks, and it would also be hoped that they would be more attentive to any changes in the schools system. The State monopoly on schooling not only has not prevented the penetration of the ideals of the New Left into the school system, but has in fact facilitated this penetration in part. Parents and educators should rise up against present-day Neomarxist manipulations, because «freedom operating in a vacuum, and which stems from itself and tends towards its own fulfillment, is a false freedom at the merey of all foreign forces, the majority of which are harrnful». Only by casting a backward glance at their philosophical and theological roots teaching and education can continue to be truly human and Christian.
- Unterrichtsfreiheit und das recht auf erziehung (demokratischer staat und erziehung)(Servicio de Publicaciones de la Universidad de Navarra, 1979) Hengsbach, F. (Franz)
- Los derechos humanos en las constituciones españolas de 1808 a 1931(Servicio de Publicaciones de la Universidad de Navarra, 1979) Llano, E. (Estela)
- Libertad de enseñanza en materia religiosa y su plasmación legal(Servicio de Publicaciones de la Universidad de Navarra, 1979) González-del-Valle, J.M. (José M.)Freedom of education regarding q:ligious matters is not achieved simply by making provisions in study plans for the possibility of taking up an optional course dedicated to the study of this or that particular religion. A neutral type of religious formation, in which greater or Iesser doses of Catholicism, Protestantism or Atheism are to be mingled together, is simply not feasibIe. Religious liberty rests upon freedom of education as a prerequisite. This freedom exists when any citizen -or, in the case of a person who is unable to fend for himself,his parents or guardians-- is given a variety of options in educational matters which enable him to choose that educational center which best suits bis necessities or purposes. Religious liberty in education is onIy one more element -although perhaps the most relevant one- contained within the notion of freedom ef education. Most legal texts of the highest order -constitutional charters of many States and numerous international agreements- usually name the right to freedom of education along with other fundamental rights, a special mention usually being given to religious Iiberty in education. However, it must be borne in mind that in numerous occasions of basic rights legal texts in many aspects are merely declarations of principIes, and in practice these principies may indeed neverbe fully applied. There are two main factors which make freedom of education possible in an effective manner: a) freedom garanted in the creation of educational centers which are allowed the possibility of organizing themselves in accordance to particular lines not imposed from without and which are to be respected by the Law, and b) equality with regard to the financlng of all educational centers, public or prívate. The topic of the «confessionality» of education refers to the doctrinal content of non-religious subject maters. This content is to be found in a large number of subjects, particulary in the branch of Humanities. The systematic study of the doctrinal content of a particular religion is another matter altogether which bears no relation to what is to be understood by the terro confessionality of education. This conceptdoes not contradict the principIe of religious liberty. On the contrary, the guarantee of this liberty is to be found in the existence of pluralism in schooIing which permits one to freely choose whatever type of education best corresponds to his own convictions in religious matters.
- Spunti comparativi in materia di liberta´d insegnamento(Servicio de Publicaciones de la Universidad de Navarra, 1979) Ciprotti, P. (Pio)In any study . of the topic of the freedom to create private (non State-run) schools, we must take two aspects into account: the rigbt which entities and individuals have lO undertake educative tasks, and the intetest which . those who receive schooling may have in there being a plurality of educational centers of dif~ ferent types, so that they may thus be able lO · choose that center which best corte~ ponds to their preferences. The fust aspect, which must be considered within the global context of freedom of expression, has not yet been fully dea1t with in international agreements. (si:e, however, ArticIe 13.4 of the International Agreement on Economic, Social and . Cultural Rights adopted by the General Assembly of the United Nations on December 16th, 1966). Nonetheless, we are dealing here with a right which is recognized in many constitutions and within the framework of the educational laws of many States, although it is a1so true that others may deny bis basic right. With regard lO the second aspect, various international · agreements have recognized the right of parents lO choose the type of training and schooling they prefer for their children. This right of election is at times expressed by explicitly mentioning moral, religious -er, in any case, ideological- training which must respond to the parents' convictions. Some constitutions have made this point particularly cIear. On the other hand, in order for this right of election to be truly real, it is not sufficient that it be legally recognized. There are, in fact, many collateral and derived problems -which in spite of their apparently secondary nature are no less gravewhich have to be considered and solved, if we are to hope for the survival, in practice, of the possibility of election, and to hope for the avoidance of limitations from outside forces. Thus, for example, the State must insure that the enrolling of a child in a particular school does not imply sensibly different tuition costs than jf he had been enrolled in another school. The State must a1so insure that studies undertaken in different schools (as long as said schools are appropriate) as well as diplomas granted have the same value before the Law, in the case of those countries in which school tides have legal validity. The State must a1so see to it that those schools which possess a particular religious or ideologicaI orientation be allowed to sever its ties with any professor whose activities ron counter to the aims and purposes of the school. Some States have fully examined these problerns and have tried to solve thero in a manner that does not contravene long-standing traditions or exigencies. Religious bodies also have the same right as secular institutions and individuals to create and maintaÍn educational centers. Sorne countries even uphold, in their legislative code, that religious institutions are the most ideally suited lO carry out educative tasks. Sorne States go as far as to not only permit but also opeuly encourage religious bodies to carry out educational tasks in schools and indeed in the course of their ordinary activities.
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