Libertad de enseñanza y derecho a la educación (el estado democrático y la educación)
Materias Investigacion::Derecho
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Servicio de Publicaciones de la Universidad de Navarra
Hengsbach, Franz. ""Libertad de ensenñanza y derecho a la educación (el estado democrático y la educación)"". Persona y Derecho, 6 (1979) : 83-107.
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.

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