Grégor Puppinck, Ph.D., the director of the European Centre for Law and Justice (ECLJ), held a conference at the European Court of Human Rights on the rights of families over education and religion. Puppinck reminded its members that the Universal Declaration of Human Rights extols the importance of subsidiarity and affirms the natural rights of parents to raise and educate their children, guaranteeing this right against the stranglehold of the State. Puppinck delivered a slightly longer version of this address on April 28, 2017. This text has been lightly edited.
The Rights of Parents Against the State in the Fields of Religion and Education
Education and religion are closely connected, as the Church has been the teacher of Europe. Hundreds of thousands of members of the clergy have dedicated their lives to teaching and instruction. In Europe, knowledge was preserved and cultivated within monasteries during the Middle Ages, and the classic heritage was transmitted thanks to the religious tradition in the Renaissance period. The great minds of modernity - Erasmus, Descartes, Pascal, Spinoza or Kant - are the heirs of the religious faith, culture, and tradition.
The secularisation of teaching is a recent and incomplete phenomenon. It is only with the emergence of the atheistic and rationalist school of thought that education and religion were presented as incompatible. The pretension that rationalism could explain everything negated the epistemological legitimacy of religions.
Contemporary Europe inherited this conflict, which intensified with the fight of secular school against religious teaching, as evidenced by the dramas of the first half of the twentieth century, marked by the prohibition and expulsion of teaching religious congregations by the French Republic in 1901 and the prohibition of religious institutions by the Soviet and Nazi regimes. The first half of the twentieth century was marked by the State's desire to have a stranglehold on the youth through schools, to impose its ideology.
At the end of the Second World War, European states managed to escape this conflict by guaranteeing freedom of conscience and religion, and by respecting the rights of parents concerning the religious teaching of their children.
Against a statist and totalitarian system that imposes itself upon the people top-down, European human rights documents emerged from a cultural context shaped, on the one hand, by a positive vision of family, intermediate bodies, and of religions and, on the other hand, a negative vision of the State, statism, and atheistic ideologies. This organic and natural view of society stressed subsidiarity. The aim was to rebuild society from the its roots, “bottom-up,” basing it upon the dignity of persons and the importance of natural families.
Family is then recognised as the fundamental and natural unit of society. Thus, the 1948 Universal Declaration of Human Rights declares that “parents have a prior right to choose the kind of education that shall be given to their children.” This priority is the expression of the precedence and superiority of the rights of parents over those of society; it is exercised against the State and all other social groups. The role of the State is subsidiary; it must not absorb or substitute itself for the families, but on the contrary recognize and help them in accomplishing their own responsibilities, and, supplement the failings of parents when children are deprived of proper teaching.
The rights of parents are called “natural,” “elementary,” “fundamental,” “innate,” or “priority” rights.
The preparatory works of the 1950 European Convention on Human Rights and of its First Protocol clearly show that the first aim of their authors was less to proclaim a right to education than to guarantee the prior right of parents against the State. The rights of parents are called “natural,” “elementary,” “fundamental,” “innate,” or “priority” rights. This right, which was initially considered to be the third paragraph of Article 12 of the Convention, was not titled the “right to education,” but the “prior right of parents to choose the kind of education to be given to their children.” It was one of the “family liberties,” alongside “the right to marry and to found a family” and the right to “freedom from arbitrary interference with the family.” As numerous drafters of the convention underlined, it was aimed at protecting families “against the danger of nationalization, absorption, monopolization, requisitioning of young people by the State.”
In its report of December 4, 1951, the Committee on Legal and Administrative Questions of the Assembly insisted on the fact that “the rights to which parents can and should be entitled … extend not only to the education but also to the teaching given to their children.” The Rapporteur of this Committee said precisely that this text must hence guarantee “the fundamental rights of all parents to have their children brought up and taught in accordance with the dictates of their consciences, whatever these may be, and it is not for the State to judge.”
Based on these natural and liberal principles, the Court developed the right to instruction, particularly for ethnic and religious minorities, underlying the importance, inter alia, of pluralism and tolerance.
The present situation
Between 1950 and today, the context has deeply changed. The society of 1950 was mostly homogeneous; that is not the case anymore. We have seen the decline of the institution of the family, and of Christian religious practice. Selfishness has displaced the importance of families.
Today, Western society has a largely negative view of religion and an increasingly destructured experience of families. The disaggregation of the “subsidiary society” strengthens the State, which then appears as the ultimate factor of cohesion. However, minority and immigrant populations seem exempt from such trends and constitute vibrant communities. But they do so distinctly from the rest of society; they do not integrate into the postmodern “liquid society” described by Zygmunt Bauman. Traditional communities of all varieties, while a minority, are more isolated but also more visible, like solid lumps floating in the “liquid society” of individual relativism. They face increasing hostility.
What is the answer?
When social cohesion is weakened, school becomes a major political issue again. The State now must not merely assure the pre-existing cohesion of society but now it must struggle against its disaggregation. Once again this is a “top-down” social process, consisting in imposing integration upon all aspects of society, notably through forced modernization, which implies secularisation.
In some of its judgments, the jurisprudence of the European Court of Human Rights took that path by enhancing the power of the State against the free exercise of religion inside teaching institutions. The court hence admits that the role of the State is not limited to ensuring the quality of teaching and the health of children, but that it can reach to the expressions of religious convictions and even into the contents of moral convictions of its students. This was first seen in the acceptance of the prohibition of wearing religious symbols within teaching institutions.
It was even more spectacular in the recent Osmanoglu and Kocabaş v. Switzerland case of January 10, 2017, in which it poses the principle - which will have far-reaching consequences - that “the interest of the children in a full education enabling a successful social integration according to local customs and mores takes precedence over the wish of the parents to see their daughters exempted from the mixed swimming lessons” in accordance with their religious convictions.
The court believes that violating the rights of the parents is a method of “protecting foreign pupils from any phenomenon of social exclusion” (§ 64), namely protecting the children from their parents, because they are foreigners.
Liberal philosophers, such as Friedrich von Hayek or Chantal Delsol, think that subsidiarity is the guarantee of a sane liberalism.
This judgment confirms the logic of the 2006 Konrad v. Germany case, in which the court had validated the prohibition of homeschooling in the name of “integration of minorities in the society” and of the “general interest of society to avoid the rising of parallel societies.”
As regards moral teaching, the phenomenon is the same. To my knowledge, the court has ruled in favour of the State in every case filed by parents complaining about the content of sex-education and all classes teaching morality from a non-confessional, non-religious perspective.
There is a contradiction here with the educational rights guaranteed to historical minorities, such as the Roma, as well as with those of families who put their children in private schools reserved to pupils of a specific religion, or even more of a specific denomination.
Certain definite, limited, and extreme social circumstances can justify empowering the State to bolster the cohesion of society. But one must be aware that this reinforcement leads to statism and the risk of violating the rights of families.
As noted by Juris Rudevskis, an excellent jurist of this house, between statism and totalitarianism there is but a difference of degree, while the difference between a totalitarian state and a subsidiary state is one of nature. Liberal philosophers, such as Friedrich von Hayek or Chantal Delsol, think that subsidiarity is the guarantee of a sane liberalism. This liberalism is based on placing trust in the person and expressing distrust toward the State. The opposite situation, of trust in the State and distrust towards part of the population, is pernicious. It is, unfortunately, also typical.
We shall remember the warning addressed by Mrs. Luise Rehling, a German member of the Parliamentary Assembly of the Council of Europe, during the discussion on the drafting on the rights of parents:
The rights of parents concerning the upbringing and education of their children are of a fundamental nature, whereas those of the State are subsidiary. … If we wish strenuously to oppose everything that smacks of collectivism, as we have said here more than once, we must foster and increase individual responsibility. Furthermore, one of the most urgent tasks of this assembly is to contend against totalitarianism. I shall venture to say that, though totalitarianism obviously exists under dictatorial governments, it may also develop in democracies. We should offer the strongest possible opposition to any such development.
There is a limit society must not pass if it wishes to remain liberal. As you will have understood, I personally believe that the aforementioned judgments have already been stretched dangerously close to this limit, in favour of a uniform conception of culture.
I believe that social cohesion and peace can be obtained, not by force, but by respecting the natural laws of human nature, in keeping a model based on a subsidiarity.
In this regard, I believe it is essential to respect the natural rights of parents and communities to create denominational schools, to pass on their cherished moral virtues, and to give their children a sense of belonging to a living community.
I also believe it is fundamental to ensure, in the State schooling system, the respect of the epistemological legitimacy of religion, namely the fact that science does not answer the question of God's existence.
I will conclude with a lesson coming straight from the Middle Ages, when society was deeply religious. St. Thomas Aquinas debated those who would remove a Jewish child from his parents so the child could be baptised and integrated into the society. He firmly opposed that possibility by reasserting the priority of the natural rights of parents, explaining that public freedoms essentially consist in guaranteeing the natural laws of society.
I thank you for your attention.
This speech, which was originally delivered on April 28, 2017, was published by the ECLJ and is reprinted with permission.
(Photo credit: Stephan Hochhaus. This photo has been cropped. CC BY 2.0.)