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GEWISSENSFREIHEIT IN DER SCHULE

Hiroshi Nishihara
Der Staat
Vol. 32, No. 4 (1993), pp. 569-580
Published by: Duncker & Humblot GmbH
Stable URL: http://www.jstor.org/stable/43642548
Page Count: 12
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GEWISSENSFREIHEIT IN DER SCHULE
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Abstract

The author pursues the question whether freedom of conscience (as protected by Article 4 of the Grundgesetz) permits pupils to be inescapably exposed to interference by the public schools in the process of forming their personal conscience. At the outset he describes the tension-laden constitutional relationship between the duty of the state to instruct (Article 7 (1) Grundgesetz), on the one hand, and the right of parents to educate (Article 6 (2) Grundgesetz) as well as the freedom of the child to form its personal conscience (Article 4 (1) Grundgesetz), on the other. He then asks whether the pupils' freedom of conscience is sufficiently protected by the general legal duty of the state schools, as proclaimed by the courts and leading authors, to instruct in a spirit of tolerance. Since, according to the jurisprudence of the Federal Constitutional Court, this duty goes no further than a mere prohibition of ideological indoctrination it is not capable, according to the author, of sufficiently protecting the pupil's freedom to form his or her personal conscience against interference by the schools. In order to achieve the necessary level of protection the freedom to form one's personal conscience should be recognized as a personal right. This could, under certain circumstances, lead to a right of exemption from the duty to attend certain classes.

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