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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Primary Education

Pablo Meix Cereceda

Subject(s):
Primary education — Group rights

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law. General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Definition of Primary Education

1.  Disambiguation

1.  ‘Primary education’ is one of the expressions most frequently used by constitutions around the world when they refer to school education of children (‘institutional’ education, Richter 33), but it is certainly not the only one. It seems therefore necessary to elaborate on the commonality and differences with other terms that are often used in constitutional law.

(a)  ‘Education’, ‘Instruction’ and ‘Teaching’

2.  Although ‘education’ is likely the most widespread term used in English when referring to the instilment of values and knowledge that adults and society devote to achieve in young people, not all official translations of constitutions use this word. In particular, countries where the official predominant language derives from Latin often use the word ‘instruction’ instead of, or alongside, ‘education’. This is particularly, though not only, the case of the Constitution of the French Republic: October 27, 1946, Preamble (Fr), still in force despite the enactment of the Constitution of the French Republic: 4 October 1958 (Fr), and of the Constitution of the Italian Republic: December 27, 1947 (as Amended to 20 April 2012) Main Text, Part I Title II Ethical and Social Rights and Duties, Art. 33 (It). A translation by the Brazilian Chamber of Deputies of Brazil’s Federal Constitution, in turn, alternates ‘education’ and ‘teaching’ as translations of the Portuguese ‘ensino’ (Constitution of the Federative Republic of Brazil: 5 October 1988 (as Amended to 18 February 2016) Main Text, Title VIII Chapter III Section I Education, Art. 210 (Braz)).

3.  All three terms refer to the same object in positive constitutions, that is, the right to receive educational services in a publicly overseen system, but there has been some legal debate on the differences between ‘education’ on one hand and ‘instruction’ and ‘teaching’ on the other. As international human rights law has been a significant influence for many constitutions in the domain of educational rights, the Campbell and Cosans v the United Kingdom judgment (25 February 1982) of the European Court of Human Rights (ECtHR) should be mentioned. In it, the ECtHR referred to ‘education of children’ as ‘the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young’ and in the same sentence considered that ‘teaching or instruction refers in particular to the transmission of knowledge and to intellectual development’ (para. 33). This distinction has been traditional in German constitutional law, where the education system must above all carry out ‘Bildung’ (or ‘instruction’), whereas ‘Erziehung’ (or ‘upbringing’) corresponds primarily to parents or other adults who are in charge of the child (Basic Law of the Federal Republic of Germany: 23 May 1949 (as Amended to 23 December 2014), Main Text, Title I Fundamental Rights, Art. 6 para. 2 (Ger)), although the aim of instilling certain values by means of the education system is not unknown to the Constitutions of certain states (Constitution of Sachsen-Anhalt: 16 July 1992 (as Amended to December 5, 2014), Main Text, Part II, Title II Institutional Guarantees, Art. 27 para. 1 (Ger)). Similarly, the instruction/education dichotomy has occasionally been linked in the field of public law to the distinction between two different ‘functions’ that are, in turn, attributed to the education system: ‘qualification’ and ‘socialization’ (Akkermans, 69). From a sociological perspective, however, Martín Criado (46) discourages the consideration of these ‘effects’ of school education as ‘functions’ of the education system, arguing that the complexity of the interests intertwined in education makes it both difficult and undesirable to identify qualification and socialization as the sole or even principal purposes of the school system. In fact, in the judgment mentioned above, the ECtHR accepted that ‘it appears to the Court somewhat artificial to attempt to separate off matters relating to internal administration as if all such matters fell outside the scope of Article 2’ (of the first Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)) and accordingly ruled that corporal punishment in British schools must be considered part of the education process (though not of ‘instruction’ as such) and therefore could be objected to by parents (para. 33).

(b)  ‘Primary’, ‘Elementary’ and ‘Basic’ Education

4.  Some constitutions place ‘primary education’ as the first stage of the education system (Constitution of the Federal Republic of Nigeria: 29 May 1999, Main Text, Chapter II Fundamental Objectives and Guiding Principles of State Policy, Art. 18 para. 3 (Nigeria); Constitution of the Republic of Turkey: 7 November 1982 (as Amended to 12 September 2010) Part II, Chapter III Social and economic rights and duties. Art. 42 (Turk); Constitution of the Italian Republic: 27 December 1947 (as Amended to 20 April 2012), Main Text, Title II Ethical and Social Rights and Duties, Art. 34 para. 2 (It)). However, there is another group of constitutions where primary education is often considered as a second stage right after ‘initial’ education or ‘pre-school’ education. The terms ‘initial’ and ‘primary education’ are mentioned in the Political Constitution of Peru: 29 December 1993 (as Amended to 9 March 2015), Main Text, Title I Person and Society, Art. 17 (Peru) and the Constitution of the Dominican Republic: 13 June 2015, Main Text, Title II Chapter I Section II, On Economic and Social Rights, Art 63 para. 3 (Dom Rep). ‘Pre-school’ and ‘primary’ are used in the Political Constitution of the United Mexican States: 5 February 1917 (as Amended to 27 January 2016), Main Text, Title I Chapter I Fundamental Rights, Art. 3 (Mex)). Therefore, the term ‘primary education’ can generally be considered as a reference to a clearly specified stage of an institutional education system.

5.  ‘Elementary education’ or ‘elementary school’ can generally be considered as a synonym of ‘primary education’, and as well as the former it is sometimes used to refer to the second stage of the education system (right after ‘early-childhood’ education). The term ‘elementary’ was prominently used in Art. 26 of the Universal Declaration of Human Rights (1948) (‘UDHR’) proclaimed on 10 December 1948, although there was significant debate as to the convenience of including it in the Declaration. Indeed, the travaux préparatoires show that at least the Belgian delegation felt that the term ‘elementary’ … connoted a limitation, and therefore the delegation preferred ‘the word ‘primary’, which had a broader meaning and was in conformity with the terminology in use in French-speaking countries’ (Schabas 2687). Moreover, according to the travaux préparatoires, the UNESCO representative Pierre Lebar thought that ‘The word ‘fundamental’ contained the more recent and much broader concept of adult education and represented great progress in the thinking of the past educators over several decades’ and he thus ‘strongly favoured ‘fundamental’ to replace ‘elementary’’ (Schabas 1848). ‘Elementary’ can also be found in some states of the US (the Constitution of California: 7 May 1879, Main Text, Art. 9 Education, § 6, para. 2 (US) refers to ‘kindergarten schools, elementary schools …’) or as a translation of the term ‘ensino fundamental’ in the Constitution of the Federative Republic of Brazil: 5 October 1988 (as Amended to 18 February 2016) Main Text, Title III Chapter IV The Municipalities, Art. 30 and Title VIII Chapter III Section I Education, Art. 208 (Braz).

6.  On the other hand, ‘basic education’ can have different meanings and it is subject to interpretation whether it refers to a specific stage of education or has a broader scope. It is used by, eg, the Spanish Constitution: 29 December 1978 (as Amended to 27 September 2011) Title I, Chapter II, Section 1 On fundamental rights and public freedoms, Art. 27 para. 4 (Spain); the Constitution of the Russian Federation: 12 December 1993 (as Amended to 30 December 2008) Main Text, Chapter 2 Rights and Freedoms of Man and Citizen, Art. 43, para. 4 (Russ); the Constitution of Uganda: 8 October 1995 (as Amended to 25 September 2005), Main Text, Chapter IV Protection and promotion of fundamental and other human rights and freedoms, Art. 34, para. 2 (Uganda); the Constitution of the Republic of South Africa: 18 December 1996 (as Amended to 1 February 2013) Chapter II Bill of Rights, Art. 29, para 1 (S Afr); or the Political Constitution of Colombia: 20 July 1991 (as Amended to 31 July 2012) Title II, Chapter 2 On Social, Economic and Cultural Rights, Art. 67 (Colom).

7.  Some of them, like the Colombian, consider ‘basic education’ to have a specific duration of nine years. In other cases, like the Spanish, ‘basic education’ used to be applied to a specific stage but it no longer does, as the Education Act no. 1/1990 (Spain) replaced the former ‘basic’ stage of eight years by a six-year primary plus a six-year compulsory secondary education system. According to UNESCO in its operational definition of ‘basic education’, the concept currently covers primary education but also what UNESCO calls ‘junior secondary education’, that is, the first years of secondary education. A good example of this is the case of Thailand, where Section 16 of the National Education Act of B.E. 2542 (1999) (Thai) provides that ‘Formal education is divided into two levels: basic education and higher education’ and that ‘basic education is that provided for the twelve years before higher education’ (higher education).

2.  Primary Education and Decentralization

8.  The governance of education in decentralized countries is commonly affected by the existence of states, regions, etc within a larger constitutional jurisdiction (decentralization). This is especially true in the US, where the US Constitution does not mention educational rights and the federal authorities interfered little with states’ policies on education until the 1965 Elementary and Secondary Education Act (ESEA) (PL 89-10, USC 20, 6301) was passed under President Johnson. Another federal state like Argentina also defers the regulation of education to the provincias: Constitution of the Argentine Nation: 22 August 1994, Main Text, First Part Chapter One Declarations, Rights and Guarantees, Art. 5 (Arg): ‘Each province shall pass a Constitution … that ensures the administration of justice, the municipal organization and primary education’. In Germany, the Basic Law: 23 May 1949 (as Amended to 23 December 2014), Main Text, Title I Fundamental Rights, Art. 7 (Ger)) includes a few fundamental rights concerning education, but the rest is referred to the state constitutions, like the Constitution of Rheinland-Pfalz: 18 May 1947 (as Amended on 1 October 2001), Main Text, Part One Chapter III School, Education, and Culture, Arts 27-40 (Ger), that devotes fourteen articles to this matter.

9.  Other jurisdictions have designed a system of concurrent policy-making. This is the case, eg, of Mexico, which has a long Art. 3 in the Political Constitution of the United Mexican States: 5 February 1917 (as Amended to 27 January 2016), Main Text, Title I Chapter I Fundamental Rights, Art. 3 (Mex) which is the basis for the organization of state education systems, as the Constitution of the State of Jalisco acknowledges (8 July 1917 (as Amended to 19 December 2015) Main Text, Title Three, Art. 15 para. IV (Mex)): ‘the state education system shall base on the principles mentioned in Art. 3 of the Political Constitution of the United Mexican States …’. Additionally, the Constitution of the Russian Federation, 12 December 1993 (as Amended to 30 December 2008) Main Text, Chapter 3 The Federal Structure, Art. 72, para. 1 et seq (Russ) has opted for a more general and open phrasing: ‘the joint jurisdiction of the Russian Federation and the subjects of the Russian Federation includes: … et seq general issues of upbringing, education, science, culture, physical culture and sports.’

3.  Core Elements of ‘Primary Education’ across Positive Constitutional Law

10.  From a comparative constitutional perspective, the notion of ‘primary education’ is composed of at least the following elements. However, this notion being closely connected to the meaning of the right to education, it is recommended to consult that entry for further analysis.

(a)  Establishment of a School System by Public Authorities

11.  Many constitutions direct public authorities to establish a public school system. In a few cases, particularly in the US, constitutions refer to municipalities or ‘towns’, as does the Constitution of the State of Maine (as arranged to 2013) (Article VIII, Part First, Education) Section 1 (US). More often is to be found a responsibility of ‘the state’ (Constitution of the Republic of South Africa: 18 December 1996 (as Amended to 1 February 2013) Chapter II Bill of Rights, Art. 29) (S Afr), or even ‘the Republic’ (Constitution of the Italian Republic: 27 December 1947 (as Amended to 20 April 2012), Main Text, Part I Title II Ethical and Social Rights and Duties, Art. 33) (It), or else both municipalities and the state, as is the case of the Political Constitution of the United Mexican States: 5 February 1917 (as Amended to 27 January 2016), Main Text, Title I Chapter I Fundamental Rights, Art. 3 (Mex) and of the Constitution of the German state of Rheinland-Pfalz: 18 May 1947 (as Amended to 23 April 2016) Main Text, Part I, Title III School, Education and Culture Art. 27.2 (Ger).

(b)  Sufficiency

12.  Such a system is often required to be ‘sufficient’ and ‘pluralistic’. This is the case of the Constitution of the Kingdom of the Netherlands: 24 August 1815 (as Amended to 29 April 2015), Main Text, Chapter 1 Fundamental Rights, Art. 23 para. 3 (Neth), and of the Constitution of Sachsen-Anhalt: 16 July 1992 (as Amended to 5 December 2014), Main Text, Part II, Title II Institutional Guarantees, Art. 26 para. 1 (Ger).

13.  This relationship between sufficiency and pluralism is in line with special rapporteur Katarina Tomaševski’s pioneer characterization of education (the so-called 4A-scheme), and in particular with the notion of ‘availability’ of primary education. According to this author, the concept of availability refers to both education provided by public schools and to publicly funded and publicly supervised private institutions. To put it in her own words, ‘international human rights law obliges it (the state) to be the investor of last resort so as to ensure that primary schools are available for all school-age children’ (Tomaševski 17-18). Thus, many constitutions that expressly mention pluralism also refer to the possibility of private school education and to freedom of teaching. The Dutch constitution is probably one of the most pluralistic in this respect: Constitution of the Kingdom of the Netherlands: 24 August 1815 (as Amended to 9 April 2015) Main Text, Chapter 1 Fundamental Rights, Art. 23, paras 3, 6 and 7 (Neth).

(c)  Equal Access

14.  Equality (equality) in access to (primary) education is probably the most widespread principle of fundamental rights concerning education. Several jurisdictions link primary education to equal access of individuals to such institutions––to educational institutions of any stage in the Human Rights Act 1998, 9 November 1998 (UK) and the First Protocol to the ECHR, Art. 2 (Eur); and specifically to primary education in the Constitution of the Republic of Turkey: 7 November 1982 (as Amended to 12 September 2010) Part II, Chapter III Social and economic rights and duties, Art. 42 (Turk)). Moreover, some constitutions even use the term ‘universal’ access (Constitution of the Federal Republic of Nigeria: 29 May 1999, Main Text, Chapter II Fundamental Objectives and Guiding Principles of State Policy, Art. 18 para. 3 (Nigeria)). However, the right to access primary education is in some cases specifically attributed to ‘the child’ (Human Rights Act 2004 of the Australian Capital Territory, Art. 27A para. 1 (Austl)) or to ‘youngsters without consideration for their origin or economic situation’ (Constitution of Baden-Württemberg: 11 November 1953 (as Amended to 1 December 2015), Main Text, Part I Title III Education and Teaching Art 11.1 (Ger) and constitution of Sachsen-Anhalt: 16 July 1992 (as Amended to 23 April 2016) Main Text, Part II Title I Art 25 (Ger)), but it should be acknowledged that this stress on young people might be considered as a certain restriction for adults, especially when compared to other constitutions that expressly mention ‘adult basic education’ (Constitution of the Republic of South Africa: 18 December 1996 (as Amended to 1 February 2013) Chapter II Bill of Rights, Art. 29, para 1 (S Afr)) or ‘equal access for children and adults’, as does the 1946 Constitution of France: 27 October 1946, Preamble, para. 13 (Fr).

15.  It can be added that equal access to primary education has been the object of highly significant judicial decisions reviewing both law and administrative practice. One of the US Supreme Court’s most celebrated rulings is the Brown v Board of Education of Topeka Case (US), 347 US 483 (1954) (US), where the Court abolished racial segregation in American elementary and high schools. More recently, the ECtHR rulings in D.H. and others v the Czech Republic (Grand Chamber) (13 November 2007), Sampanis v Greece (5 September 2008) and Orsus and others v Croatia (Grand Chamber, 16 March 2010) have achieved an important turn in the way indirect discrimination may be proved (direct and indirect discrimination). In this row of cases, the ECtHR accepted the use of statistics for proving indirect discrimination against Roma children who had been schooled in separate facilities, often following a more basic curriculum or an educational process designed for children with intellectual disabilities.

(d)  Provision on a Free-of-Charge Basis

16.  Many constitutions, moreover, mandate that primary education shall be provided free of charge. This is the case of, eg, the Constitution of the Islamic Republic of Iran: 24 October 1979 (as Amended to 28 July 1989) Main Text, Chapter III The rights of the people, Art. 30 (Iran); the Constitution of India: 26 November 1949 (as Amended to 9 November 2015), Main Text, Part III Fundamental Rights, Art. 21A (India); or the Constitution of the Italian Republic: 27 December 1947 (as Amended to 20 April 2012), Main Text, Part I Title II Ethical and Social Rights and Duties, Art. 34 (It). Also, in some parts of Germany free-of-charge education has been considered to include even learning materials such as text-books: Constitution of Hessen: 1 December 1946 (as Amended to 29 April 2011) Main Text, Part I Title V Upbringing, education, protection of monuments, sport, Art. 59 (Ger).

(e)  Compulsory Attendance

17.  Last, primary education is often considered not only as a right but also as one of citizens’ duties, eg, in the Constitution of the Republic of Turkey: 7 November 1982 (as Amended to 12 September 2010) Part II, Chapter Three, II: ‘the right and duty of education’ (Turk). Hence, school attendance is declared compulsory for children (for nine years in the Constitution of Greece: 11 June 1975 (as Amended to 27 May 2008) Main Text, Part II Individual and social rights, Art. 16 para. 3 (Greece); more simply in the Constitution of the Bolivarian Republic of Venezuela: 20 December 1999 (as Amended to 19 February 2009) Main Text, Title III Chapter VI On cultural and educational rights, Art. 103 (Venez)) and, interestingly, placed under the responsibility of parents or other adults who have ‘boys and girls under their protection’ (Constitution of Japan: 3 November 1946, Main Text, Chapter III Rights and duties of the people, Art. 26 para. 2, (Japan)).

B.  Historical Evolution of the Concept of Primary Education in Comparative Constitutional Perspective

18.  The notion of ‘education’ can be found as early as 1682 in the Frame of Government of Pennsylvania: 5 May 1682, Preface (US), that, under the influence of William Penn (author of the Preface), created ‘a committee of manners’ education, and arts, that all wicked and scandalous living may be prevented, and that youth may be successively trained up in virtue and useful knowledge and arts’ (Frame of Government of Pennsylvania: 5 May 1682, Main Text (US)).

19.  A hundred years later, the first Constitution of Pennsylvania: 28 September 1776, Main Text §44 (US) did not use the term ‘education’ but instead mandated the legislature to create a public system of instruction covering both the establishment of one or more schools in each county and ‘such salaries to the masters paid by the public, as may enable them to instruct youth at low prices.’ Other states soon followed, using similar or different terms: the Constitution of Maryland: November 11, 1776, Main Text, § XXXIV (US) already mentioned ‘public teachers’.

20.  Fifteen years after the Pennsylvania and Maryland statements, the first European constitution to consider education was the French Constitution: 3 and 4 September 1791 Main Text, Title I Fundamental Provisions Guaranteed by the Constitution (Fr). Instruction was intended to be ‘common to all citizens’ and––for the first time in a constitution––provided free of charge.

21.  The notion of ‘compulsory’ education appeared nearly one century later in England and France. It was in ‘an Act to provide for public Elementary Education in England and Wales’ (Elementary Education Act: 9 August 1870, §74 (Eng and Wales)), that school boards were for the first time allowed to issue bylaws ‘requiring the parents of children of such age, not less than five years nor more than thirteen years, as may be fixed by the byelaws, to cause such children (unless there is some reasonable excuse) to attend school’. In France, the ‘Act of 28 March 1882 on primary compulsory education’ (Fr), known as the ‘Jules Ferry Act’, showed great sensitivity in addressing the matter of compulsory instruction: ‘Primary instruction is compulsory for children of the two sexes of age 6 to 13; it may be provided in institutions of primary or secondary instruction, in public or free (‘libres’) schools, or else in the family by the father of the family himself or by any other person that he chooses’.

22.  However, in the 20th century there was still an intense debate as to the convenience of enshrining compulsory primary education as part of international human rights. In fact, during the drafting process of the right to education in the UDHR, the idea of an individual duty to attend elementary school was far more difficult to include than the ‘free-of-charge’ notion, that was paradoxically discussed only to decide whether it should not be limited to elementary education (the Turkish and the Greek delegations insisted on this idea on several occasions (Schabas 2090, 2683 and 2688), while the Australian delegation held that ‘compulsory education was not on the same footing as the right to education’ (Schabas 876) and René Cassin himself expressed his opinion that ‘as some States had not adopted the system of compulsory primary education, it would be unsuitable to introduce this idea in the Article’ (Schabas 879).

23.  Nonetheless, the link between ‘primary’, ‘free’ and ‘compulsory’ education was defended by the delegation of Panama as essential to the UDHR (Schabas 1840) and indeed it could be found in the original version of the Constitution of the Republic of Panama, March 1946, Main Text, Title III Chapter IV National Culture, Art. 78 (Pan). As is known, Art. 26 of the UDHR eventually included the three core elements and thus validated a concept that has subsequently been taken up in international human rights treaties and gained widespread acceptance in comparative constitutional law. To name but a few jurisdictions: Constitution of India: 26 November 1949, (as Amended to 9 November 2015), Main Text, Part III Fundamental Rights, Art. 21A (India); Belgian Constitution: 7 February 1831 (as Amended to 6 January 2014), Main Text, Title II On Belgians and their rights, Art. 24 § 3 (Belg); Constitution of the Republic of Turkey: 7 November 1982 (as Amended to 12 September 2010) Part II, Chapter III Social and economic rights and duties, Art. 42 (Turk); Political Constitution of the United Mexican States: 5 February 1917 (as Amended to 27 January 2016), Main Text, Title I Chapter I Fundamental Rights, Art. 3 para. 1 (Mex)).

C.  The Present Role of the Concept of Primary Education

24.  When conducting a comparative analysis of constitutions currently in force, different aims arise in various and sometimes intertwined forms. Among these, the following should be highlighted.

1.  Preservation of Democracy

25.  Among what might be described as ‘strictly political’ aims of education, preserving (or even strengthening) democracy is probably the most significant.

26.  A very complete exploration of this relationship can be found in the Political Constitution of the United Mexican States: 6 February 1917 (as Amended to 27 January 2016), Main Text, Title I Chapter I Fundamental Rights, Art. 3 (Mex)): ‘The aim of education shall be …: a) a democratic one, considering democracy not only as a legal structure and a political regime, but also as a system of life founded on the continuous economical, social and cultural improvement of the people …’.

27.  On the other hand, some US state constitutions have chosen a simpler, yet certainly beautiful phrasing as, eg, does the Texas Constitution: 15 February 1876 (as Amended to 3 November 2015), Art. 7 Education §1 (US):

A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.

28.  Or, with a very similar wording, the Constitution of California: 7 May 1879, Main Text, Art. 9 Education, § 1 (US).

2.  Preservation of National Identity

29.  This aim can be found in constitutions of states that have been built around a particularly strong idea of nation.

30.  As is known, today’s Greece led a War of Independence against the Ottoman Empire from 1821 to 1832. Greek constitutions have, hence, favoured a strong conception of national identity, as shows the current Constitution of Greece: 11 June 1975 (as Amended to 27 May 2008), Main Text, Part II Individual and Social Rights, Art. 16 para. 2 (Greece). It is, indeed, one of the most directly phrased examples throughout the planet: ‘Education … shall aim at the moral, intellectual, professional and physical training of Greeks, the development of national and religious consciousness and at their formation as free and responsible citizens.’

31.  Interestingly, Turkey is another case where national identity strongly impacts the constitutional concept of education, even excluding the possibility of providing instruction in a different language and showing a certain degree of mistrust toward freedom of teaching: Constitution of the Republic of Turkey: 7 November 1982 (as Amended to 12 September 2010) Part II, Chapter III Social and economic rights and duties, Art. 42 (Turk):

… Education shall be conducted along the lines of the principles and reforms of Atatürk, based on contemporary scientific and educational principles, under the supervision and control of the State. Educational institutions contravening these principles shall not be established. … The freedom of education does not relieve the individual from loyalty to the Constitution. … No language other than Turkish shall be taught as a mother tongue to Turkish citizens at any institution of education.

32.  Last, it is relevant to mention again the Constitution of the United Mexican States: 5 February 1917 (as Amended to 27 January 2016), Main Text, Title I Chapter I Fundamental Rights, Art. 3 (Mex)). Indeed, it provides an interesting example and shows that the nation is nonetheless considered as part of a larger community:

The aim of education shall be …: b) a national one, whereas––free of hostilities and exclusivism––it shall seek the comprehension of our problems, the use of our resources, the defence of our political independence, the assurance of our economic independence and the continuity and growth of our culture.

3.  Eradication of Illiteracy

33.  A very different approach can be found in other constitutions that primarily focus on people’s needs. Among these, the eradication of illiteracy is one of the most significant aims. Examples of this topic can be found in the Constitution of the Federal Republic of Nigeria: May 29, 1999, Main Text, Chapter II Fundamental Objectives and Guiding Principles of State Policy, Art. 18 para. 3 (Nigeria); in the Political Constitution of Colombia: July 20, 1991 (as Amended to July 31, 2012) Title II, Chapter 2 On Social, Economic and Cultural Rights, Art. 68 (Colom) or in the Bolivian Political Constitution of the State: February 7, 2009, Main Text, Chapter VI Education, Interculturalism and Cultural Rights, Art. 84 (Bol): ‘The State and society have the duty to eradicate illiteracy through programs compatible with the cultural and linguistic reality of the population’.

4.  Access to Culture and Development of Personality

34.  Another set of constitutions also attach importance to individual development––but emphasize a more open kind of goals. Interestingly, such constitutions have been drafted in Spanish language. Among them, the Bolivian Political Constitution of the State: 7 February 2009, Main Text, Chapter VI Education, Interculturalism and Cultural Rights, Art. 78 para. II (Bol) is particularly vivid: ‘Education shall be intracultural, intercultural and plurilingual throughout the whole education system.’ Also, the Political Constitution of the United Mexican States: 5 February 1917 (as Amended to 27 January 2016), Main Text, Title I Chapter I Fundamental Rights, Art. 3 (Mex) alludes to ‘a better human community life (convivencia) and to ‘constant improvement and maximum academic achievement of pupils’. The Political Constitution of Colombia: 20 July 1991 (as Amended to 31 July 2012) Title II, Chapter 2 On Social, Economic and Cultural Rights, Art. 67 (Colom), in turn, mentions ‘access to knowledge, science, technique and to all other goods and values of culture … to a better moral, intellectual and physical upbringing of pupils’.

35.  Lastly should be mentioned the ambitious goal enshrined in the Spanish Constitution: 29 December 1978 (as Amended to 27 September 2011) Title I, Chapter II, Section 1 On fundamental rights and public freedoms, Art. 27 para. 2 (Spain): ‘Education shall aim for the full development of human personality in the respect of democratic principles of community life (convivencia) and of fundamental rights and liberties.’ Almost surprisingly, this phrasing is very similar to the one in Japan’s Basic Act on Education (Act No. 120 of 22 December 2006), Art. 1 (Japan): ‘Education shall aim for the full development of personality and strive to nurture the citizens, sound in mind and body, who are imbued with the qualities necessary for those who form a peaceful and democratic state and society.’

D.  Assessment of the Concept of Primary Education and Its Impact on the Political and Legal Order

36.  As has been mentioned above, the ECtHR came up with a useful definition of education as ‘the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young’ (judgment in the case of Campbell and Cosans v the United Kingdom, 25 February 1982, para. 33). If we accept this idea, it is easy to understand that governments would find education to be a very powerful instrument to instil certain ideas or values in children and young people. This power can of course be used with a legitimate aim, but also with a purpose of indoctrination. How we tend consider a specific aim might depend on the viewer’s own preconceptions, interests and goals. Nevertheless, it is also generally true that most of the aims mentioned across constitutions and education laws would rarely be phrased in malicious or offensive terms, and therefore it can be difficult to identify when public authorities may be overreaching and trying to impose a hidden agenda. This could be applied to groups (labour unions), schools (private and public) and even to individuals (teachers, parents and pupils). Education is an indispensable pillar of societies and, as such, a myriad of interests try to exercise their influence on it. Consequently, such risks cannot be completely ruled out.

37.  However, from a legal point of view, education historically fulfilled a remarkable set of constitutional functions in the interest of public good. For example, the current Constitution of Maryland: 8 May 1867 (as Amended to 6 November 2012) was amended on 8 November 1960 to include ‘the diffusion of knowledge and virtue’ as the aim that the Legislature ‘ought to encourage’. Depending on how the notion of ‘virtue’ is understood, the provision could serve very different purposes: either to instil a specific moral mindset in children or to help them develop their own skills.

38.  In other regions of the planet, the constitutional notion of education seeks to play a more ‘social’ role, such as developing equality in various forms: eradication of illiteracy but also equal opportunities of access to higher education (Constitution of the Federal Republic of Nigeria: 29 May 1999, Main Text, Chapter II Fundamental Objectives and Guiding Principles of State Policy, Art. 18 para. 1 (Nigeria); and the Norwegian Constitution: 17 May 1814 (as Amended on March 2016), Main Text, Part E Human Rights, Art. 109 (Nor)). In addition, it cannot be denied that mandatory education implies a great advantage in terms of the rights of children, for instance by precluding child labour or, more generally, by raising human rights awareness (in this respect, human rights education can play a crucial role, as Muntarbhorn has brilliantly pointed out).

39.  Moreover, education can fulfil an important task in protecting cultural, religious and linguistic diversity, but it can also serve the opposite purpose (cultural diversity; protection of linguistic minorities). Examples of cultural and linguistic protection can be found in the Political Constitution of the United Mexican States: 5 February 1917 (as Amended to 27 January 2016), Main Text, Title I Chapter I Fundamental Rights, Art. 2 (Mex), according to which the authorities, for the protection of indigenous communities(rights of indigenous communities), must ‘guarantee and increase schooling rates as well as bilingual and intercultural education, literacy, the completion of basic education …’ as well as in the Political Constitution of Peru: 29 December 1993 (as Amended to 9 March 2015), Main Text, Title I Person and Society, Art. 17 (Peru). Special consideration deserves the stress placed on egalitarian and indigenous aspects by the Bolivian Political Constitution of the State: 7 February 2009, Main Text, Chapter VI Education, Interculturalism and Cultural Rights, Art. 80 para. II (Bol): ‘Education shall contribute to strengthening . . . the identity and cultural development of the members of each indigenous aboriginal peasant people and nation, and cultural understanding and enrichment within the State’; and, in Art. 84, ‘State and society have the obligation to eradicate illiteracy through programs that shall be in conformity with the cultural and linguistic characteristics of the population.’ Turkey, on the other hand, expressly prohibits instruction in any other language than Turkish (Constitution of the Republic of Turkey: 7 November 1982 (as Amended to 12 September 2010) Part II, Chapter III Social and economic rights and duties, Art. 42 (Turk)).

40.  Religious diversity in education (relation of religion to state and society; freedom of conscience and religion or belief) is, in turn, ambitiously protected in some jurisdictions like the Belgian Constitution: 7 February 1831 (as Amended to 6 January 2014), Main Text, Title II On Belgians and their rights, Art. 24 § 1 (Belg): … Schools run by the public authorities offer, until the end of compulsory education, the choice between the teaching of one of the recognized religions and non-denominational ethics teaching.’ However, this was certainly not always the case, as is well illustrated by the old Political Constitution of the Spanish Monarchy (see Spanish Constitution: 19 March 1812, Main Text, Title IX Public Instruction, Art. 366 (Spain): ‘schools of first letters shall be established in all villages … and the Catechism of Catholic religion will be taught …’. Nowadays, examples of a specific mindset concerning religious education can still be found in the Constitution of Greece: 11 June 1975 (as Amended to 27 May 2008), Main Text, Part II Individual and social rights, Art. 16 para. 2 (Greece), ‘Education … shall aim at … the development of national and religious consciousness’ and, perhaps more controversially, in cases where the principle of secularism is applied with extreme intensity.

41.  Lastly, the idea of economic individual progress and collective growth is not strange to the constitutional notion of education.

42.  To conclude, constitutions and laws indeed place great expectations on the education system, which can probably be understood from the standpoint of a constitutional assembly. Constitutional aims––though not always easy to achieve––have an important function for public policy. But perhaps parliaments and policy-makers should exercise prudence before throwing themselves into burdening schools and teachers with ever-growing lists of principles and values that might be changed when another party comes into office. Primary education is probably one of the most decisive investments of a society, and hence it should be treated with the utmost care.

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  • Häberle, P, Erziehungsziele und Orientierungswerte im Verfassungsstaat (Alber 1981).
  • Lázaro, LM, ‘Child’s Rights and Pre-School Education in Latin America: Progress, Limitation and Challenges’ in Olson, J, Biseth, H, and Ruiz, G, (eds), Educational Internationalisation. Academic Voices and Public Policy (Sense 2015).
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Select Constitutions