Chapter V: Fundamental Rights and Duties of Germans (2)

The Constitution first proclaims the principle of liberty of belief and conscience and the free exercise of religion. These liberties are expressly placed by the Constitution under the protection of the State. They are guaranteed against every invasion no matter from what side it comes. But the general laws of the State remain intact and religious liberty finds itself limited by the general regulations for the maintenance of order and public security. Every abuse in the exercise of religious liberty is punished by ordinary law. Civil rights and duties must not be restrained or conditioned by the exercise of religious liberty. The enjoyment of civil and civic rights as well as the admission to public employ are independent of the religion professed. No one is obliged to divulge his or her religious convictions before any authority whatsoever, and the right of an authority to inquire into the sect to which one belongs may not be exercised except as one’s rights and duties depend upon this, as, for example, in the matter of church tithes or in the matter of guardianship or instruction; or where it is necessary for the gathering of statistics ordered by law. No one may be forced to attend any Church ceremony or to take part in any religious exercise. No one may be forced to make use of any religious oath as was formerly prescribed in civil and penal procedure. It is sufficient, in taking an oath, that the one swearing shall declare without a religious formula, “I swear!”

On the other hand, the Constitution contains several provisions regarding the exercise of religion. Sundays and legal holidays remain protected by law as days of rest and spiritual edification.

These principles being admitted, there still remained the difficult problem of the relations of State and Church. The following solution was adopted: There is neither complete separation nor any close union of the Churches and the State. The Churches are emancipated from the State, but they enjoy certain privileges.

_The Churches are free._ “There is no State Church.” The union that formerly existed between the Church and the State, in Prussia, for example, and in the majority of the German States between them and the evangelical church, has disappeared, and the principle according to which religious affairs depend upon the state is abolished.

This freedom of the Churches is manifested first, in that the creation of religious denominations and sects is free, and that the assembly of religious denominations in associations within the Reich is subject to no limitation whatever. It is also revealed in the complete independence of the Churches in regard to the State. Each religious denomination administers and conducts its affairs freely, provided that it observes the laws that apply to all. It conducts its work without the co-operation of the State or of the municipality. The new system realizes thus the emancipation of ecclesiastical administration from secular control. The State may neither decree regulations affecting faith, nor appoint any one to ecclesiastical service nor demand that its assent be required to the nominations made by ecclesiastical authority.

However, the Constitution does not push the principle of the separation of Church and State to such a point as to allow religious denominations no more than the merely private rights accorded by law to natural persons. Recognizing the social force and the importance in public life exercised by the Churches, the Constitution accords them _privileges similar to those given to public corporations_. Religious denominations existing in Germany at the time of the adoption of the Constitution remain recognized as public corporate bodies. As for other similar organizations, the same rights are accorded them on the motion of the state government if, by their constitution and the sufficient number of their adherents, they offer guarantees of permanence. While recognizing that in theory the smaller religious groups, chapels, and sects may be invested with rights similar to those of the principal churches, the object of the above limitation is to prevent ephemeral organizations from acquiring the standing of public corporate bodies.

The Constitution does not expressly state of what the rights of public corporations consist, for these rights result from provisions made in the legislation of the various states. In a general way, however, public corporations, in addition to the legal standing that private law gives them, are under the special protection of the State. Their organizations are indirectly public agencies, and they have the right to levy taxes. This right, practically the most important of those accorded public corporations, is expressly emphasized and guaranteed in the Constitution.

Religious denominations that are public corporate bodies have the right to _levy taxes_ on the bases of the lists established for the collection of civil taxes. The right to levy the taxes granted to public religious denominations is limited, as a rule, to their members. They may, however, in exceptional cases levy on certain other taxables, particularly corporations and joint stock companies, etc., to the same extent as on their co-religionists, if the laws of the particular State authorize this.

If several religious bodies combine into one association, the latter, without being required to secure any special authorization, becomes a public corporation. This provision is important and has been voted out of consideration for the evangelical churches of the States which up to now were territorially separated, and which are seeking to unite in a German ecclesiastical organization, such as had to be formed after the disappearance of the régime in which reigning princes ruled the churches.

The financial situation of religious bodies is regulated by Article 138. The property and other rights of religious bodies and associations for the maintenance of their cultural, educational, and charitable institutions, their foundations and other possessions, are guaranteed. As a consequence of the separation of Church and State, the Constitution provides that the obligations hitherto imposed on the State to participate financially in the expenses of the Churches no longer exists. But on this point the Constitution compromises. Payments due from the State to the Churches because of some law or of legal title to such, must be commuted by state legislation, on bases fixed by the Reich. The States, however, cannot proceed to do this before a law of the Reich has fixed these bases. Till then, these payments continue. (Articles 138 and 179.)

The liquidation must include not only the payments owed because of a law or treaty, but also those due by virtue of some special legal title, particularly those resting on customary law and tradition.

The question whether, in the new legislation relative to the Churches, there subsists still any special right of supervision by the States, cannot be answered uniformly. Properly speaking there is no right of supervision by the States. But the latter may exercise over the Churches the same control as over public corporations for the purpose of maintaining order and public security.

5.--EDUCATION AND SCHOOLS.

After having regulated the question of the relations between Church and State, the Constituent Assembly took up the problem of education. It approached it in the same spirit that inspired the provisions it adopted relative to fundamental rights and duties. Here, too, it exerted itself to give its work a marked social character; and to a very large measure it succeeded.

However, the Articles concerning the schools were the subject of long deliberations and lively discussions in committee and in the full session of the Constitutional Assembly. In the debates on schools, on the relations of Church and State, and on the relations of schools and churches, two conflicting conceptions were manifested. Whereas the Centre and the parties of the Right declared in principle for religious schools, the Social Democrats championed the idea of secular schools, and long negotiations were required to find a compromise between these two apparently irreconcilable doctrines.

The Constitution, in its final text, contains provisions relative to public instruction, and to private instruction as well as provisions applicable to both of these.

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I.--Public instruction must form an “organized whole.” That is to say, it must not consist of a collection of schools of different kinds without any logical bond between them; but on the contrary it must be systematically organized, in such a manner that each kind of school will be part of a harmonious whole, constructed on a rational plan and answering a definite object. This instruction must be systematized by co-operation of the Reich, the States and the municipalities.

But what principles should guide this organization and what should be its aims? It is here that the social doctrine of the Constituent Assembly reappears. Public instruction whose detailed organization is left to the regulation by ordinary laws to be enacted must present certain characteristics, all arising from the same idea--_guaranteeing to every individual a maximum of development to the end that he may co-operate in the most effective fashion in the well-being of the community_.

(1) At the base of the educational edifice there is the common or elementary school (Grundschule), which gives all children an equal education, from the point of view of length of time and content. _This is the principle of the “uniform” school._ This does not mean, however, that everywhere and in all the states public schools must be organized after an invariable pattern. They are uniform in the sense that they are one in the conception underlying their establishment, in that they are inspired in every respect and exclusively by the same democratic principles, that no difference in instruction is made and that the economic and social position and the religious beliefs of parents are deliberately disregarded in according to children the right to an education.

(2) Above the common schools are the secondary and higher schools. The Constitution does not say how these are to be organized. It indicates only the idea that is to serve as a guide to legislators when they construct the educational edifice. The State is not to yield to the will and the desires of individuals, but is to be guided before all by the aptitudes and the interests of the children.

(3) All children are naturally not compelled to go through the whole educational curriculum, but there is an _obligatory minimum of instruction_. Educational obligations are notably extended in the Constitution as compared to their former limits. “Attendance at school is obligatory. This obligation is discharged by attendance at the elementary schools for at least eight school years and at the continuation schools until the completion of the eighteenth year.” Formerly the obligation to attend school was only for seven years for the public schools. Supplementary instruction, therefore, thus becomes an essential part of public education in all the Reich.

(4) Instruction is free, at least in the elementary and supplementary schools. This is a necessary result of compulsory education. The secondary and higher schools are in theory not free, but “to facilitate the attendance of those in poor circumstances at the secondary and higher schools, public assistance shall be provided by the Commonwealth, States, and municipalities, particularly, assistance to the parents of children regarded as qualified for training in the secondary and higher schools, until the completion of the training.”

(5) Instruction in public schools, with some exceptions, remains religious. The most serious disputes arose over this point. Undoubtedly obvious progress has been realized by withdrawing the public school from the local supervision of members of the clergy; and by making hereafter public instruction as a whole subject to the inclusive control of the State. Municipalities may in addition be summoned to participate in this supervision. This will permit future educational laws of the Reich and administrative laws of the States to give the municipality a share in supervising the instruction--not only over the work of the schools but also over the spirit in which it is carried on. Even parents will be allowed the right to co-operate in it and teachers will be given a voice in the management. The supervision of the schools on the part of the Reich will be hereafter solely by civil servants, who will have this as their principal function and who will be especially appointed for this purpose.

But the principal question was whether the public school, even when supervised by the State, should be neutral or whether it should remain religious in teaching.

Three systems were submitted. One was the system of the secular school, where no religious instruction is given. Another was the mixed school, where children of all religious faiths are admitted without distinction and where the parents indicate whether they wish their children to receive religious instruction, and if so, what. The third was the denominational system, properly so-called, in which the public school is specialized by religious denominations, each denomination having its own school where the child receives the religious instruction of its denomination.

The discussions on this question went through three successive phases. At first there was some agreement on a plan according to which schools would be mixed, in theory, but the denominational school, properly so-called, would not be completely excluded; for the law could admit, on the proposition of parents, the creation of schools in which only the children of a single denomination would be received.

This compromise not completely satisfying the Centre, which used its influence to effect a change, a new plan was therefore accepted. This introduced the denominational school, properly so-called, into the Constitution. According to this plan, the wish of parents would decide whether a school should be secular, mixed or denominational, the free choice by the parents being limited only by the requirements of well-ordered scholarship. The parties of the Left vigorously opposed this. The most serious objection they raised was that it would have as a consequence the necessity on the part of some states, such as Baden and Hesse, which had already introduced mixed schools legally, to renounce them again. A new compromise was thereupon arrived at, which under the new form became the final text. Denominational schools and lay schools would constitute exceptions and could not be established except when demanded by heads of families and conditioned by the requirements of well-ordered scholarship. As for the rest the educational questions must be regulated, the principles by an educational law for the Reich, the details by the legislation of the States.

Thus _in principle the public school is mixed_. The public school is attended by all children no matter to what religion they belong, and religious instruction forms part of the regular school curriculum. (Article 149.) The imparting of religious instruction in the school must take place within the general framework of educational legislation. In other words, it is not the church but the State which gives instruction. It is the State that must take into its hands the organization of religious instruction. It is the State that decides what place religious instruction shall hold in its curriculum. It goes without saying, however, that, as to the content of religious instruction, this must be in agreement with the principles of the religious society concerned. No teacher, according to Article 149, par. 2, can be compelled to give religious instruction or to participate in religious exercises. In the same way no pupils are obliged to take religious instruction or to participate in ecclesiastical ceremonies and festivities. They may only be compelled to do so if the persons who have the right to decide on their religious education express the desire that they do so.

But public secular schools and public denominational schools, properly so-called, also may continue, and their existence is constitutionally guaranteed. These schools, by the same title as the mixed schools, are elementary schools, on which may be based secondary and higher education. But these cannot be established in municipalities except under certain specified conditions. There must first be a formal demand on the part of a sufficient number of heads of families. Then the organization of the school asked for must conform to high educational standards. From all this it may be concluded that the system of the uniform school and the transition from the public school to secondary and higher schools must not be interfered with. In addition, the arrangement of instruction based on the diverse vocational needs, must not be made impossible. Finally, public instruction must not be handicapped by the unnecessary establishment of useless and inefficient schools. The wishes of heads of families, as far as possible and in accordance with the above conditions, must be taken into consideration and their proposals accepted. Questions of detail, such as, what is understood by “head of a family”; how many such are sufficient within a municipality to be able to demand a sectarian or a secular school; how many schools there shall be and of what kind, must be settled by educational laws of the Reich and by laws of the States which must follow those of the Reich.

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II.--_Private instruction is permitted._ (Article 142.) However, this liberty is subject to important restrictions (Article 147) in the case of private schools considered as substitutes for public schools.

In general, establishments of private instruction, no matter of what grade, can be created only _by the authorization of the State_. This authorization is subject to the following conditions: the programme and the equipment of private schools must not fall below the programme and equipment of public schools. The scientific training of teachers of private schools must be of as high a standard as that of public school teachers. The economic and legal position of private school teachers must be guaranteed. Finally, private schools cannot become the schools of class or caste.

Elementary private schools are subjected by the Constitution to several special conditions. Their establishment is authorized when in any municipality there does not exist for a minority of heads of families, whose needs must be considered, a public school of their denomination, or one that conforms to their ethical system. Such a school may also be established if educational authorities recognize in the demands of such a group a special pedagogical interest. The Constitutional provisions relating to programmes and free instruction apply also to private elementary schools.

Private preparatory schools are abolished.

Finally, for private schools that are not substitutes for public schools, such as commercial and professional schools, the laws formerly in existence still operate.

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III.--The Constitution contains a number of provisions for instruction, both public and private. It provides that vocational instruction and moral and civic education shall be part of the programme of all schools. By means of vocational instruction children must be made to understand the great importance of work, for the individual as well as for society as a whole. Civic instruction must acquaint children with the rights and duties of citizens, with the organization of the German State, and with the public life of Germany. To this end, every scholar on completion of the course in compulsory education shall receive a copy of the Constitution.

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Such are the provisions relative to instruction in the schools. They constitute, as compared to the former state of affairs, a considerable change. But these provisions cannot be effectively put into operation except by a series of laws on the part of the Reich as well as of the States, a process which threatens to be a long one in point of time.

However, in April, 1920, the first law on this matter was passed by the National Assembly. It was the law _on the elementary school_. According to this law, primary schools must be so organized that the first four years may at the same time serve as a preparation for secondary and higher education. Every child who has successfully graduated from the highest class of the elementary school must be sufficiently prepared to enter immediately a secondary or a higher school. Public preparatory schools and public preparatory classes are abolished. As for private preparatory schools, their suppression will take place only after a sufficiently long reprieve; their complete abolition need not take place until the commencement of the school year 1929-1930; since economic difficulties prevent the earlier abolition of these schools, and means must be taken to provide for the teachers who will be deprived thus of their occupations. Private instruction is not allowed except in particular cases and can only in special circumstances be substituted for the elementary school. The law does not touch instruction and training in auxiliary classes; nor does it concern itself with the instruction of children physically or mentally diseased.

In addition a certain number of interesting innovations have been enacted into legislation. These have as their purpose the participation by parents and pupils in the administration of schools. On the one hand, in the secondary schools there are organized Students’ Councils (Schulgemeinden). These Councils are formed by pupils of the three upper classes, who meet periodically in assembly to discuss questions of instruction--educational matters, quarterly reports, discipline, duties, etc. Teachers attend these meetings without the right to vote. Up to now these assemblies have had only the right to propose reforms without power as yet to make them operative. On the other hand, parents elect for each school a Parents’ Council, one member for every fifty pupils.[56] This Council concerns itself mostly with classes, examination and discipline. If a pupil has committed a fault involving the possibility of expulsion from the schools, it is before this Council that this question is taken. Teachers are sometimes admitted to these deliberations but have not the right to vote.