The Catholic Lawyer

Volume 11 Number 4 Volume 11, Autumn 1965, Number 4 Article 4

Religious - The of Parents in the of their Children

D. Joaguin Ruiz-Gimenez Cortez

Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl

Part of the Family, Life Course, and Society Commons, and the Religion Commons

This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. RELIGIOUS LIBERTY- The Rights of Parents in the Education of Their Childrent

D. JOAGUIN RUIZ-GIMENEZ CORTEZ*

Introduction

F EW PROBLEMS CAUSE MORE ANXIETY and concern for Christian jurists than the problem of the fair ordinance of religious liberty within each political community and in the international sphere. The teaching of the integral values of the common good on all levels of society, and the need for a very deep and profound respect for the conscience of the individual are factors which converge in this problem of religious liberty. To my credit and pleasure, I have been entrusted with introducing the analysis of one of the most attractive and complex aspects of that vast subject. In effect, it deals with reflecting seriously on the reciprocal implications between the "natural right of religious liberty" of each human being and the rights of parents in the education of their children. These words suffice for an understanding of the depth and direction of the problem. Given the limited amount of time at our disposal, it is obvious that we cannot attempt to treat our subject in a systematic manner or in all of its ramifications. On the other hand, our task is better understood as directed toward the encouragement of collective thinking on this question so rich in nuances, and in recapping the thoughts of all the members of the Congress. Thus the minutes of this great assembly will contain the widest possible information concerning

t Paper delivered on the occasion of the Fifth International Congress of Catholic Jurists at Salamanca, , September 8-12, 1965. Spanish manuscript trans- lated by Martin I. Solomon, B.A., Queens College; M.S., St. John's University; and Anthony J. Indence, Jr., B.A., University of Notre Dame; LL.B., St. John's University School of Law. * Professor of and Philosophy, University of Madrid. 11 CATHOLIC LAWYER, AUTUMN 1965 the approaches and solutions to the prob- from the Cathedral of St. Peter, Pope Paul lems that presently manifest themselves in VI has emphasized the same exigency: the various countries here represented. Modern progress places more emphasis on With merited regard for the personal re- spiritual goods. This is because progress it- flections of the illustrious jurists here as- self needs good souls, strong men, well ed- sembled, and the countless others who are ucated spirits, whole and intelligent men. spiritually united with us from afar, I dare And it is precisely Christian education that to point out some simple reflections. It is forms man in his totality and leads him to the conquest of supreme values, thus en- and put my hope that we shall thus find abling him to properly enjoy the goods of into effect adequate juridic formulae which this world as well. guarantee, at the same time, respect for a true freedom of conscience and the cultiva- As our historical experience amply dem- tion of the fundamental values of the spirit. onstrates, in any attempt to formulate juridic To more deeply approach the subject norms for the regulation of the educative under consideration, and in order to prop- system of a particular society, we are ob- erly delineate its complexities and difficul- viously presented with a contrast of oppos- ties, it is important to emphasize the three ing considerations. That is, the norms we sets of significant factors that enter into seek must at one time respect the freedom play. of the conscience of each citizen, and also 1) The dimension of religiosity in hu- the integrity of an education that fosters man life, in all its aspects; from the most the highest spiritual values-at its peak, intimate-those that invade the sanctuary the of Christian religiosity. He who of the conscience-to the most external, refuses to retreat into the two extreme and e.g., the public manifestations of the cult. inadequate positions of either secular and This area of the relation of man to God pseudo-liberal agnosticism, on the one cannot remain outside a fully human for- hand, or ideological servitude to secular mation of the individual, if one does not totalitarianism, on the other, will always want to mutilate man in regard to what is feel an extreme anxiety in his soul. This is most profound and significant in his life. caused by the desire to achieve a beautiful It does not deal, in fact, with preserving harmony of personal liberty with service an "historical religiosity," which the role of to objective truth. During this life, such a science and technology can eliminate. It perfect harmony is never completely real- deals, on the contrary, with cultivating an ized and, therefore, a constant tension re- essential dimension which will have mean- sults-but it is precisely this tension that ing in the present, and which will help to gives immense drama to human existence. forge the future. As Jacques Maritain has 2) From another perspective we must accurately observed: "The education of to- consider the essential role of the educative morrow will have to put an end to the and directive authority within the family separation between religious inspiration group. For as much as we insist-and I and the secular activities of man, just as insist to the utmost-on the importance integral humanism must encompass among and necessity of the family having an ever- its principal roots the sanctification of pro- increasing communal and informal struc- fane and temporal being." More recently, ture (and that the relationship between the CONGRESS OF CATHOLIC JURISTS parents and the children be articulated in dren, is increasingly apparent in the social a heart to heart dialogue, with the language realities of our day and the juridic norms of love and understanding, over and above that reflect them. a hierarchical system of severity), it is im- No one with a truly realistic and hu- possible to eliminate, since it is in the man approach would dare to deny the nature of things, the illuminatory and cor- mother an extremely important role in the rective mission that parents share with re- molding of the child, especially in that spect to their children. which concerns . In fact, But all this is complicated by another in the immense majority of homes, the dimension of the problem which is equally mothers are the ones who bring to life the natural and undeniable: that of the dignity faith and the love of God in the souls of of the child, and the duty of respect for his their children. But precisely for that rea- conscience and for his sacred right to the son it is not possible to ignore (and jurists free search for truth. If, in the first years throughout the world have painful experi- of his life, these factors are embryonic, ence of it) the problems that exist concern- they must nevertheless be recognized. As ing the role of the father and the mother the child grows, the tensions and struggles with respect to the moral and religious between these two fundamental attitudes education of their descendants. The ten- (that of the parents, who try to conform sions between the disbelieving father and the child to their deepest beliefs, and that the pious mother, and, in rarer cases, the of the child who reaffirms, as a human unbelieving mother and the deeply religious being, his right to the exercise of respon- father or (that which is particularly im- sible liberty) become more apparent. portant to the ecumenical climate in which The jurists and, above all, the legislators, we live) the father of one religious con- have to approach the mystery of the pater- fession and the mother of another, raise nal-filial relationship with great delicacy difficulties in the face of which neither the and respect. However, they can not close Church nor the State can remain indiffer- their eyes to the often ignored fact of a ent. However, their intervention must be break in the communications and peace of realized in a manner that will sacrifice the family. neither the well-being of the child, nor a 3) There is still more to be considered respect for his conscience. Furthermore, in this area. It is the problem of the equal- the educative function of the parents must ity of the father and the mother concerning be equally respected, and attention must the exercise of family authority and, above be given to the essential unity of the fam- all, regarding the educative function. In ily. At first sight, the problem would seem absolute matriarchal or patriarchal sys- to require something like a "squaring of tems, the question would have no more the circle." than an historic importance. However, in It has seemed indispensable to us to our society it acquires an immediate ur- point out the multiple and complex factors gency. The equality of rights and duties of concerning the problem we are analyzing, both the husband and wife concerning the in order to acquire a suitable understand- conduct of the home and, above all, in the ing of its magnitude and difficulty, not with formation of the personality of the chil- the temptations of sceptic indifferentism, 11 CATHOLIC LAWYER, AUTUMN 1965 but rather with a deeply human desire of common good. But it is most important to contributing, according to our vocation as emphasize that the concept of the "com- jurists, to the finding of the most humane mon good" cannot be understood as syn- solutions to the problem. A scientifically onymous with the good of the State, as methodic reflection on the problem would something heterogeneous and superior to oblige us, consequently, to examine in de- the personal good of each citizen. It is, in tail each one of these aspects. But, since the language of John XXIII concerning that is not now possible, nor even strictly the treatise of Pius XII, the conjunct of necessary, considering the ideological social conditions that make possible, pre- homogeneity of those attending this as- cisely to each and every man, the most sembly, we will content ourselves with the facile and intense affirmation of his per- enumeration and consideration of three sonality. basic precepts. Having brought to light these basic dif- First, the natural, inalienable and in- ficulties, we shall concentrate our analysis violable right of each human being, regard- on the great problems which we previously less of sex, age, or social position, to a just pointed out. We will handle these difficul- religious liberty, i.e., according to the beau- ties on a sociological and moral plane, as tiful words of His Holiness John XXIII: well as in regard to the juridic concepts "to honor God according to the dictum of either articulated in the existing positive his proper conscience and to profess his law, on a national or international scale, religion privately and publicly." or still in fieri under the impulse of the Secondly, the equally undeniable role of exigencies of natural law. Above all, we the parents, which is at once a right and will consider these problems in relation to a duty, in the education of their children a Christian juridic understanding at the according to their own beliefs and ideals, level of the present historical situation of on all levels, from scientific and profes- the world. sional training to the highest moral and We shall proceed from the most exter- religious values. (For the moment we nal or tangential perspective-that is to leave in parenthesis the difficult question say, the existing tensions between the do- of whether this right and duty of parents mestic community and the State-to the reaches the extreme of "excluding the di- most intimate perspective, that is, the pos- mension of religiosity" in the formation of sible tensions within the family itself. Thus, their children when they, the parents, are we will first consider the contrasts and formally agnostics or militant atheists.) conflicts between the educative activity of Thirdly, the co-ordinative and even the parents and the juridico-political func- perfective function of the State (in the tion of the State. In order to illuminate the light of the principle of subsidiarity), in problem as much as possible, we will enter the sense not only of making compatible into a very short examination of the ten- coexisting or contrasting (e.g., the sions between the spouses with respect to exercise of religious liberty and the educa- the education of their children, as much tive mission of parents), but also in the in situations which we could term "normal" blending and integration of these subjec- living, as in circumstances of discord. tive attitudes within the service of the Finally, we shall reflect on the harmony CONGRESS OF CATHOLIC JURISTS and discord that exists between parents As Christian jurists, that is to say, as and their offspring regarding their religious men dedicated to the idea of justice as a formation. vocation, we have to recognize that some of the preoccupations of the "old liberals" Tensions Between the Educative ought to be examined calmly and incorpo- Mission of the Parents and the rated into a fully human scheme of educa- Juridico-Political Function of the State tion. I refer principally to the guarantee that all parents should always be able to It is a fact of history that situations of find within the educative system of their tension and conflict between the family and country institutions which impart to their the State concerning the education of new children moral and religious teachings in generations have occurred many times and, agreement with their beliefs, whatever they in fact, are still occurring. The factors may be, limited of course by a respect for which concur in creating these situations the values of morality and of public order. are of very diverse nature, but their ulti- It is also undeniably important, especially mate root lies in the distinct and opposing in the primary and intermediate grades, ideological concepts of the world and of that these schools, whether public or pri- life. vate, have as students children and young It is not necessary to describe here the people from the various regions, races and two, well known, extreme "statist" atti- social levels of the nation, so that it will be tudes which, while derived from antago- possible to achieve, from childhood, a nistic philosophical roots, are nevertheless better climate of understanding and of coincident in their understanding of the dialogue. This is imperative in any really educative problem (a fact which at first human society, and is especially important sight would appear to be a paradox). The in a society which pretends to nourish it- old liberal, or better, pseudo-liberal con- self on Christian ideals. cept reached its peak in the latter half of But these aspirations and others like the nineteenth century and in the first dec- them must be achieved through a juridic ades of the twentieth century. Relying on ordinance which does not rely on the al- an affirmation of respect for the conscience ready anachronistic "secular liberalism," of the child, and other similar declarations, in which are found many of the totalitarian (e.g., the necessity of eliminating all "su- deviations of the past. Through the years, pra-scientific" elements from the formation the supreme Magisterium of the Church of the young and of giving the most has frequently confronted and condemned homogeneous "secular" education possible "secularism" in this area. Recall the cen- to all the citizens in a single system of sures of Pius IX's Syllabus or those of Leo state-operated schools), this tradition gen- XIII concerning "secular" education, as erated very painful attacks, not only on proclaimed by "liberal" Masonry, and la- the necessity for an integral education of ter those of Pius XI, with regard to anal- the entire human being, but also against ogous problems in Mexico and in Spain. the natural right and duty of parents to Similar and still more serious secular care for the spiritual formation of their interventions have occurred under the children. regimes of collectivist or totalitarian in- 290 11 CATHOLIC LAWYER, AUTUMN 1965 spiration, whatever their ideological base teaching and even that which refers to the (e.g., monopoly of nationality, race or so- perfection of the human life." Therefore, cial class), and regardless of the historic it would be against natural justice if the forms in which they have been crystallizing child, before it had gained the use of rea- during the last century. It is also a painful son, were to be taken from the care of the fact that the juridic ordination of education parents or in some manner dealt with within these political situations (call them against their wishes. German Nationalism, Italian Fascism, So- On this basis, the Supreme Pontiffs have viet Communism) radically violates the insisted untiringly on the following key natural mission of the parents with respect points. to the formation of their children. Con- 1) Education must tend toward the in- sequently, these abuses have been severely tegral formation of man, in both the natural condemned from the Cathedral of St. Peter. and supernatural spheres. Leo XIII, in 1878, denounced the errors 2) The protagonists of this process of of Marxist Socialism on this point. Dec- education are, in the most direct and pri- ades later, Pius XI did the same with re- mary way, the parents (and, by extension, gard to German National Socialism and the tutors), i.e., the family, with the co- Fascism. Pius XII repeated these protests operation of the Church (in that which against any educative system of totalitarian concerns the transcendent dimension of form. the human being) and, in a subsidiary way, From the depths of these false opinions the State (whose mission consists in pro- rises the Christian concept which, while viding facilities for the educative work of recognizing the respective functions of the the primary agents, thus to supply their Church and also of the State (although on deficiencies and harmonize their different different levels) in the education of the activities, with reference to the common youth, clearly points out the role of the good). This is in no way intended to family and the rights and duties of the prejudice the direct function of the State parents. It is neither possible nor neces- in that which concerns military instruction sary to systematically develop that doc- and purely civic formation. trine here. It is well known to all the mem- 3) In order that they be able to accom- bers of this Congress, and has always been plish this broad educative program, it is unequivocally announced by the Pontifical necessary that the juridic norms of each Magisterium, especially since the second nation guarantee to the parents the ex- half of the past century. ercise of their rights and duties concerning The point of departure is the Gospel the education of their offspring, while giv- precept of carrying the light of the faith to ing recognition, and aid, to schools on all the peoples; Docete omnes gentes. In every grade level, be they Church or pri- still more concrete form, it is St. Thomas vately owned institutions, provided that Aquinas' idea that if God participates uni- they have the necessary moral, social and versally in reason from the beginning, the technical qualifications. father participates according to a singular 4) Due to the exigencies of distributive mode and is immediately responsible for justice, the State should cooperate by set- the "generation, the education and the ting aside a proportional ratio of public CONGRESS OF CATHOLIC JURISTS funds for education, including the estab- necessity and urgency of opposing danger- lishment of a system of public schools to ous influences, within and outside the fam- supplement private institutions, thus assur- ily, in the process of forging and strength- ing to all the children, young people and ening the humanity of the child. adults of the nation a sufficient education As a perfect evolutionary recapitulation and, through it, a real equality of oppor- of that teaching, John XXIII inscribed tunity in the collective life of the society. this right of parents to the education of On this subject, it is especially impor- their children on the tablet of the natural tant for us to draw attention to the often rights of each and every man: "Parents repeated exhortations of the Popes to all have," we read in Pacem In Terris, "the types of governments-that they respect primary right to maintain and educate the educative mission of parents and make their own children." possible its actual fulfillment. These state- Now, in the climate of the Second Vat- ments have a direct bearing on the subject ican Council, and as a preview of the we are analyzing. Leo XIII saw in this solemn statements which that great As- policy one of the distinct roots of all au- sembly will doubtless make, on approving thentically Christian political thought and the pastoral on the relations one of the most sacred duties of all just of the Church with the modem world, and government. In that vein, Pius XI, in ad- more concretely, in the declaration precisely dition to expressly contradicting, as we on the Christian education of the youth, have seen, the concrete errors of the His Holiness Paul VI has insisted on the "pseudo-liberal" and of the totalitarian cardinal role that the family must play in systems, dedicated a special and systematic the decisively spiritual enterprise of edu- attention to the theme of education in two cation. of his great Encyclicals: Divini Illius Ma- In the light of all these directives of the gistri and Casti Connubii. Principally in Pontifical Magisterium, and considering the first of these, and in extremely modern present conciliar tendencies regarding reli- language, he explicitly and energetically de- gious liberty and ecumenism, one can and fended the educative duty and right of par- must insist that the Christian doctrine con- ents against the intrusions of the State. He cerning the educative mission of parents, considered this a right and duty derived and the just position of the State with re- from the natural law and to be applied spect to it, have an increasingly pluralistic universally, not only to cases involving character and, in fact, form a double per- Catholic parents. Faithful to the inspiration spective. First, with regard to recognizing of his predecessor, Pius XII did not miss and sanctioning, in educative matters, the an opportunity to underline the essential independent legitimacy of the role of all value of education in itself, and as a foun- the integral domestic communities of the dation of social peace. From the first nation, without diminishing either the mis- encyclical of his Pontificate, he drew at- sion of the Church in religious formation tention to the mission of the parents and of the faithful or the proper function of of the teachers, the respect due the individ- the State in safeguarding the common ual's conscience concerning the cultivation good. Secondly, with regard to the as- of the supreme values of the spirit, and the sumption within the Christian world of the 11 CATHOLIC LAWYER, AUTUMN 1965 principle of religious liberty (correctly confine ourselves to some examples of the understood, that is, not as autonomy be- two basic tendencies, i.e., the most "secu- fore God, but as autonomy before tem- lar" (in whatever form), and the most poral powers) such that, from day to day, authentically democratic and, therefore, the various Christian Churches (and even respectful of the educative rights of the more distant religious confessions) co- parents in relation to the principle of reli- incide and unite their efforts in the defense gious liberty. (This classification is purely of the right of the parents to religiously indicative, and we are conscious of the educate their children, according to their difficulty which is always involved in any own beliefs, against the intrusion of other attempt to enclose the complexities and ecclesiastic or civil institutions. dynamism of collective phenomena within a rational scheme.) Present Juridic Perspectives Among the existing positive juridic sys- Having observed, although in very syn- tems, there are some, in the East as well thetic form, the panorama of ideological as the West, where an excessive intrusion currents which give rise to the problem of of the State and, in general, of the public the relations between the family and the corporations, still prevails in the field of State, in that which most directly affects education. Such, for example, is the case the education of the youth, we shall now in Mexico, where they follow precepts attempt to summarize, also in abbreviated similar to those contained in article 3 of form, the attitudes concerning it which the 1917 Constitution. The latter, despite have been crystallized in contemporary successive tempering modifications (on the juridic ordinances, or those which will 13th of December, 1934 and on the 30th appear in the immediate future. of December, 1946), still places the mo- In order to facilitate the integration of nopoly of national education in the hands the contributions which the members of of the State, with the express purpose of this Congress are able to make within our excluding all religious doctrine from the discussion, we shall examine successively education of the youth. It also obliges in this chapter (as likewise in the other two private schools to follow the same pattern. chapters of our study) the area of existing It is only fair to recognize that, during the (be it the national laws of the last quarter of this century, the rigorous most important countries, Canon Law, or enforcement of these laws has softened. international law) and, afterwards, evolu- However, there still exists the inherent tionary legislative proposals and efforts, risk of their enforcement, and of the at- stimulated principally by the activities of tacks which they now and again produce the United Nations and the Second Vat- from a militant "secularism," e.g., the May, ican Council. 1963 pastoral letters of the Bishops and the polemics that followed in the national press. Knowing the Christian spirit of the Existing Positive Law people of Mexico, we are confident, there- It obviously is not possible for us to fore, that, through a process of authentic examine here the entire area of compara- democratic evolution, the formal dero- tive law on this subject. Rather, we must gation of these precepts and the installation CONGRESS OF CATHOLIC JURISTS

of a system truly respectful of the liberty will later refer), incurred two dissenting of beliefs in educative matters will be votes, one from the Soviet Union and one achieved. from Mexico, and a Polish abstention Almost at geographical antipodes, we (three nations which, although proclaiming find another series of countries where the in their the principle of free- government rigorously imposes its own dom of and of religion, obstinately ideological beliefs and seriously curbs the persist in an exclusive secularism with educative rights of the parents, as well as regard to matters of education). many other fundamental liberties. Such is On the other hand, the majority of the the case of the Eastern European and countries of the free world include in their Asiatic nations, where political regimes constitutions and in their civil codes the inspired by dialectic materialism and mili- right and the duty of the parents to educate tant atheism have triumphed. The proto- their children according to their own reli- type is the 1936 Constitution of the gious beliefs within, of course, the limi- U.S.S.R., which imposes a general and tations that natural morality and the com- obligatory public school system, separates mon good impose on the exercise of any the Church from the school, and guaran- of these fundamental liberties. Thus, in tees the freedom of anti-religious propa- Europe, such is the fundamental law of ganda. the Federal Republic of West Germany Despite their formal declarations of reli- and it is contained in the constitutions of gious liberty, Czechoslovakia and the Peo- , , France, , , ple's Republic of China are in line with the Netherlands, Portugal, Switzerland and the Soviet system. So also is the legislation Turkey. Furthermore, in Great Britain, a of Hungary, Poland, East Germany and broad system of educative liberty prevails, Yugoslavia, although there is somewhat with attention given to the interests of the more respect for the individual conscience family, their beliefs, and the welfare of the in these countries, due, no doubt, to the child. In America, the constitutions of Ar- strength of the popular Christian substrata gentina, Paraguay and the of which lie latent under the prevailing polit- America emphasize these same points. In ical system. Asia, such is the constitution of Japan and In all of these totalitarian systems, to a the same considerations prevail in those of greater or lesser extent, a respect for the Africa's Ghana and Morocco. autonomy of lesser social units and es- Due to the uniqueness of their respective pecially of the family, in that which con- socio-political and religious situations, sep- cerns the moral and religious formation arate mention is made of the fundamental of new generations is inadmissible. Per- laws of Norway, Greece and Spain. In haps this is the clearest explanation of why Norway, the official religion of the State is the proposed United Nations Agreement Lutheranism, and the citizens who profess For The Elimination of All Forms of Reli- that religion must educate their children in gious Intolerance, which was crystallized in it. With respect to Greece, the principle of a document approved by the corresponding religious liberty reigns, but its official reli- subcommittee during the celebrated ses- gion is that of the Eastern Orthodox sions at Geneva, last January (to which we Church of Christ, and all education must 11 CATHOLIC LAWYER, AUTUMN 1965 be based on the ideological directives of "the very grave obligation" which parents Greco-Christian civilization. have "to procure, with every effort, an With regard to Spain, according to the education for their children, as much in basic norms of the existing positive law, religion and morality, as in the material Fuero de los Espanoles of 1945, and the and civil areas," a precept indicated to be Law of the Fundamental Principles of the as much a right as a duty in the second Movement of the 17th of May, 1958, the paragraph of Canon 1372. Catholic religion is the official religion of On the other hand, with regard to the the nation and the State, and education on content and levels of Christian education, all levels must be inspired by it. Never- the same Code prescribes that, on all theless, the legislature has forecast, in the levels, from the elementary schools to the sixth article of the Fuero de los Espanoles, secondary schools, there must be religious the principle of tolerance and respect for instruction comparable to the age of the religious creeds of non-Catholics in the child (Canon 1373). It orders that Cath- private sphere. The existing Concordat be- olic children are not to attend anti-Catho- tween the Spanish State and the Holy See, lic, neutral, or mixed (that is to say, also executed on the 27th of August, 1953, open to anti-Catholics) schools, except in despite its reaffirmation of the principle particular circumstances where, with due that all education will be inspired by the caution, the local ecclesiastical authorities, Dogmas of the Catholic religion, explicitly in accordance with instructions from the establishes, in its 27th article, that "the Holy See, could tolerate such attendance children of non-Catholics, when their par- (Canon 1374). Furthermore, in order to ents (or those who act as parents) request reinforce what we would call the educative it" will be dispensed from education in the autonomy of the Catholic family in col- Catholic faith. laboration with the Church, the Code de- Further, in article 23, Fuero de los Es- fines the right of the Church to establish panoles states generically that it is the schools of any discipline and grade, includ- obligation and, at the same time, the right ing universities (Canons 1375 to 1379). of parents to educate and instruct their Finally, the Church's right to exercise vigi- children. The Civil Code of 1889 legalizes lance and authority in all that affects the this right without distinctions, so that other religious formation of youth in the differ- norms must be liberally construed so as ent educational centers of the nation is not to impose on non-Catholic parents the underlined (Canons 1381 to 1383). difficulty of giving their children a moral Viewed from this perspective, it would or religious education discrepant with their seem, at first sight, that there is little at- own faith. In line with this approach is the tention given to freedom of education for new statute for the regulation of the jurid- non-Catholic parents, in the sense that they ical position of dissident confessions, now could send their children to schools where being prepared by the Spanish government. the religious formation in their own beliefs The norms of Canon Law on this point would be guaranteed. However, one must are clear, definitive and in line with the remember that when the Church speaks of traditional teachings of the Church. The the right and the duty of parents to edu- Code of 1917 declares, on the one hand, cate their children, it does so in the name CONGRESS OF CATHOLIC JURISTS of moral exigencies and natural laws which derlines the fact that education must are, therefore, universal and are not limited "attend to the complete development of the to men of the Catholic faith. Recall on this human personality," and reinforces respect point the enlightened text of Pius XI in for the rights of man and for his funda- the Encyclical Divini illius Magistri, cited mental liberties. It attempts to foster un- above. derstanding, tolerance and friendship Furthermore, as the Code explicitly among all nations and all racial and re- states, the laws contained therein apply ligious groups. But, above all, and that only to those baptized in the Catholic which is most important to our present Church and, consequently, they leave un- purposes, it declares solemnly (article 26) touched the possible right of parents who that "parents have priority in the right of are not formal members of the Church choosing the kind of education their chil- to the education of their children in their dren are to receive." own beliefs (Canon 12). It was announced at the concluding ses- Finally, in the majority of Concordats, sion of the UNESCO meeting in Ham- including those with Catholic countries, burg, in January, 1953, that parents are it is expressly provided that the children the first educators of their children. That of citizens who do not profess the Catholic same spirit inspired the Charter of the religion should be excepted, at the petition Rights of Children also approved by the of their parents, from receiving Catholic General Assembly of the United Nations instruction. on December 20, 1959. We would not want to close this discus- It is unfortunate that, since the Declara- sion without mentioning that the principles tion of 1948 is only a "recommendation," contained herein are analogically appli- many of the member states who subscribed cable to the peculiar circumstances of to it nevertheless seriously violate in prac- adoptive parents, teachers, godparents and, tice the educative rights of parents. There- in general, those who act as parents and fore, it is praiseworthy that the member exercise legal responsibility for the care of states of the Council of Europe included minors (Canon 1335 of the Code). in their Agreement for the Protection of In the area of international law the ex- the Rights and Liberties of Man, approved plicit and solemn recognition of the rights by the Treaty of Rome, in 1950, the obli- of parents to educate their children has gation of respecting freedom of conscience been reinforced since the Second World and of religion in all its dimensions, in- War. cluding education, without any further The Universal Declaration of the Rights limitations except, as is logical, those im- of Man, approved by the United Nations posed by the law "in a democratic society on December 10, 1948, not only guar- for the public security, the protection of antees to each man the right to liberty of order, health, morality, and other rights thought and religious belief, but also em- and liberties." In the Paris Protocol Sup- phasizes that this right embraces a series plement of 1952, the members prescribed of liberties, internal and external, and in- that "the State, in the exercise of its func- cludes the teaching and preaching of one's tions in the field of education and of own faith (article 18). In addition, it un- teaching, will respect the right of parents It CATHOLIC LAWYER, AUTUMN 1965

and assure education and teaching in con- tains that the agreeing states must oblige formity with their religious and philosophi- themselves to respect "the primary right of cal convictions" (article 2). the parents and, in their place, the tutors, Precisely in order to end the discrimina- to select a religion or belief for their chil- tion that still exists in the area of religious dren." It is hoped that the proposed agree- liberty and, within it, against the rights of ment will be definitively approved by the parents in the education of their offspring, Assembly of the United Nations, despite the General Assembly of the United Na- the arguments against it, formulated, as we tions, in its seventeenth session, December, said, by those states where a "secular" con- 1962, agreed to prepare a declaration and cept of public life and especially of the another pact "in order to eliminate all the educative system is predominant. Let us forms of religious intolerance." After also hope that, as a result, the intrusions numerous difficulties, the complete sub- of the State in this area, so seriously committee, in its celebrated meetings at damaging to , will gradually Geneva last January, approved, as is well disappear. Of course, the State can and known, a resolution that constitutes a "pro- must continue to secure a reciprocal re- posed pact" of thirty articles. spect among the distinct racial and religious While we cannot enter into an analysis groups in the nation, and must provide of its structure and content, it is especially adequate technical and pedagogical facil- important for us to underline certain points ities for both public and private education. that directly concern the material which we are examining. Tensions Between the Husband and 1) It assures to every human being the Wife With Respect to the Education liberty of embracing any religion or belief of the Children and of changing it, according to the dic- Until now we have concerned ourselves tates of his conscience and free of any principally with the basic question of the coercion. It also guarantees his right to the relations-in harmony and in discord-be- public or private manifestation of his tween the family, considered as a whole, faith. and the State. But our analysis would re- 2) It confirms that this liberty includes main seriously deficient if we did not ex- not only the right to honor, pay tribute to amine the interior tensions within the and make the pilgrimages of his faith, etc., family itself, between its founders, the but also the liberty of "teaching, divulging, parents, and also between them and the and learning his religion or belief-its children (we shall cover this last aspect sacred language and its traditions, and to in the following chapter). prepare people who wish to dedicate them- It is a painful but true fact that in the selves to its activities." Further, it insists bosom of the home there arise, at times, that this liberty includes the practice of his differences and even serious arguments religion or belief in the establishment and between the spouses concerning the edu- maintenance of charitable and educational cation of the children, especially in its institutions (article 3 of the "proposed moral and religious aspects. But before pact"). entering into an analysis of these tensions In addition, this "proposed pact" main- it seems indispensable to us to point out, CONGRESS OF CATHOLIC JURISTS

although in very succinct form, the char- consider the Spanish Civil Code of 1889, acteristic roots of the social change that which, in its article 154, states that family has occurred during the last one hundred authority over minor legitimate sons is years. concentrated in the father and, in his ab- Generically considered, although con- sence, in the mother (although without fining ourselves to the Western World and, failing to note, as we shall emphasize later, within it, to the middle class family (since a very important participation of the an examination of other types of families, mother in some substantial ways). in oriental countries, and also those of the That which we would very respectfully working, farming and, above all, industrial call the "traditional" attitude of the Cath- classes would make matters too compli- olic Church moves in the same direction, cated to handle here), it is noteworthy although it must be recognized that, to that, until the end of the nineteenth its honor, the Church has always opposed century and, in some regions, even until the preponderance or abuse of the father's well into the twentieth century, a situation power in the bosom of the family, or in re- had prevailed which we could call the gard to the wife or with respect to the re- "Roman image of the family," strongly lationship between the parents and the chil- hierarchical, with "monarchical" power dren. very much concentrated in the hands of Furthermore, thz Church has underlined the father. A spirit of obedience and mono- in every instance that the union of the hus- logue permeated the paternal-filial relation- band and wife must be a union of love and ship. of peace, similar to the union of Christ This is not to say that the rebellious ro- with His Church; that the power of th- mantic movements characteristic of the father is not a despotic or tyrannical power second half of the nineteenth century did but a "political" one, subject, therefore, to not attack this concept many times. They ethical and juridic norms, in service always did, but from a sociological point of view, to the common good of the family and the they failed to alter it in any generic sense. personal well being of each one of his chil- Within this concept, the educative mission dren and that to the mother belongs an of the parents was centered very definitely indispensable educative function in the on the father, at least in a juridic sense bosom of the home. But along with this (although, in fact, the mother has always dedication to principles and moral exi- been a very active participant in the moral gencies, it is a fact that the prevalent ten- and religious formation of the children, dency among traditional Catholics of the above all during infancy and adolescence). nineteenth century and part of the twen- This attitude is manifested in the ma- tieth (even with support from some texts jority of the Civil Codes promulgated in of the Pontifical Magisterium, like Leo the past century. Let us take for example X1lI's Encyclical, QuodApostoliciMuneris the Napoleonic Code, the senior of all of 1878) has been a defense of the pyra- those of Western Europe, which in its first midal structure of the family, vitalized and rendit'on of article 373, as we will see later, mitigated by the necessity for a reciprocal attributed to the father, that is to say to the charity and respect. male, a monopoly of family authority. Or During the decades in which we have 11 CATHOLIC LAWYER, AUTUMN 1965 lived, the socioeconomic, cultural and po- porary life, he underlined strongly her litical transformations have been so intense very essential role in domestic and social that they could not fail to be reflected education and praised all the positive as- strongly-in both their good and bad as- pects of the movement promoting the fem- pects-in the structure of the family, above inine sex, both within the family and in the all, as it affects our discussion most di- community at large. rectly, in regard to a certain leveling of His Holiness, John XXIII, took decisive the husband and wife concerning the ex- steps in the same direction; considering the ercise of family power and in regard to the advancement of the woman as one of the new pedagogical methods in the formation signs of our times, and emphasizing the of the children. The "monarchic" approach equality of rights and of duties between which tended to monopolize power in the the man and the woman when creating a hands of the father is giving way to the family, and when exercising, with the hus- dynamism of social life, resulting in a cer- band (speaking of them in the plural), the tain "diarchy," a combine of power in the mission of maintaining and educating the hands of the father and the mother to- children. gether. This "family power," while it re- Finally, His Holiness, Paul VI, in ad- mains an inherent right of the family, is in- dressing himself to the International Union terpreted still more in the sense of a func- of Family Organizations, has refused to tion of duty and service. We will examine ignore the great transformations that have both aspects of the problem. occurred within the family. While voicing With regard to the position or respective some legitimate anxieties, he has neverthe- levels of the spouses, it is not necessary to less unequivocally stated that the Church point out that the change that has oc- is in accord with the positive aspects of curred has been rapid and fundamental, many of these innovations, principally in due to the effect of very diverse factors that which refers to the greater liberty of which have vigorously and inexorably pro- conscience of each of the spouses and to moted that which has been called the "ad- a more lively interest in the education of vancement of womanhood," both within the children. and outside the home. The Holy Fathers This social change has, of course, pro- have proclaimed it with increasing clarity, duced deep repercussions in existing posi- without failing to note certain dangers that tive law (as we shall see later). The posi- could threaten the very dignity of a woman tion of the woman in the administration and her most genuine functions. They have of the home and, above all, in the educa- exalted the value of this process and have tion of the children (which is here most emphasized the essential role of the mother directly important to us), has been or is in the education and, above all, religious being explicitly recognized, depending on training of the young. the particular country involved. This does World War II accelerated this process. not eliminate but rather, in a certain sense, Pius XII, with his sharp sensitivity, echoed accentuates certain problems, like the reso- it. While fighting against the serious dan- lution of the tensions or conflicts between gers to the dignity of womanhood, lurking the spouses, which endanger "family in certain degenerative aspects of contem- unity." CONGRESS OF CATHOLIC JURISTS

As a matter of fact, there is still no com- beliefs which evolve with time, oblige us to plete agreement among moralists and jur- search for equitable formulae which are or ists as to whether it is possible to recog- could be applicable to situations other nize an absolute equality of the father and than those foreseen by the spouses on a the mother in the management of the particular day. family. No one seriously disputes-we re- Besides this process of equalizing the peat-that the wife is an active subject, husband and wife, which we have just ex- a protagonist, and not a mere passive sub- pounded in a general way, another char- ject (at times almost an object) in the acteristic of the change which the family is marriage and in the family; nor does any- undergoing is-as we have said-the fact one deny her a co-participation, to a that the family power is being increasingly greater or lesser degree, in the exercise of understood not so much as a subjective family power. But the problem is more com- right of the parents (which it continues in plicated when it involves spouses with very fact to be), but rather as a duty and a divergent opinions regarding the adminis- function of service. The paternal-filial re- tration of the home and, more precisely, lationship is leaning towards a spirit of with respect to the moral and religious reciprocal understanding and of dialogue, education of the children. The problem is although in not a few instances this has whether the reasoned (non-arbitrary) opin- produced outbreaks of rebellion, with an- ion of the father should ultimately prevail, archical tendencies within the domestic or whether it should defer to a formula community. In one way or another, the which combines the attitudes of both strongly hierarchical and unilateral struc- spouses or supercedes them, through the ture of the family is being sociologically re- intervention of some legal organ outside placed by a more communal and informal the family. The question is found-as we image. shall see-in the majority of existing ju- All this cannot but have repercussions in ridic systems. the concepts of marriage itself and of the Since marriage has an unquestionable home. We are living through the epiphany aspect of a pact or contract resting on the of a new concept of both, latent in many mutual consent of the parties, and since it of the publications of Christian intellec- is related to the juridic-natural principle tuals of our time and, above all, in the dis- of "pacta sunt servanda," an important cussions of the Fathers gathered at the criteria for resolving such marital prob- Second Vatican Council from all over the lems, especially in cases of "mixed reli- world. gion" are the "matrimonial capitulations" Awareness of the personal element in agreed to before the marriage. But it must religiosity is being accentuated; there is a not be forgotten that we are dealing with search for a more lucid, comprehensive a pact sui generis which, however, gives and harmonious relationship between au- birth to an institution with essential roots thority and obedience within the family. that cannot be modified at the will of the There is likewise a very strong emphasis parties. Accordingly, the welfare of the on the functional dimension of family au- family, the spiritual interests of the off- thority. Consequently, there is a blending spring, and the respect for the intimacy of of both the personal and social educative 11 CATHOLIC LAWYER, AUTUMN 1965

rights and duties of the parents with re- lent religion, or a social climate of anti- spect to their children. There is also an religiosity. In this situation, if the husband- inclination toward new forms of liberty of wife relationship is "normal" (relatively teaching within that great public service speaking, since even in homes with the which is education. But, above all (and this greatest peace and security there are dif- is the point that most concerns us) there ferences of temperament and of ideas is a determined advance toward the recog- which affect religious attitudes), the father nition of religious liberty as a natural right and the mother will operate harmoniously of each man and, in consequence, there in the formation of their children and will is a precognizance of reforms in the Canon give them, through their own efforts or Law concerning the requirements in cases through those of freely chosen educators, of mixed marriage and the exercise of the the necessary instruction so that the chil- educative function. dren may also embrace, consciously and It is to be hoped that the declaration on freely, the religious attitudes of their par- religious liberty, which the Council is pre- ents. paring, as well as the schema on the re- From a human point of view, this is the lations of the Church with the modern ideal situation because it creates a more world, will indicate a decisive crystalliza- homogeneous climate of deep communion tion of these currents and will occasion all in supreme values of the spirit and in the Christians to defend the educative liberty transcendent dimension of personal destiny. of parents, and the necessity of respect for In these cases, the function of both the conscience of the children in all the Church and State must be to agree to re- legal systems of the world. spect the legitimate autonomy of the par- Through these enlightening considera- ents in the formation of the souls of their tions (which would actually require children. It is certain that within the broader development), we can synthesize juridic discipline of the , panoramically the tensions and conflicts parents who profess that religion have a which can and do arise within the family very serious moral obligation-according situation, and which specifically concern to what we have seen of the existing Code the problem of the religious education of Canon Law-of baptizing their chil- of the offspring, with respect to the beliefs dren, and of educating them in the faith, of the parents and the normal or abnormal and in general, within the home or in relations between the spouses. Catholic schools. It would not be licit to In order to facilitate this discussion, we permit their attendance at anti-Catholic, shall distinguish the different possible sit- neutral or mixed schools, except when uations: competent ecclesiastic authority tolerates 1) Situations in which father and mother such attendance, in particular circum- are of the same faith or both father and stances and with the exercise of due cau- mother are non-believers. tion. Despite the increasingly pluralistic na- It is clear that when dealing with par- ture of contemporary society, this is per- ents of religions different from Catholi- haps the most ordinary situation, especially cism, i.e., separated Christians or non- in countries where there exists a preva- Christians, the Roman Church, although CONGRESS OF CATHOLIC JURISTS perhaps with difficulty, also respects the intervention of the State, by means of an right of the parents to baptize and to form accredited teaching organization, as is now their children in line with their own be- permitted in a very general way in the liefs, and definitively prohibits anyone be- majority of juridic regulations dealing with ing obliged by force to accept the Catholic the curtailing of abuses against the health faith: Ad amplexandam fidem catholicam or natural morality of children, be licit? nemo invitus cogatur. I think that the answer would have to be In relation to this principle, which we in the affirmative, although any such meas- could call respect for the ideological au- ure would always have to be strictly in- tonomy of parents in relation to their chil- terpreted as a temporary and exceptional dren, we must discuss the delicate and measure, effective only until the parents complex problem of the attitude that the gave guarantees of respect for the con- Church and the State, each one in its own science of the child. order, must adopt in cases where both par- If the marriage relations are disturbed ents are non-believers or, more precisely, and arrive at a breaking point, then the atheists. question arises as to which of the two Since religious values are an essential spouses will continue to. exercise the edu- element of man's integrity, is it not fitting cative function, especially with regard to that the agreement of the father and mother the religious formation of the children. It in this conception of the world and of is obvious that "a priori" solutions can not life should produce an intervention of the be given on this point. In the case of an ecclesiastic or civil authorities on behalf amicable separation, it will be the husband of the children? With some justifiable anx- and wife themselves who will resolve this iety, and submitting my judgment at all difficulty, or it will be, in an extreme sit- times to that of the ecclesiastical Magis- uation, the competent judicial authority terium, it seems to me that it is necessary who will in fact resolve it, bearing in mind to make a distinction. If the incredulity of not only the innocence or culpability of the parents is a mere agnosticism or indif- one or another of the spouses, but also and ference to the religious problem, but does very principally the spiritual interest of not amount to an active intervention the child. against the awakening of religious aware- 2) Situations in which a religious dis- ness in the souls of their children, all au- parity exists. thorities outside the family ought to abstain The problem is more serious when there from intervening, for the rights of the par- is a disparity of beliefs between the hus- ents in the formation of their children be- band and wife, whether they are both of longs to the natural law. In this connec- a positive faith, but of different confes- tion, the words of Pius XI in the Encycli- sions, or whether one of the spouses is a cal, Divini illius Magistri, in which the believer and the other a non-believer or Pontiff makes reference to this right as a an atheist. Here arise the most painful ten- right of all men, seem to me of extraor- sions and those most difficult of solution. dinary importance. In an attempt to illuminate this subject as If the attitude of the parents were that much as possible, we shall distinguish, as of militant atheists, would not a prudent we have done before, "normal" marital re- 11 CATHOLIC LAWYER, AUTUMN 1965 lations from cases involving a disturbance marriages, an issue which continues to be of matrimonial tranquillity. one of our most important problems, hav- In the first case, that is to say, where ing many times caused extremely painful the marriage is harmonious, the pattern obstacles to the contemporary ecumenical for the religious education of the chil- cl'mate. You all know well the present dren will have been established, in princi- traditional attitude of the Catholic Church ple, as we have already mentioned, by the on this point, crystallized in her Code of agreements that the spouses executed on Canon Law (which we shall summarize). this point prior to contracting the marriage. Long and painful experience teaches us Subsidiarily, it will also be controlled by that this type of marriage frequently re- the criteria imposed by the positive law and sults in a grave spiritual crisis for one or by the necessity of securing the spiritual another of the spouses, with a correspond- well-being of the child and the peace of ing effect on the children. This explains the the family. unfavorable attitude of the Church, not Simply from the point of view of natural only the Catholic Church, but frequently reason, it is necessary to eliminate the the Protestant Churches as well. The same possibility of both husband and wife trying dangers can occur, and with even greater to influence contradictorily the spiritual seriousness, if the discrepancy is not be- development of the child, because this tween Christians of different confessions, would occasion a true psychological torture but between a Christian and the believer of the child and a serious threat of indiffer- of a non-Christian religious faith. entism. Rather than risk such a situation, It occurs frequently in the modern secu- it is preferable that the future spouses larized world that one of the spouses retains compromise, if neither is Catholic, with his religiosity, while the other is agnostic respect to the religious formation of the or openly hostile to any form of religiosity. children. That is, they should agree to raise The conflicts can then be extraordinarily the children in line with the belief of one of serious, and in the present climate of re- the spouses, which would not have to nec- spect for the religious liberty of each person essarily be that of the father (whose posi- and, moreover, of gradual recognition of tion of supremacy, as we have seen, is in joint authority of the father and the mother a process of transformation). While living in the education of the children, it does together, the spouses should respect such not seem just that the criteria for solution an agreement in order to avoid the greater should always be one of the predomi- damage that an active conflict of the dis- nance of the will of the father or the pre- crepant religious attitudes of the parents dominance of the Catholic spouse. Rather, would produce in the soul of the child. we should attempt to arrive at a more Acquiring his own criteria, through his flexible formula for the pastoral interven- reason and his personality, the child can tion of the Churches to which the spouses then choose which parental religion satis- belong, above all, if both are Christian. fies the deep yearnings of his own heart. Finally, in the most difficult cases, this The case is different when one of the should include a moderate intervention of spouses is Catholic. We here confront the the State by means of competent judicial most difficult question of mixed religious or educative authority. CONGRESS OF CATHOLIC JURISTS

In the case of families with internal re- with the husband in securing the moral and ligious plurality, if a separation or break material administration of the family, in occurs, there would be no other remedy providing for its sustenance, in educating than to confide in the State (by means of the children, and in preparing them for the competent judicial authority, or better, their professions in life; she even replaces by means of an educational organ) the the husband "in his function as head of the establishment of the patterns for the edu- family" in those cases in which the husband cation of the children who remain in the is incapacitated, absent, far from the home custody of one or the other of the spouses, or for any other reason incapable of per- according to their relative degree of inno- forming his function. cence or guilt, but attending always princi- The said Law of 1942 also modified the pally to the welfare of the offspring. old article 373, and established that author- ity over the children "belongs to the father Present Juridic Perspectives and to the mother" and, although the father exercises it during the marriage in his role Existing Positive Law as head of the family, it, nevertheless, As we already stated, in describing these could be passed to the mother in those tensions, the civil codes of the past century, cases in which the father forfeits his rights stemming from the French Code of 1803, (according to the Law of July 24, 1889), are based in large measure on the "Roman either having been condemned for aban- image" of paternal authority, with a sub- doning the family or having in effect aban- ordinate or subsidiary authority for the doned his authority. Furthermore, it should mother. In fact, in the first edition of article be borne in mind that the preamble to the 213 of the Napoleonic Code, it was said, French Constitution of the Fifth Republic laconically: "the husband must protect his (September 28, 1958) strongly emphasizes wife, and the wife must obey her husband." the equality of rights of man and woman. In the same vein, and with reference to the This cannot help but influence the inter- education of the children, article 373 of pretation that is otherwise given to the text the same Code, in its original form, estab- of the Code. lished with no less a monopolistic spirit, A similar evolutionary process has oc- that "only the father exercises this author- curred in Italy. The existing Code, which ity [authority over minor or unemanci- remains substantially the Rocco Code, of pated children] during the marriage." 1942, notwithstanding its relatively recent However, through the influence of exi- date, maintains a traditional position on gencies newly revealed to the human con- this matter. In effect, after stating that the science, reforms have been introduced child is subject to the authority of his since 1938, which crystallized, above all, parents until coming of age or emancipa- in the Law of the 23rd of July, 1942. Pur- tion, it emphasizes that this authority is suant to it, the original article 213 was exercised by the father, and only after his changed to read that the father is the head death (or in other circumstances estab- of the family and exercises this function in lished by law) by the mother (articles 316 the "common interest of the home and of and 317). Nevertheless, the same Code, the children." But the woman now concurs on the regulation of marriage, states that 11 CATHOLIC LAWYER, AUTUMN 1965 this "imposes on both husband and wife the Civil Code remains in effect. How- the obligation of maintaining, educating ever, others defend a contrary interpreta- and instructing the offspring," and adds tion. They appear to be supported by sev- that "such education and instruction must eral legal decisions and invoke, in reference conform to the principles of morality" to education, article 147 of the Code and (article 147). article 30 of the Constitution, which estab- Prior to the adoption of the new Consti- lish the instruction and education of the tution of the Republic (December 27, children as a right and a duty of both par- 1947), many commentators were inclined ents (speaking of them in the plural and to maintain the principle which we could without distinction as to sex). call "predominance or priority" of the pa- On the whole, it can be said that Italian ternal power, even in the area of education jurisprudence looks toward formulae which of the children, when differences arose in harmonize the unity of the family, on one the home. Their purpose was to preserve hand, with respect for the rights of the the unity of the family, without attempting mother and the welfare of the children, in any way to eliminate a very active par- on the other. Of course, in cases of very ticipation of the mother in the entire edu- serious disparity, it may be necessary to cative process, above all in the religious resort to the limited intervention of judi- and moral areas. cial organs of a tutelar character. The promulgation of this Constitution With regard to Spain, we are faced with has promoted the tendency of "equaliza- a problem which is in some aspects the tion," as we would call it, since it is the same, but set in the rather unique context concept which inspires the generic principle of its juridico-political system. The Civil of identical social dignity and of equality Code of 1889, strongly influenced, as is of all citizens before the law, "without dis- well known, by the French Code, estab- tinction as to sex" (article 3). Moreover, lishes a system pursuant to which a domi- and very precisely, the Constitution of nant authority is given to the father and a 1947 establishes that "the marriage will be subsidiary role to the mother. The Code governed by the moral and juridic equality provides that "the father and, in his of the spouses," with limitations established absence, the mother, have authority over by the law for safeguarding the family their legitimate unemancipated children; unity (article 29). and the children must obey them while The sharp juridic spirit that has always remaining in their household and must al- characterized the Italian people is taking ways give them respect and obedience" this opportunity to develop a fine debate (article 154). concerning the scope of these constitutional More precisely, and again within this declarations and their influence on precepts hierarchical context, the Code establishes of the Civil Code. Some jurists, basing that the father and, in his absence, the themselves precisely on the language of the mother, have, with respect to their minor Second Paragraph of article 29 (concern- children, the duty of feeding them, caring ing the establishment of limitations in the for them, educating and instructing them. law in order to "guarantee family unity"), They also have the authority to correct and are inclined to maintain that article 316 of reasonably chastise them, including the CONGRESS OF CATHOLIC JURISTS right to solicit the aid of such government- have an identical right and should partici- al or judicial authority as the case may pate in a joint mission. In cases of serious require (articles 155 to 157). differences between the spouses, it will be Certain observations must be made the competent judicial authority which will which point toward a more liberal inter- definitively and fairly decide the issues pretation of these precepts and a more involved, considering the conduct of each adequate understanding of them. In the of the spouses and the welfare of the child. first place, it is important to note that, with- W-th regard to the treatment of this sub- in the Spanish judicial tradition, from the ject in other countries, it is interesting to Visigothic Period through the entire M~ddle po'nt out the prevalence of that tendency Ages, we find parental authority exercised which favors a joint or equal authority of jointly by the spouses. This has been the parents in matters concerning the pointed out in the important works of Pro- children. In Portugal, the Civll Code pro- fessors Urena, Gisbert and others, and vides that the mother should participate in there is a vestige of this tradition in statu- the paternal power, and must be heard in tory laws, especially in Aragon, Navarre, all matters involving the interests of the and Vizcaya. children. However, during the marriage, Moreover, there are many Code com- it is the father, as head of the family, who mentators who are inclined to recognize an exercises, in a special way, this authority active and authentic participation on the over and protection of the children (article part of the mother and a joint right with 138). the father in the education of the children In Switzerland, the Code of 1907 de- (although, in other areas, especially with clares explicitly that "the father and the regard to the juridic representation of the mother exercise jointly the parental author- children, the father prevails, while living ity during the marriage," but adds that, and otherwise retaining his authority). in cases of disagreement, "the decision of In any case, there is a growing tendency the father will prevail" (article 274). among Spanish jurists to recognize the In countries having an Anglo-Saxon necessity for a modification of the Code on heritage, there is an increasing tendency this point, so as to emphasize the participa- toward an equality of the parents in matters tion of the mother in the exercise of paren- regarding the education of the children, tal authority, and in order to facilitate more with primary attention given to the inter- equitable solutions in cases of disagreement ests of the latter. Such is the case in Great between the spouses concerning, above Britain and in the United States of all, the education of the children. America. This tendency is reinforced by the fact In the area of Canon Law, it is necessary that the Fuero de Los Espanoles of 1945, to distinguish the generic principle of the states, in plural form, that "the parents are joint participation of the parents in the obliged to feed, educate and instruct their education of the children, on the one hand, children" (article 23). Since this language from the particular case of mixed marri- is neither hierarchical nor discriminatory, ages, on the other. With regard to the as between the spouses, and since they are first aspect of the problem, the Code of said to have an equal duty, they must also 1917, while in line with the traditional 11 CATHOLIC LAWYER, AUTUMN 1965 concept of the family, points out that the marriage is illicit if there is danger of per- educative function pertains jointly to the version of the Catholic spouse or of the father and the mother. Canon 1113 states, offspring. The Church "severely prohibits" in the plural, that "the parents have the such marriages, and only dispenses from very serious obligation of procuring an this impediment for just and serious causes, education for their children." Conse- and on the basis that the non-Catholic quently, a sensu contrario, it must be con- spouse must give guarantees of not expos- cluded that they have a joint right to fulfill ing his Catholic spouse to dangers of per- that duty. version. Moreover, both spouses guarantee However, what happens if disputes arise that all the children will be baptized and regarding the religious education of the educated in the Catholic religion alone. children? Will the father, as head of the These promises must be given in writing family, resolve them? Up to now, the solu- and there must be a moral certainty that tion provided by the Code has been what they will in fact be fulfilled. Furthermore, we could call the "principle of favoring there is a prohibition against approaching the Catholic faith." a minister of a non-Catholic sect, whether In cases of disputes in a marriage in- before or after the Catholic marriage cere- volving a Catholic party, the educative mony, for the purpose of receiving matri- criteria of the Catholic spouse had to pre- monial consent or authorization. In addi- vail, unless the competent ecclesiastical tion, the proper ecclesiastical authorities authorities had decided otherwise in the must give careful attention to the perform- interests of the children. We may infer ance of the promises made by the spouses. that this would apply to difficulties in- All these requirements are equally ap- volving the separation of the spouses and plicable to the marriage of Catholic per- custody of the children. In fact, one of sons with those who have notoriously aban- the causes of such separations, according doned the faith, although they are not to the Code, is precisely the fact that "one affiliated with a non-Catholic sect; and of the spouses gives his name to a non- with those who have given their names to Catholic sect or gives the children a non- associations condemned by the Church. Catholic education." Once the separation Since this Canonic norm remains in is in effect, "the children must be educated effect and unmodified, it is evident that in according to the beliefs of the innocent case of a difference between the spouses spouse and if one of the, spouses is non- concerning the religious formation of the Catholic, according to -the views of the children, the educative rights of the Cath- Catholic spouse, provided in either case olic spouse would have to prevail, regard- that the Ordinary has not decreed some- less of whether the father or the mother thing else, attending always to the welfare were the Catholic party (which alone of the children and the preservation of causes serious problems). In cases of their Catholic education." The same prin- marital separation, however, there is one ciple still inspires the rules concerning very important exception. These regula- "mixed marriages." tions apply only so long as competent ec- In the Code of Canon Law, it is under- clesiastical authority has not decreed other- stood that, as a matter of Divine Law, a wise, for the benefit of the children and CONGRESS OF CATHOLIC JURISTS the preservation of their Catholic educa- according to their religious and philosophi- tion. cal convictions is spoken of in the plural. The Conciliar climate has brought about a very decisive transformation in this area Tensions Between the Child and as well as in others. In the Third Session His Parents Regarding His Religious of the Second Vatican Council, the Fathers Education sent a message to the Pope, urging him to modify, through his supreme authority, the When there is discord or discrepancy in existing legislation on this matter. They the religious area between the parents and specifically asked that the non-Catholic the child, there arise new and painful dif- spouse be exempted from the necessity ficulties. In principle, the parents have at of educating his or her children in the once a duty and the right to direct their Catholic religion. Although that obligation child in all aspects of his education, espe- would remain with the Catholic spouse, cially in the moral and religious areas. he should only be required to remain On this point, there is substantial agree- faithful to his conscience, rather than to ment among Catholic and non-Catholic the existing requirements of Canon Law. theologians, and with the major portion Without eliminating the problem en- of existing legislation. Even those who criti- tirely, this will alleviate any excessive psy- cize most severely the traditional concepts chological burdens, and will, perhaps, of parental authority recognize that it is make it possible for the spouses to respect the parents who control the spiritual de- the interior peace of the souls of their velopment of their minor children and that children. it is not licit for their educative function to In the international field, the principle be opposed without serious cause. of the identical dignity, worth and equality It is certain that one's religious life is of rights of men and women has been de- at all times something intimate, untrans- cisively applied. Language to this effect ap- ferable, intensely personal-one does not pears in the Preamble and in article I, inherit a faith as one inherits certain so- paragraph 3 of the Charter of the United matic conditions, temperament or national- Nations, adopted at San Francisco on June ity. All authentic religiosity passes sooner or 26, 1945. The Universal Declaration of later through a crisis, through a real proc- the Rights of Man (1948) establishes the ess of conversion in which the child, and same criteria. More concretely and pre- especially, the adolescent overcomes the cisely with reference to education, it pro- "social phase" of his religious life, as some- vides (in the plural and non-hierarchically) thing received from without, and becomes that "the parents have the prior right to conscious of its drama-the drama of Re- choose the kind of education their chil- demption-which is the dialogue of the dren are to receive" (article 26, paragraph soul with God. A temporary loss of faith 3). Similar criteria were adopted in the often occurs at that critical moment. It is European Agreement for the Safeguarding a risk of human freedom, a risk which God of the Rights and Fundamental Liberties permits in order that the path toward Him of Man, where the mission of the parents be always traveled in love and understand- in educating and instructing their children ing. Those who are entrusted with the care 11 CATHOLIC LAWYER, AUTUMN 1965

of souls and those who dictate the juridic Finally, the development of moral and norms that regulate collective life can not religious teachings on this subject has been approach this reality with rigid and in- influenced to a great extent by deep psy- flexible categories. chological and psychiatric studies, and the With regard to the child of agnostic or consequent growing awareness of the need atheistic parents, who one day feels in his for respecting the conscience of all human heart the call of the faith, or another who, beings, regardless of their age. This does educated in an environment of Catholic re- not mean that parents, or those who act ligiosity, falls away from the faith at a on their behalf, should abandon their edu- particular moment in his development and cative mission and blindly submit in all embraces indifference or another religious cases. Nor does it mean that they must conviction, it is necessary to provide some forego any attempt to influence the spiritual kind of tutelage or direction, with the least formation of the child. It simply means that possible damage to the peace of the family. any such formation must be accomplished In these always painful situations, which without interfering with the free develop- is to prevail, the educative mission of the ment of the child's conscience, with lov- parents or the independence of the child? ing tact and deep respect for the growing We are aware that we here touch on one personality of the child. of the most delicate aspects of the problem His Holiness, Paul VI, has spoken of we are examining. this subject: The problem has become especially If the educator were to confine his activ- acute in our time, not only because the ity solely to a patient, meticulous and, if conditions of modern life facilitate and you wish, scientific examination of the en- vironment in which the even instigate, at times, the assumption child develops to- day, realizes his experience and shapes his by the child of an attitude of autonomy personality, it would not be a complete job. with respect to the family, but also because There would be a danger that the educator, the human conscience has become increas- admired of the phenomenology of the en- ingly aware of the necessity of respecting vironment, would accept it as it is, would the dignity of the child. The child can never describe it very well and would classify it according to very beautiful categories, but be considered as a mere "object" of edu- would do little or nothing to modify that cation, or as an "instrument" at the ser- environment and its consequent phe- vice of the family. Rather, he must be nomena. He would conclude in accepting treated as a person, as a protagonist in the them or, even, in defending them as an family community, as a future citizen and, expression of our times. We think, for ex- ample, that to simply describe finally, as an image of God, equal to his the environ- ment whose spectacle surrounds the child parents. is not enough. The educator is not a pas- Furthermore, we modify our position sive observer of the phenomena of juvenile ever more deeply as we come to under- life; he must be a friend, a teacher, a train- stand the meaning of the dialectic relation er, a healer, a father who is not so much between authority and liberty within the interested in knowing the behaviour of his pupil in a given set of circumstances, but home, between command and dialogue, rather in preserving him from useless of- and between hierarchy and integration in a fenses and in teaching him how to love, "communal friendship." enjoy life and sublimate his experience.... CONGRESS OF CATHOLIC JURISTS

This is because the environment, by itself, jected into this family dialogue, except in does not make men. There is nothing like extreme cases of brutality, i.e., of authentic rebellious youth, with little understanding abuses of parental rights, when the State, of the precepts of the past, especially those closest to them, imitatively adoring instead by means of adequate educative organs or that which is fashionable and new. Wake institutions, must intervene. up in these young souls the ability to judge, In the second phase of child develop- to free themselves and to find their identity ment, tensions can, and in fact do, multiply as human beings and not as numbers in a in the majority of families. This is the age crowd. when the individual, through his studies, The tensions that these factors give rise is first exposed to half truths. The unsus- to can be very complex and consequently pected horizons of life roll back and his there is a need for flexible formulae within energies grow on all levels. Anxieties and indispensable guarantees of "juridic se- emotional difficulties begin to occur. This curity." all happens when the mystery of life first Subject to a degree of relativity essen- begins to reveal itself and, above all, when tial to any compartmentalization of man's he enters a university or other institution psychological evolution, it can be said of higher learning. His personality is form- that the first period of a child's life (some- ing and his character is asserting itself, thing almost prejuridic) embraces the first while the tremendous adventure of his per- seven years of his existence, i.e., from birth sonal conscience is beginning. It is then to the age when it can be said that he ac- that the most difficult and, at times, most quires self-awareness and the full use of violent conflicts arise within the home, es- his reason. During this phase, there are pecially if the parents seek to remedy the obviously moments of tension and discord, situation through an assertion of their own but these are of an instinctive or tempera- will, an application of their own criteria mental rather than ideological character. and, perhaps, resort to sanctions. There During these years, the educative mission are, after all, two equally sacred and un- of the parents and especially of the mother deniable rights involved in these situations: can and must be exercised to its fullest the right, duty and function of parents in extent, above all in the areas of moral and the education of their children and in form- religious formation. This does not mean ing them religiously according to their own that she should impose physical or moral faith; and the right of the child to a free violence on the child, the vestiges of which conscience and a free quest for his destiny. remain forever in the deep psyche of the The legislator can not remain indifferent child. On the contrary, the educative mis- to these conflicts, especially if there is a sion is to be accomplished by means of difference not only as between the parents moral stimulants which cause a religious and the child, but also between the parents, awareness to form in the soul of the child, regarding the attitude which they should such that it will make the religious beliefs adopt. As in the other instances discussed, of its parents its own. the intervention of the State must be sub- It would be contrary to reason and sidiary. At the request of either of the seriously injurious to the rights of the parents or of the child, it will have to take parents if foreign elements were to be in- action at a given moment and, by means 11 CATHOLIC LAWYER, AUTUMN 1965

of an appropriate administrative body, at- already seen-fix no time limits on the tempt to mitigate, as much as possible, the right and the "very serious obligation" damage resulting from the conflict. Of that the parents have of procuring a re- course, it will be necessary to estimate ligious and moral education for their chil- what we would call the child's age of "re- dren. It seems implicit in Canons 1372 ligious majority." to 1382 that the educative mission of the parents, with regard to the spiritual forma- Present Juridic Perspectives tion of their children, continues until the Existing Positive Law latter enter the university, i.e., practically Until the present moment, it has not until they leave the family home. been possible for us to gather information In the international sphere, it is neces- dealing with the paternal-filial conflicts in sary to say, in the first place, that the rec- regard to education so that an adequate ognition of the rights of the human being, picture of the juridic situation in the prin- especially the right to an education and the cipal countries of the world might be pre- right to religious liberty, is stated in exist- sented. Therefore, we shall now attempt to ing texts without any discrimination as to point out some basic considerations in age (The San Francisco Charter, The summary form, subject, of course, to such Universal Declaration of the Rights of additional material as the members of this Man of 1948, and The European Agree- Congress are able to provide. ment of 1950-52). Thus, the rights of 1) Until the child comes of age (which, "minors" in this area are recognized, es- as you know, is generally fixed between pecially when parents or other educators the ages of 18 and 23), the usual rule is abuse their authority. Moreover, the prin- that the decision of the parents will prevail ciples contained in the Charter or "Declar- with respect to his moral and religious ation of the Rights of the Child," already formation. cited as approved by the General Assembly 2) The intervention of an educative or- of the United Nations on November 20, gan or of the competent judicial authority 1959 (which referred to and amplified the is provided for in cases where the parents principles previously announced in the have seriously abused their authority in Declaration of Geneva of the League of the area of the child's religious education Nations of 1929) merit new and special or in any other area. mention. According to the Declaration, the 3) In order to minimize the harm child enjoys all the human rights gener- that results from a psychological-religious ically proclaimed in previous texts and, break in the educative process, it is espe- among still others, the following: cially important to bear in mind the in- (1) The right to a special protection and terests and well-being of the child when all means necessary for his healthy tension or conflict results from a change in and normal development, under con- the religion or ideology of the parents ditions of freedom and dignity; during the child's formative years. (2) The right to such special treatment, As concerns the presently effective posi- education and care as is necessary in tive law of the Catholic Church, Canons cases of under-privileged or under- 113 and 1372 of the Code-as we have developed children; CONGRESS OF CATHOLIC JURISTS

(3) The right to develop in an atmosphere adequate level of understanding, his wishes of affection and of moral security must be considered and, in either case, the and, to whatever extent possible, competent authorities must be guided in under the guidance and care of his their decisions by what is in the best in- parents; terests of the child." (4) The right to a free and obligatory edu- cation, at least on the elementary Epilogue level; which education must contribute By way of recapitulation and, in a cer- to his general cultural growth and, tain sense, as a basis for any legislative under conditions of complete equality enactment (and, until its promulgation, as of opportunity, to the development a decalogue of exigencies for the con- of his faculties, his personal judgment science of Christian jurists), we dare to and his sense of moral and social re- suggest the following conclusions: sponsibility; (1) All the nations of the world must (5) The right to be protected from any formally recognize and guarantee the ex- form of negligence, cruelty or exploi- ercise of the right of religious liberty for tation; all men, in the spirit of the Second Vatican (6) The right to be protected from any Council. They must likewise guarantee the discriminatory practices whatsoever, liberty of teaching, understood in a two- and of being educated in a spirit of fold sense-the right to establish educa- understanding, tolerance and friend- tional institutions on all grade levels (con- ship among peoples. forming, of course, to the necessary moral Despite the significance of the above and pedagogical requirements), and the "Declaration," which was approved unani- right to teach in these schools such scien- mously, it must be remembered that it tific, ethical and religious disciplines as cor- ranks merely as a "recommendation." Con- respond to the current cultural level of the sequently, the principles announced there- society, the beliefs of the institution's in remain to be reinforced by a text bind- founders and the proper conscience of the ing on all nations. It is natural, therefore, educators. that the subject we are dealing with has (2) In order that these rights be made been discussed in connection with the pro- effective, States must eliminate from their posed "Agreement for the Elimination of respective internal legislation all existing All Forms of Religious Intolerance," obstacles to their exercise. Any exceptions which, as we have indicated, is currently in this area must be carefully enumerated under consideration. The text which was as necessary, within the spirit of a demo- approved in principle last January, at cratic society, for the prevention of in- Geneva, provides, in its Fourth Article, jury to the rights of others or to the public that the signatory States will respect the morality or the common good (correctly primary right of parents, or those who understood as the sum of social conditions act on their behalf, in the selection of a that make possible the fullest expansion of religion or beliefs for the child. However, the human personality). it also states that, when the child "has (3) Similarly, the States must facilitate achieved sufficient use of his reason or an the exercise of the twofold liberty of teach- 11 CATHOLIC LAWYER, AUTUMN 1965 ing, both institutional and academic, sider the "matrimonial capitulations" through subsidizing all schools, both pri- agreed to by the spouses prior to the mar- vate and public, in accord with the prin- riage, but subordinating them always to ciples of distributive justice and without that which appears most conducive to the any discrimination whatsoever. peace of the family and the well-being of (4) In the relations of the State with the the children. family, the principle of the legitimate au- (8) Analogous norms are to be applied tonomy of the latter must prevail, with no in cases of conflict between the parents, on more intervention of the public authority the one hand, and the child, on the other, than is absolutely necessary in cases of concerning his religious education, attempt- grave abuses on the part of the parents. ing as much as possible to resolve such (5) The role of educating the children problems from within the family circle, pertains jointly to the father and the without any outside interference. However, mother, without any discrimination. Both in extraordinary cases, a path must be left spouses must, therefore, harmonize their open for the peaceful intervention of the views so as to avoid the harm that results particular State or Church involved in the from conflicts regarding the purposes and dispute. methods involved in the moral and re- (9) These criteria must be applied, with ligious education of the children. any appropriate adaptation, to the edu- and differences (6) In case of disputes cative mission of adoptive parents, tutors, between the spouses with respect to the teachers and godparents, within their education of the children, beyond those respective areas of activity. normally involved in domestic affairs, a moderate and reasonable intervention of (10) Resolutions of the United Nations, the State, in a primarily educative form, or of regional international organizations will be permitted, subject to the principle must establish the appropriate judicial of subsidiarity. means toward an efficacious protection of (7) For the equitable solution of such these rights and liberties before an inde- intramarital conflicts, the State will con- pendent administration of justice.