THE CONQUEST OF THE RIGHT TO EDUCATION

       the conquest of the right to education

Today, in the majority of the countries of the world, it is the school which ensures the education of all the children. This  school for all  is public, free and obligatory. But it is the case only since the end of  the xix ^E century: previously, the instruction was reserved to privileged people, with an elite, and the school for all spent time to be essential. The history of the school can thus be regarded as  a conquest of the right to education.

This right to education, recognized nowadays like  a right of the child, however is not guaranteed in the whole world. There are very great inequalities between the rich countries and the poor countries in the access to the education which they are able to offer.

1.   NEED FOR TRANSMITTING ALWAYS EXISTED KNOWLEDGE A

In the old companies, it is the group which ensures the transmission of knowledge and the rules of life young people. What is significant, it is that the savoirs are transmitted of one generation to the other, and that the entire group benefits from the knowledge of each one. The training is done on the mode of the imitation  and by rites of initiation. It rests primarily on the word, on  the oral tradition  (nothing is written). 

The transmission of the savoirs plays a fundamental role in  the cohesion of the group.

2.   The SCHOOL IS BORN WITH the WRITING 

The school is born with the appearance of the writing, 5 000 years ago. The writing makes it possible to fix the savoirs and the principles of life which the men want to transmit to the following generations. 

The first systems of education  appear in the great empires which are born in Egypt, India and China. The leaders of these great empires need  civils servant trained  to help them  to ensure the stability  of their country. Economic prosperity and the needs for the administration thus allow the installation  of specialized agencies  whose role is to transmit knowledge: the school was born. 

3.   THE FIRST SCHOOLS EXEMPT A RELIGIOUS TEACHING WITH THE PRIVILEGED PEOPLE

In addition to teaching of the reading and writing, the first schools teach the religious and philosophical principles. The lesson is indeed a primarily monk and it is generally  to the priests  that is entrusted the responsibility to preserve and to transmit the knowledge. 

The lesson "is sacrilized ": it is impossible to criticize them or to modify them. The pupils must generally  learn by heart. The school worries little about the intellectual development of each one. 

Moreover, nothing are planned for the poor, which do not have to exert responsibilities, nor for the girls, whose traditional role is confined within the framework of the house.

4.   The GREEK PHILOSOPHERS EMPHASIZE The TRAINING OF The INDIVIDUAL AND The CITIZEN

The first reflexions on what must be the school are born in Greece during Antiquity. Many schools of philosophy are open. Their objective is not only any more to inculcate preestablished savoirs, but more especially to lead the pupils  to reflect  and  to make progress knowledge. The first true  programs of teaching  are thus set up in Greece, then in Rome. It is as of this time as date teaching division in three degrees: primary education, secondary, academic.

For the Greek philosopher  Socrate, for example, all the defects come from ignorance. It is thus significant to train all the men "Knows oneself, yourself", likes it to repeat. For him, knowledge is not in the books, it is built by the reasoning and the contact with the direct teaching of a Master. This method is a revolution because it makes  confidence with the intelligence more than with the memory.

For Socrate and its successors (such as  Plato  and  Aristote), it is also necessary  to train citizens  able to exert the democracy.

The generous principles of the Greek thought should not however make forget its  great elitism: teaching is always reserved for a small number of individuals.

5.   THE FIRST UNIVERSITIES APPEAR WITH THE MIDDLE AGES

With the Middle Ages, the strength of teaching dies out a little everywhere in the whole of the Western Christian world: knowledge is locked up again behind the walls of the monasteries.

However, starting from  the xi ^E century, is born a new dash for the studies, in particular thanks to philosophers and theologists like Pierre Abélard and especially  holy Thomas d' Aquin. It is at the time medieval that the higher education starts to be released from the control of the Church, and that the first universities  are founded  (Oxford in 1133, Salamanque in 1218, Sorbonne in 1257, Cambridge in 1284, Montpellier in 1289, Bologna in 1317, Heidelberg in 1386, etc).

In parallel also with the Middle Ages the vocational training  develops, through the corporations where côtoient themselves main, companions and  apprentices.

6.   The HUMANISTIC Ones AND The PHILOSOPHERS OF The LIGHTS PREACH A NEW VISION OF EDUCATION

To the xvi ^E century, the humanistic ones rediscover the authors of Antiquity and defend the idea that it is the man, and not God, who must occupy the central position in the world. The design of teaching is of course upset by these new ideas, whose very recent printing works allows the broad diffusion.

Writers like Montaigne and Rabelais thus preach  a new vision of education, at the same time in its objective and its methods, like in its ambition. It is about  a complete formation  (all arts, all sciences, but also the body), also turned towards  the blooming of the individual. Concretely however, besides some initiatives local which try to apply the new ideas, teaching hardly changes.

To the xviii ^E century,  philosophers  as Rousseau  criticize the traditional methods of teaching. They think that each pupil should be able to discover the knowledge, freely and  without constraint. Other philosophers insist especially on the importance of the broadest teaching and  most ambitious  possible, so that each individual can carry out his potential within the company and take part in  the political life.

7.   The FRENCH REVOLUTION AFFIRMS the IDEA OF The SCHOOL FOR ALL

It is in this context that in 1789 the French revolution  takes place. Among the revolutionists, those which are in favour of the democracy preach also the installation  of the school for all. The majority of the ideas which will make it possible to build the modern school are thus expressed for the revolutionary period:

–the instruction is essential for the democracy. It must be addressed to all the individuals without exception, including the girls. It must thus be free and obligatory;

–the instruction concerns  the responsibility for the State. It must be public and laic and nonprivate and denominational (i.e. religious). The professors must thus be civils servant of the State, specifically trained for their function.

However, the revolutionary government does not manage to apply these ideas. It is finally  Napoleon,  at the beginning of  the xix ^E century, which creates secondary and university education public. However, primary education teaching remains private and paying essentially, always with the load of the Church. The majority of the modest children of families are constrained to work with the factory.

8.   THE INDUSTRIAL REVOLUTION CREATES A REQUEST FOR FORMATION

To the xix ^E century, technical progress and increasing industrialization radically change the needs for the European companies as regards education. Up to that point, the majority of the economic activities did not require semi-skilled labour. From now on, the companies need to recruit better and better trained workmen and executives, and the State, if he wants to accompany the economic advancement by the country, must answer effectively this  request for formation.

9.   The LAWS JULES FERRY FOUND the PUBLIC SCHOOL, FREE AND OBLIGATORY

In France, the reforms favorable to the introduction of the school for all take place throughout xix ^E  century, and in particular  III ^E République  (1870-1940). They lead to the adoption of the laws Jules Ferry (1880-1882) which issue a public primary school , laic, free and obligatory, for the girls as for the boys.

Thus, at the end of the xix ^E century, the ideas of the French revolution are converted into  a right to the elementary instruction. Illiteracy regresses quickly in France. The other countries of Europe follow at the same period a comparable evolution. Exemption from payment of the college, then college, is essential in the years 1930.

10.               The RIGHT To EDUCATION BECOMES A HUMAN RIGHT AND A RIGHT OF The CHILD

The right to education is finally recognized in France and in the world to the medium of  the xx ^E century. One attends  a democratization of the studies.

It remains however much to make, in particular to reduce  the inequalities of the chances, in particular in the secondary and for the access to the higher studies, to accomodate the handicapped children and to support those in great difficulty of training. In the same way, if the school school and works are free with the primary education as with the secondary, the access to the culture (books, museums, etc.) is not it. Finally, certain children leave the school with an insufficient luggage to allow them to fit in the company and to express their potential there.

At the dawn of the III ^E thousand-year-old, the school for all the children of the world is still not a reality. To make so that all the children of the world, girls like boys, have access to a primary education teaching and have equal chances to enter the secondary, as the International Convention  of the rights of the child envisages it  is one of the priorities of UNO and its agency which is devoted to childhood, Unicef: it is a stake of  international solidarity.

LAW OF THE HUMAN

                          law of the human

1		PRESENTATION

Declaration of the rights of man and of the citizen

Spades, beams and Phrygian cap fall under the revolutionary symbolic system, which multiplies the references to Antiquity. The top of the table, the figure of France breaking the chains of oppression answers the winged Freedom whose sceptre is pointed towards the radiating triangle of the Equality, in the center of which the eye incarne the Vigilance.Jean-Jacques François the Barber (allotted to), Declaration of the rights of man and of the citizen [ 1789 ], "Monarchy, holding the broken chains of Tyranny, and the genius of the Nation, holding the spectrum of the capacity, surround the preamble of the declaration", end of the xviii E century. Oil on wood, 71 × 56 cm. Museum Carnavalet, Paris.

humans right, together of the basic rights inherent in the human nature.

Resulting from the designs of the natural right, which melt their philosophical statute, the humans right were the subject of a progressive recognition in substantive law since the proclamation of the Declaration of the rights of man and of the citizen by the French revolutionists in 1789. This recognition results today in increased jurisdictional protection a as well at the European level as at the national level. Indeed, of many States, whose France, obtained mechanisms supporting the recourse in front of the judge in the event of attack to the humans right such as they are guaranteed by the texts of international significance.

2

AN IDEA DEVOTED BY PHILOSOPHY

2. 1

Origins of the humans right

If the design of the humans right derives essentially from the theories from the natural right, it however also borrows from those of the "historical right". Founded by  the Treaty of the right of the war and the peace  (1625) of Hugo Grotius, in particular developed by the totalitarian vision of  Léviathan  (1651) of Thomas Hobbes and by the democratic theories of  the social Contract  (1762) of Jean-Jacques Rousseau, the natural right is based on the abstract figure of the individual to the state of nature and on the concept, variously interpreted, of "social contract". Beyond their oppositions, the feature common to all the designs jusnaturalists, concerned by Pufendorf (1632-1694) in its study  Swears Naturae and Gentium  ("natural right and law of nations", 1672), is to give to the capacity an undeniable rational base which makes it possible to the individuals to escape arbitrary and to find spaces of freedoms.

The theorists of the historical right did not design the State like a machine, made independent wheels, but rather like an organization, fact of members and bodies which can exist and develop only because they are primarily related the ones to the others. Defended in Germany by Savigny (1779-1861), the school of the historical right posed in theory that it was not "any human existence which fully singular and is isolated perfectly". The historical right did not pose the problems in term of social contract or association, but in term of institution, possibilities of integration, or "right of resistance" of the citizen to the social pressure. It brought to the designs humans right the idea that the institutions proceeded of the habit more often than of the reflexion, and than the individuals could exert a determining influence on their evolution.

2. 2

Definition of a universal community

In the history, the idea that one was done rights of each one varied according to times'. The Romans founded certainly a whole of rights, but their pleasure was exclusively reserved to the citizens. The feudal order distinguished between the rights of the lords and those of the commoners, organizing a company where the rights which each one held were related directly to its social state. A long time one limited the recognition of the rights to the membership. The idea that the individuals can recognize themselves in a community vaster than that of the nations or ethnos groups is relatively recent.It echoes the diffusion of the accounts of voyage and with discovered other people, and gave place to an awakening only with the diffusion of the spirit of the Lights, if one excludes Las Put.

In Base of the metaphysics of manners  (1785), Kant managed to state the philosophical principle on which were grafted the whole of the humans right. Humanity must always be also treated "like an end, and never simply like a means". While abstaining from any cultural or religious reference, to speak only about the man, the thought was detached from particularisms to aim to the universality. Its essential contribution consists, according to words' of Simone Weil, to push back, in the public affairs, temptation to consider that "the community is above human being".

2. 3

Critical of the humans right

Marx, who underlined the difference existing between formal freedoms and real freedoms, reproached the concept of humans right to limit itself to an "egoistic" design of the individual interests, based on the right of ownership and the theoretical opposition between the individual and the company. The evolution of the means of production and communication in the contemporary world reinforced the weight of this criticism by underlining the inequalities between the men. It is to be noticed, however, that the critic Marxist, expressed in particular in  the Jewish Question  (1843), did not relate to the idea even of the humans right, but on the interpretation which had been done by it in the American Constitution and in those which claim heritage of the French revolution.

3		A POSITIVE LEGAL PRINCIPLE

3. 1

Bases of the legislation of the humans right

The large text of reference is the Declaration of the rights of man and of the citizen of 27 August 1789, rich of seventeen articles, which solemnly proclaims a certain number of basic rights. The Declaration of 1789 finds its origin, not only in the designs of the natural right, but also in a certain tradition of the Christianity, which makes Gospels the base of an egalitarian philosophy. In a very different way, these two currents however allowed the evolution of mentalities towards the recognition of rights attached to quality of Man. More directly, the writings of the philosophers of the Lights, such Jean-Jacques Rousseau, in particular his famous work entitled  Of the social contract  (1762), as well as the Declaration of independence of July 4, 1776, written by Thomas Jefferson, and the Declaration of the Capital duties of the State of Virginia of June 12, 1776, constituted the essence of the inspiration of the revolutionists of 1789.

The Declaration of 1789 thus indicates which are the rights inherent in the human nature, which cover at the same time the rights of the person (see  public Libertés), but also the political rights (right to the participation in the public affairs) and, for certain analysts, the social rights, without however guaranteeing their promotion juridically. This last point constitutes one of ambiguities of the concept: indeed, the humans right seem an ideal to reach, and nothing guarantees that the whole of the political régimes concretely implement them.

In France, however, the Constitution of the O C République renews solemnly in its preamble "its attachment with the humans right such as they are defined by the Declaration of 1789" and thus gives a constitutional range to these rights. The French substantive law gives by a the great majority of them a normative character, and attaches to their recognition a protective legal status. Thus are protected by the intermediary from the various branches from the right (civil law, criminal law, administrative law) the right to freedom, the property, the safety of the people, the right to resist oppression, etc.

The humans right do not correspond exactly to the concept of public freedoms, which one can define as the whole of the legal standards which guarantee the exercise of the rights and freedoms. The right of public freedoms thus constitutes part of the substantive law of the humans right, but it does not exhaust the concept, insofar as all the humans right necessarily did not receive legal dedication.

3. 2

Jurisdictional protection in France

The protection of the humans right in France is exerted at the same time with respect to the law and the administration, when they are likely to attack the humans right and to the public freedoms guaranteed by the Preamble to the French Constitution of October 4, 1958 and by the Constitution itself.

3.2. 1

The constitutional Council

In the exercise of its mission, the constitutional Council can prevent that a proposal or a bill which would violate one of the constitutional provisions does not come into effect while censuring the text which is subjected to him. Thus, the constitutional Council, in its decision of January 9, 1980, censured the law establishing  the procedure  of expulsion from abroad which envisaged the intervention of a judge only at the end of seven days, estimating that "the personal freedom [ could ] to be safeguarded only if the judge intervenes as soon as possible possible" (see  Immigration).

3.2. 2

Jurisdictions of the legal order

Article 66 of the Constitution lays out expressly that the legal authority is guardian of freedoms and, for this reason, the judges of the legal order (civil judge and penal judge) are the natural persons in charge for the jurisdictional protection of the rights and freedoms. In accordance with article 136 of the Code of penal procedure, only the legal jurisdictions are qualified to come to a conclusion about all the arbitrary cases of detention, that the Constitution, in its article 66, prohibits by principle. Only the penal judge, in the name of the principle of plenitude of jurisdiction, can appreciate the legality of the notes taken by the administration (payments, decrees) being used as base with the continuations and decide cancellation of it if it considers their contents illegal. However, it does not have the capacity to grant a compensation to the victim, this capacity being reserved with the administrative jurisdictions. Lastly, the legal judge, with penal as with civil, has the capacity to make good the damage undergone by the victims of way in fact, term indicating any situation where the administration carried reached to a fundamental freedom or made a particularly serious irregularity.

3.2. 3

Administrative jurisdiction

The role of the administrative jurisdictions is also very significant, since the judges of the administrative order are brought to judge acts of the administration and its agents which undermine the humans right and to public freedoms. The administrative judge intervenes on the level of the administrative acts taken by the authorities, which it can cancel or suspend within the framework of the procedure of the recourse for abuse of power. This jurisdictional recourse allows managed to make cancel regulations which violate their basic rights. The procedure of the recourse for abuse of power, obligatorily directed against a decision, obeys particularly simple rules, since one can write his request on plain paper and that the assistance of a lawyer is not obligatory, which ensures a very easy access of the whole of justiciable the administrative courts.

3. 3		Jurisdictional protection within the international framework

Rogers (Richard), European Court of the humans right (Strasbourg)

The new palate of the European Court of the humans right in Strasbourg was built in 1995 and was drawn by the architect Richard Rogers.

There is not truly international jurisdiction gathering under its competence the whole of the Member States of the United Nations, which would have the role to ensure the protection of the humans right that many conventions proclaim (universal Declaration of the humans right of 1948, Pactes of 1966). On the other hand, at the European level, it was instituted within the framework of the Council of Europe, a directly charged body and exclusively to examine and judge the violations by States as regards humans right and of public freedoms, the European Court of the humans right.

The text of reference which melts the recourse to the Court is the European Convention of the humans right and of fundamental freedoms, adopted in 1950. Convention sanctions many rights, which they are individual or collective, like the right to the freedom of expression, the freedom of conscience, the respect of the private life, or the right to the association and right to meet. Convention establishes a jurisdictional procedure complexes making it possible either the States or with the individuals, if their State of origin accepted the individual recourse, to make available of the Court the violations of Convention. At the end of the procedure, the State can be condemned to pour damages with the victim, but, generally, such a judgment encourages the State condemned to adopt a new legislation in conformity with the European Convention of safeguard of the humans right and of fundamental freedoms.

Within the Organization of the American States (OAS), gathering trente-trois States of the America zone, there is also a court, called inter-American Cour of the humans right, whose role and missions are similar to those of the European Court of the humans right. In the same way, the Organization of African Unity devoted its attachment to the humans right in 1981 by adopting a African Charter of the humans right and People and by founding a commission also charged to make apply the provisions of the Charter, which however does not envisage the creation of a purely jurisdictional body.