基本権と教会 : 七〇年代前半における「教会の基本権拘束」についての学説状況、特に、K.ヘッセとH.ヴェーバーの議論について
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In Germany, there is a big church called "Landeskirche", which means a national church. This doesn't mean an establishment church. But it's true that a church like this has an official status and power to make people obey in the name of the state under the constitution. So it is important to make clear the status of a church like this. Both churches, "Evangelische Kirche (Protestant church)" and "Katholische Kirche (Catholic church)" have had great power and have had much influence with people until now in Germany. In fact, the Government party (in 1996) is a Christian party, CDU/CSU. Both churches collect "Kirchen steuer (church tax)" through the tax office of the state. Everybody must take a religious class (Christianity) both in elementary school, and in high school. State universities have divinity schools. The teaching staffs, who give classes of Christianity at these schools, are sent from both churches. These teachers can make lessons for the class on their own dogma. These churches have an official power indeed. But a church is neither an organization of a state, nor an organization controlled by a state. So how should we consider this situation ? §1-3 Grundgesetz (the constitution of Germany) declares that fundamental rights bind congress, court and administrative organizations certainly. But a church is not the object for the binding of fundamental rights in §1-3 GG. SO, when a church uses official power, we should think about whether the fundamental rights bind a church, or not. In the 70s', there were three streams of thinking about how fundamental rights to bind a church. Someone says that fundamental rights bind a church in amy case (for ex. H. Sacker), other say that the binding of church by fundamental rights occurs case by case (for ex. H. Weber, E. Wufka), and the others say that fundamental rights never bind a church ( for ex. W. Rufner, K. Hesse, A. v. Campenhausen). In the 90s', it seems that some changes have occured. For example, W. Rufner changed his theory at "Handbuch des Staatsrecht Bd. 5 (Hrsg. Isensee/Kirchhof)", and has gotten closer to H. Weber's. I was very surprised that he changed his theory, because he is famous as an auithority of "Staatskirchenrecht (the law as for the relationship between church and state, which is considered a part of the constitution)". Also I was surprised that his work was on the most famous and reliable handbook of the German constitution. Indeed, K. Hesse is a one of the most famous professors of the German constitution, and of church law. He belongs to the University of Freiburg. But on the other hand, H. Weber is only a chief editor of NJW. Important scholars like K. Hesse, A. v. Campenhausen, and W. Rufner had stood against H. Weber. I seem to hear the sound of the footsteps of something new, when I found W. Rufner's work in "Hanbuch des Staatsrecht Bd. 5". If we want to see the nature and the state of this problem, we should go back to the 70s' to examin it. I'd like to pick up and consider the statements of H. Weber, and of K. Hesse from their works. I plan to clarify the state of this problem in this paper.
- 日本法政学会の論文
- 1997-05-15
日本法政学会 | 論文
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