「法(法律)による教育行政」の理念と課題(I 論説)

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概要

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• The existing Constitution of Japan has succeeded and adopted the idea of "rule of law" or "administration ruled by law" (die gesetzma βigkeit der Verwaltungs) as one of the fundamental principles of modern states. This principle generally means that the public administration should be executed on the basis of laws or statutes which are discussed and enacted in the National Diet and its Tragers (persons in charge of the public administration) should not treat it by their own judgement, whatever nominal reasons they may have. The laws or statutes which control the national and local rules and regulations should not be unconstitutional and must coincide with the essential ideas or principles of the Constitution. Accordingly, the public administration in general should be based not only on the laws nominally, but also on the Constitution substantively. As this is of course applied to the public administration of education, it must be also treated on the basis of laws and the Constitution (basically on the Fundamental Law of Education which concretizes the constitutional ideas on education). When this applies particularly on the contents and methods of education (its internal affairs), the arbitrary administration without depending on laws or statutes should not be permitted, for it is necessary that some kinds of fundamental human rights (particularly the right to education and some rights to freedom) should be guaranteed. Even in the cases when the educational administration depends on laws or statutes, it is strongly required that the education "improperly" should not be ruled. (Article 10 of the Fundamental Law of Education) In practice, however, both public administration in general and educational administration in particular seem to have gradually deviated from the essential ideas or spirits which the Constitutional Law and the Fundamental Law of Education (especially its Article 10) have originally adopted, with the lapse of more than 40 years since their enactments. The main reasons of the deviations lie in the change of power of the politics in the post-war days, and the exceptions and limitations of the principle itself of "rule of law" or "administration ruled by law". There are some cases of educational administration carried out through decrees and notifications which are not necessarily based on the laws or statutes, administrative interpretations magnifying or reducing the meanings of laws or statutes, and "substantively administrative" legislations by the Government which has been sustained over the ultra-long term by the conservative majority party in the National Diet. These cases have brought the deviations. And these deviations are now being partially admitted even in the interpretation of the Supreme Court which seems to have become conservative. This is now a very important problem. Because it means the collapse of "the separation of three powers". In order to work out a solution to this problem on the educational administration, new "educational councils" should be established on the national, prefectural and municipal levels, and in each school. They should be constituted by the representatives of the various social groups who speak for their own standpoints. The necessarily inevitable decisions on educational disputes should be done rationally according to the "five-divided method" after the prudent and thorough discussions of these councils.

• 日本教育行政学会の論文
• 1991-10-05

著者

• 高木 英明

  京都大学

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