＊１ Professor of Education at Rissho University
On the historical significance and the current problems on Fundamental Law of Education (1947) in Japan
NAMIMOTO Katsutoshi
＊１まえがき
この論文は､ 1997年９月に創立された British Association for International and Com- parative Education (BAICE, イギリス国際比較学会､ 2004年９月３日〜５日､ 於：英国
サセックス大学) において､ 筆者が､ 2004年 ９月５日､ 口頭発表した原稿に若干手を加
えたものである (その後､ Website で公表されている)｡
当日の分科会の司会者が､ かねてから懇意な間柄にある Professor David Turner (University of Glamorgan) であったこともさいわいして､ 落ち着いて発表することが できた｡
報告後､ Mr. Peter Colenso, Educational Specialist, The World Bank, Sri Lanka をはじめ参加者の方から多くの質問・意見をいただいた｡ 質問に対しては､ 汗をかきなが らではあったが､ 何とか対応することができた｡ この学会に参加し､ 国際学会における雰 囲気を味わうことができたのは､ 筆者の喜びとするところである｡
次の写真は､ 当日の筆者の発表風景である｡
(2004. 9. 5 At BAICE 2004, University of Sussex, England)
《Contents》
1 What is Fundamental Law of Education in Japan?
2 Full Text of Fundamental Law of Education (1947)
3 The essential character of Fundamental Law of Education in Japan 4 The process of establishing Fundamental Law of Education in Japan
5 The system of Fundamental Law of Education and its current validity in and out of Japan 6 Current problems
The development of the education lawsuits in Japan after the Second World War Takashima Textbook Lawsuit (1993-) in Japan
Patriotism：love of country or respect for country Article 10：education or education administration 7 Conclusion
ABSTRACT
Fundamental Law of Education regulates what education in Japan now should be basically. More precisely speaking, it is this Law that rules whole education in Japan legally.
Fundamental Law of Education was established after the Second World War, pro- claimed on 31 March, 1947, which is inseparably related to the Constitution of Japan, declaring world peace, proclaimed on 3 November, 1946.
Education in postwar Japan has started with the basic principles such as individual dignity, truth, and pacifism under Fundamental Law of Education, replacing the mili- taristic and ultra-nationalistic education before the war, which forced loyalty to the Emperor.
Since the outbreak of the Korean War, 25 June, 1950, however, the rearmament of Japan against the philosophy of peace in the Constitution has proceeded. The Self- Defense Force (SDF) has been improved to be a leading“army”in the world,“modern- ized”with the economic growth in Japan. And the significance of peace education in Japan has been tormented by the government gradually.
As Fundamental Law of Education as well as the Constitution of Japan has been an encumbrance for the government which is concerned to work in cooperation with USA through the resource to the Gulf War (1991) and the dispatch of SDF to Iraq, the re- vision of these two laws is being a politically significant problem. Now in the 21 cen- tury, the educational world in Japan is shaken for the revision on Fundamental Law of Education widely.
1 What is Fundamental Law of Education in Japan?
Fundamental Law of Education in Japan is literally the most basic and fundamental law of edu- cation, which regulates all the education laws after the Second World War in Japan. It was estab- lished in 1947 on the basis of the spirit of Constitution of Japan, in which Japanese people forever renounce war as a sovereign of the nation and the threat or use of force as means of settling inter- national disputes (article nine).
2 Full text of FUNDAMENTAL LAW OF EDUCATION 1947 (Law No.25)
Having established the Constitution of Japan (1946), we have shown our resolution to contribute to the peace of the world and the welfare of humanity by building a democratic and cultural state.
The realization of this ideal shall depend fundamentally on the power of education.
We shall esteem individual dignity and endeavor to bring up people who love truth and peace, while education which aims at the creation of culture, general and rich in individuality, shall be spread far and wide.
We hereby enact this Law, in accordance with the spirit of the Constitution of Japan, with a view to clarifying the aim of education and establishing the foundation of education for new Japan.
ARTICLE 1 Aim of Education.
Education shall aim at the full development of personality, striving for the rearing of people, sound in mind and body, who shall love truth and justice, esteem individual value, respect labour, have a deep sense of responsibility, and be imbued with the independent spirit, as builders of a peaceful state and society.
ARTICLE 2 Educational Principle.
The aim of education shall be realized on all occasions and in all places. In order to achieve the aim, we shall endeavour to contribute to the creation and development of culture by mutual es- teem and cooperation, respecting academic freedom, having a regard to actual life and cultivating a spontaneous spirit.
ARTICLE 3 Equal Opportunity in Education.
The people shall all be given equal opportunities of receiving education according to their ability, and they shall not be subject to educational discrimination on account of race, creed, sex, social status, economic position, or family origin.
The state and local public bodies shall take measures to give financial assistance to those who have, in spite of their ability, difficulty in receiving education for economic reasons.
ARTICLE 4 Compulsory Education.
The people shall be obligated to have boys and girls under their protection receive nine years
general education. No tuition fee shall be charged for compulsory education in schools estab- lished by the state and local public bodies.
ARTICLE 5 Coeducation.
Men and women shall esteem and cooperate with each other. Coeducation, therefore, shall be rec- ognized in education.
ARTICLE 6 School Education.
The schools prescribed by law shall be of public nature and besides the state and local public bod- ies, only the juridical persons prescribed by law shall be entitled to establish such schools.
Teachers of the schools prescribed by law shall be servants of the whole community. They shall be conscious of their mission and endeavour to discharge their duties. For this purpose, the status of teachers shall be respected and their fair and appropriate treatment shall be secured.
ARTICLE 7 Adult Education.
The state and local public bodies shall encourage home education and education carried out in places of work of elsewhere in society.
The state and local public bodies shall endeavour to attain the aim of education by the establish- ment of such institutions as libraries, museums, citizens’public halls, etc., by the utilization of school institutions, and by other appropriate methods.
ARTICLE 8 Political Education.
The political knowledge necessary for intelligent citizenship shall be valued in education. The schools prescribed by law shall refrain from political education or their political activities for or against any specific political party.
ARTICLE 9 Religious Education.
The attitude of religious tolerance and the position of religion in social life shall be valued in edu- cation. The schools established by the state and local public bodies shall refrain from religious education or their activities for a specific religion.
ARTICLE 10 Education Administration.
Education shall not be subject to improper control, but it shall be directly responsible to the whole people.
Education administration shall, on the basis of this realization, aim at the adjustment and estab- lishment of the various conditions required for the pursuit of the aim of education.
ARTICLE 11 Suplementary Rule.
In case of necessity appropriate laws shall be enacted to carry the foregoing stipulations into ef- fect.
Supplementary Provision
This law shall be enforced on and from the day of its promulgation.
3 The essential character of Fundamental Law of Education in Japan
Fundamental Law of Education has two characters, which have been emphasized since the estab- lishment of the Law: the one as“declaration of education”which annals for the Imperial Rescript of education (1890), and the other as“‘constitution of education”which exists as the organic law of all the education laws.
“Declaration of education”means that the national representatives should prescribe the educa- tional philosophy or principle, declare the law by the name of the people, and give education through the law freely as their own.
“Constitution of education”means that the law is the basic and fundamental one in all the edu- cation laws. It has the preamble, which is exceptional in case of law, and that it amplifies and em- bodies the meanings of the provisions for education in the Constitution, and also provides the general and fundamental regulations which give bridges to the other education laws.
The Supreme Court stated, 21 May, 1976, in the decision for National Achievement Test for lower secondary schools as below.
“Fundamental Law of Education was established to declare the fundamental philosophy and prin- ciples through education and all the educational systems in Japan. It is also the main law of all the laws and its purpose is the fundamental reform of Education in Japan, which is the most im- portant problem in all the reformations in the political, social, and cultural fields. It is quite clear, considering the preamble and the contents of each article.”
4 The process of establishing Fundamental Law of Education
Fundamental Law of Education was planned in 1946 by Education Reform Council (1946-1952), and established, and proclaimed as Law No.25 on 31 March, 1947, after the deliberation of the 92nd imperial council.
5 The system of Fundamental Law of Education and the current valid- ity in and out of Japan
Article XI in Fundamental Law of Education sets down that in case of necessity appropriate laws shall be enacted to carry the foregoing stipulations into effect. Following this article, more and more laws for education have been established.
After the establishment of Fundamental Law of Education many laws were published as follows;
1 the School Education Law (31 March, 1947), as for new systems of school education, 2 Law for the board of education (15 July, 1948) and Law for the establishment of Ministry
of Education (31 May, 1949) as for educational administration,
3 the Law Concerning Special Regulations for Educational Public Service Personnel (12 Janu- ary, 1949) and the Educational Personnel Certification Law (31 May, 1949) as for teachers, 4 the Adult Education Law (10 June, 1949) as for social education.
These laws have formed so-called the bone of the Constitution and Fundamental Law of Edu- cation. And moreover, the declaration of the Children’s Charter (5 May, 1951) was made, which is not a law, but should be a standard for interpretation of the laws that are related with children. In a few years since the proclamation of Fundamental Law of Education, the legisla- tion of Fundamental Law of Education was fixed. And the structure of the Law has barely been kept although there have been a lot of revisions for these fifty years.
The principles of the educational reform in Japan after the Second World War share the same movement of those in the world, which should be strictly observed in the field of Education and they are approved internationally.
Below are the very important documents which show the current of education in the world.
1 United Nations;“The Declaration of the Rights of the Child”(20 November, 1959)
2 UNESCO; Recommendation Concerning the Status of Teachers (21 September〜5 October, 1966)
3 UNESCO; Recommendation concerning Education for International Understanding, Cooperation and Peace and Education relating to Human Rights and Fundamental Freedoms (19 November, 1974)
4 UNESCO; Report and Final Document: World Congress on Disarmament Education (13 June, 1980)
5 UNESCO; The Rights to learn (29 March, 1985)
6 United Nations; Convention on the Rights of the Child (20 November, 1989) (It was ratified 22 April, 1994, and proclaimed 16 May, 1994 in Japan.)
The Ministry of Foreign Affairs described in the Guidebook by Foreign Ministry for“Conven- tion on the Rights of the Child”(March, 1992) the reason why it should be asked for approval in the Diet as soon as possible, as below.
“In the General Assembly and United Nations Commission on Human Rights, this Convention has been encouraged to be ratified as soon as possible in all the countries in the world. The pur- pose of this Convention which respects human rights of child shares the same ideology with that of the Constitution of Japan which respects fundamental human rights. It is also impor- tant for us to conclude this Convention as soon as possible and promote more international co- operation in the esteem and protect of the rights of the child.”
Unfortunately, however, Japanese government suggested that no measures are necessary to be taken in Japan.
This situation shows that Fundamental Law of Education lacks in substance for government.
But in a sense, now is the time to innovate the Law with our new points of view. Fundamental Law of Education was established more than 50 years ago, which might not be sufficient enough in some ways, but it is important to interpret richly in terms of Human Rights.
6 Current Problems
The development of the education lawsuits in Japan after the Second World War The orthodox lawsuits of education started in late 1950s. In this period Japan’s education pol- icy turned rapidly to ignore the spirit of Fundamental Law of Education. As a typical example we could point out the complete revision of the Law for the Board of Education (1948). This pol- icy caused many conflicts in Japanese education.
One of them is the teacher’s efficiency rating system (1957) and the another is the national test for the pupils at lower secondary schools all over Japan (1961). JTU, Japan Teachers Union, fought against these policies vehemently.
The Public Prosecutor’s Office charged teachers with the violation of Law of Local Government Employee. Teachers pleaded that their actions are legal in the light of Japan’s Constitution and Fundamental Law of Education.
Thus Fundamental Law of Education appeared at the courts and gradually the interpretation developed.
As for the case on National Achievement Test for lower secondary schools, the fruitful result came out at the grand bench of Supreme Court of Japan on 21 May 1976 as shown before.
Takashima Textbook Lawsuit (1993-) in Japan
TAKASHIMA Nobuyoshi (1942-), Professor at Ryukyus University now, had to give up his writing for“Contemporary Japanese Society”textbook as a result of the central government’s textbook screening for the 1994 year curriculum.
The textbook screening system is a mechanism in which only those manuscripts that have passed the censorship can be published as textbooks and may be used at primary and secondary schools in Japan.
The then Education Ministry found four passages in the modern history textbook for high school students penned by Takashima, who was a teacher of social studies at a Tsukuba Univer- sity High School in Tokyo. The ministry ordered that he should delete four parts below;
a quote taken from“Datsu-A-Ron” (“Departure from Asia”) written by a Meiji philoso- pher FUKUZAWA Yukichi (1835-1901),
the media reports on the death of Emperor Showa (1901-1989),
the government control of the media reports on the multinational forces during the Gulf
War (1991),
the dispatch of Japanese Self-Defense Force minesweepers to the Persian Gulf (1991).
On 11 June 1993 Takashima started a suit for compensation for the“mental anguish”he suf- fered, saying that the screening process by the Education Ministry was unconstitutional and il- legal. He claimed that the screening system by the government was against Article 10 of the Fundamental Law of Edication. He is the second person to file a suit over the textbook screening system by the Ministry, following IENAGA Saburo, a famous Japanese historian, who appealed three successive lawsuits from 1965 for his textbooks which were not accepted by the censorship.
The Ministry officials ordered Takashima to delete the part in which Southeast Asian coun- tries filed complaints over the dispatch of Japanese minesweepers to the Persian Gulf in 1991. In 2001, 10 years after the dispatch, however, the government dispatched battleships to the Indian Ocean.
On 22 April 1998 the Yokohama District court ruled that what the Ministry remarked on
“Datsu-A-Ron” (Seeabove) by FUKUZAWA Yukichi was illegal and ordered the government to pay 200,000 yen, around 1,000 pounds, in compensation. On 29 May 2002, however, the Tokyo High Court overturned the 1998 Yokohama District Court ruling, and said that the screening was constitutional, which was an“unjust decision”going against the time. And on the contrary in 2001 a history textbook for junior high school students, including, so called“Modern Datsu-A- Ron”that shows scorn for Asia, passed the screening of textbook without any problem, which is contradictory. It goes without saying that the plaintiff and the defense have appealed to the Su- preme Court.
The purpose of“Takashima School Textbook Lawsuit”is to spread the campaign to seek for freedom of teaching in schools all over Japan, appealing against the government censorship on Textbooks as being unconstitutional and illegal, and to prevent the growing movement of“revi- sionism in history”. We now continue fighting in the Supreme Court to realize these purposes in Japan.
Patriotism：love of country or respect for country − Critical Situation of Fundamental Law of Education
Now in Japan it is in time of trial for the important philosophies in Fundamental Law of Edu- cation; individual dignity, equal opportunity in education, coeducation, and prohibition of authority from intruding‘interna’of education. Many people hope that they should protect and expand these philosophies.
Many of the scholars in Educational Academic Communities feel that Fundamental Law of Education is now in crisis, and they hold joint symposium of 15 academic circles, and show their critical views to the movement of the Japanese government to “revise” Fundamental Law of
Education.
The problems in the ruling parties’(Liberal Democratic Party, LDP, and New Komeito) pro- posal to“revise”Fundamental Law of Education are found in the interim report. Its report to re- write Fundamental Law of Education was given out on 16 June, 2004.
In the report the LDP emphasizes the importance of cultivating“love of country”, which means nationalistic patriotism. On the other hand, Komeito uses a different expression, “respect for country”. Komeito is worried that the word‘patriotism’would invoke images of Japan’s military past. But the questions are how patriotism should be interpreted and how genuine love for the country can be nurtured by education.
And the problems of this proposal by the ruling parties are to change the fundamental mean- ing of educational philosophy in Fundamental Law of Education. The report emphasizes the ne- cessity to develop the“public spirit”, but it doesn’t mention of the important phrases in existing law, such as “individual value”,“equal opportunity in Education”, or“spontaneous spirit”. An- other important example is shown next.
Article 10：education or education administration
The ruling parties try to change Article 10 drastically by adding one word. Article 10 in Fun- damental Law of Education says that education shall not be subject to improper control. In the interim report, however, it is changed into‘ “education administration”shall not be subject to im- proper control’, which brings a complete different interpretation in the Law.
The proposed change would enable the government to control education more strongly. This is because according to the changed Article 10, it would be ordinary people who try to control edu- cation improperly. Therefore the changed Article 10 would discourage ordinary people to make their demands on education.
Critical situation of Fundamental Law of Education
Ministry of Education in Japan is now making up a draft revision of the Fundamental Law of Education, which is to be composed of almost 20 articles that is twice as many as the existing Law, based on both the. recommendation by the Central Council of Education (20 March, 2003) and the proposal agreed between the ruling parties (16 June, 2004).
The bill is to be submitted in the 162nd regular session of the Diet called in January 2005. If so, 2005, 60-year anniversary after the Second World War, could be a very important turning point for the Japanese Education to head forward to the dangerous way widely.
7 Conclusion
Now in 2004, the educational world in Japan is shaken for the revision on Fundamental Law of
Education widely. At this moment it should never be amended because the government has ambi- tion to misuse it in order to make Japan a warlike country. The ruling parties’ amendment will never result in good education to children.
References;
①Namimoto 1997 Textbook Authorization in Japan: Its Problem and Implications,The bulletin of the Faculty of Letters at Rissho UniversityNo.13. (Rissho University)
②Board OKs nationalist-bent history text,Japan Times,27 August 2004.
