1998 Volume 65 Issue 3 Pages 223-231,288
The theory of division was introduced by Professor Munakata with reference to the work on Comparative Education(1993)by Isaac L. kandel. This theory prohibits a state or a local government from intervening in "interna" matters, that is, educational content, methods, textbook, etcetera. It limits the functions of the educational administration to 'externa' matters, namely, educational facilities, finance, school system, etcetra. 'Interna' is associated with the cultural freedom of the people to administer their own education ; however, the ultimate right to determine it is entrusted to each teacher as a professional. Scholars of educational laws cite this theory for the interpretation of Article X of the Fundamental Law of Education. The theory has much significance for the theory of the people's right to education and for authorizing teachers freedom to teach. It is possible to classify control types of education into(a)state intervention, (b)professional leadership, (c)popular control, and(d)market choice. The theory of the peoples right to education and the theory of division belong to "b". "a", "c" and "d" categories deny "b" for the reason that "b" category vests teachers with an unrestricted authority. The relationship between "a" and "b" has been controversial after World War II because of the dispute between the state's right or claim to determine school education and the people's right to determine it. But the question of the relationship between "b" "c" and "d" dategories that commonly prohibits state intervention into 'interna' have really not been debated. Therefore, this paper has reexamined the meanings of appropriate sections of the Constitution and the Fundamental Law of Education, especially Article X. As a result of this examination, it is clear that none of the four type's simultaneously meets all the principles of "direct responsibility to the whole people for education", "adjustment and establishment of conditions for education", "equal opportunity in education", and "fair and appropriate treatment of teachers", in the Fundamental Law of Education and Constitution. To reconstruct the theory of division, it is necessary : 1. to prescribe first the relationship between individuals including children and parents, and the state including schools and teachers. The state is respoinsible for both 'interna' and 'externa' for equal opportunity, though there are much larger limit on the 'interna' in respect to the realization or protection of fundamental human rights ; 2. to divide a state into legislative, administrative and educative functions. We have to prescribe the mutual relationship, regarding the principles of direct responsibility and adjustment of conditions. Legislative functions extend over both 'interna' and 'externa'. By contrast the administrative functions and the educative ones are limited to 'externa' and 'interna' respectively. 3. to locate educational actions of teachers and management by their skills in 'interna' and 'externa' respectively. In the consideration of fair and appropriate treatment, teachers are free to exercise their own skills as professions, but professional skills are to be appraised or managed on objective and professional standards by the educational administration.
