EDUCATION: A COMPULSORY RIGHT? A FUNDAMENTAL TENSION WITHIN A FUNDAMENTAL RIGHT

Abstract

This paper is on the paradox of a right, the right to education that is almost universally declared as compulsory. The reason for the compulsion seems to be in its nature as a right. Within a Hohfeldian framework, any claim-right has a corresponding duty. Given that making education compulsory equates to establishing a duty, the possible candidates to the duty generating right-bearers are considered. The rationales for compulsion from the points of view of positive (for one’s own good), negative (no compulsion at all), and republican liberty (society right) are analyzed, and the conclusion is reached that none of the three can produce sufficient justification for compulsion. The main conclusion is that education is a right, not an obligation. Therefore, neither the children nor their families can be legally forced to an unrestricted exercise of this right without even being heard. The law must reflect, in its progressive flexibility, the growing possibilities of choice for right-holders who are adults ‘in fieri’.