The Religious Education of Children and the Law

Extract

It has been said that on the whole it is more important that the law should be certain than that it should be just. Perhaps it is by a similar process of reasoning that criminologists are led to aver that it is the certainty of punishment following the crime in a short space of time rather than the amount of punishment which provides the chief element in its deterrent effect.

The law prior to 1925 relative to the authority of the father over the religious education of his children was certain. It was also, on the whole, just. Difficulties arose from time to time in its application, but at least there was some fixed law to be applied. It will be well, therefore, to consider this law and afterwards to attempt to understand what alterations have been made by the Guardianship of Infants Act, 1925.

The Law of England may be classified under two headings, Common Law and Statute Law. Common Law is the Law of decided cases—case law. It finds its authority in the fiction that such law always existed and to such pre-existing law the judges appeal. In fact, of course, case law is judge-made law.

The position of the father at Common Law was peculiar. The absolute dominion of the father, the ‘patria potestas’ of Roman Law, was not given to him. He had no power over life and death. But almost every other power was his. Moreover, such paternal rights were not counter-balanced by corresponding duties.