Why it is more than just a sentence on paper
“Funding affair at the Ministry of Education” – These or similar headlines have been staring at us like flashing lights in the press recently. When people have been made aware of the above-mentioned situation, they were justifiably outraged. It was all started by an email from the Ministry of Education, in which it appears that the university lecturers who signed an open letter criticizing the eviction of an occupation of the FU Berlin by pro-Palestinian students were to be checked whether they were recipients of funding from the Ministry of Education and, presumably, to cut their funding if necessary. This would effectively mean the end of their academic careers. This is not only fatal from a professional point of view, but also in relation to the protagonist of this column- freedom of science and freedom of research. After all, science can only be pursued effectively if the necessary resources are available. In the following, we will take a closer look at the fact that academic freedom is not just a right on paper, but also has very practical implications for everyday work.
Where does freedom of research come from?
If you wanted to look at the entire history of academic freedom, you’d have to go back to antiquity. After all, the term and the associated concept of academic freedom date back to the Platonic Academy. However, as this column is primarily intended to be of practical use, this is just a little ‘fun fact’ in passing.
It became more relevant to the present day on 31 July 1919 with the adoption of the Reich Constitution in Weimar. In its Article 142, it boldly stipulated: ‘Art, science and their teaching are free.’ This was the case until the National Socialists came to power in 1933. After their reign of terror – which also demonstrated what happens when science is not free – academic freedom was once again included in the constitutional law (Grundgesetz), which has now come into force – in Article 5 Paragraph 3. The wording is identical to Article 142 of the Weimar Constitution. However, it is not only identical, but also enigmatic when it comes to the effects of free science and research.
Excursus: How do fundamental rights (Grundrechte) work?
In order to understand how academic freedom affects the everyday lives of researchers, it is first necessary to clarify what fundamental rights actually are. Fundamental rights are directly applicable law. This means that citizens can invoke them vis-à-vis the administration, the courts and other state authorities. They must also be taken into account in decisions made by public authorities that affect citizens.
Fundamental rights act both as a subjective legal right of defence against the state and at the same time as an objective legal right in the form of state guarantee obligations and mandates to act.
For example, if a person is suspected of a criminal offence and the police wish to remand them in custody, this interferes with their right to freedom under Article 2 (1) in conjunction with Article 104 of the Grundgesetz. This is not possible without further ado. It must first be examined whether such an encroachment is exceptionally justified on the basis of other high-ranking interests and rights and whether the person can be remanded in custody. If it is subsequently established that the interference with the person’s fundamental right was not justified by the pre-trial detention order, the person is also entitled to compensation.
What does freedom of research do in particular?
Like other fundamental rights, the freedom of research and science is made up of a subjective right of defence of those affected and, at the same time, the objective obligation of the state to ensure functioning institutions of free science and the freest possible scientific activity.
However, the question of the nature of the fundamental right will not get us any further if it has not been clarified what its substantive framework is. To quote our Federal Constitutional Court, science is any activity ‘which, in terms of content and form, is to be regarded as a serious, planned attempt to ascertain the truth’, whereby ‘science’ is the common generic term for research and teaching.
Anyone who has studied the history of science will know that it has constantly changed over the years, both in terms of methods and knowledge. This is the nature of truth-finding. The legislator is also aware of this, which is why the concept is open and changeable. This is why, in principle, research approaches and results that subsequently prove to be unusable or erroneous are also protected. Even unorthodox methods are included in the scope of protection.
Freedom of research, in turn, covers all stages of research: from the formulation of the research
question and the methodology to the evaluation and dissemination of the research results. Furthermore, protection applies not only to the actual research work mentioned above, but also to preparatory and follow-up work as well as organisational support work. In short, all scientific activities that are carried out independently and are directly related to the research work itself. This also includes investigations into the status of research, material collection, fundraising, etc., which brings us back to the case described in the introduction.
Last but not least, as explicitly emphasised by the Federal Constitutional Court, freedom of research also concerns the confidentiality of data as part of the processes and behaviour in the search for knowledge (https://www.bundesverfassungsgericht.de/SharedDocs/Downloads/DE/2023/09/rk20230925_1bvr221920.pdf?__blob=publicationFile&v=1 ).
How does this benefit me in practice? An example: the protection of confidentiality
What I have just described shows what one can potentially do on the basis of academic freedom. However, it can and will happen that there is interference with others in the exercise of their rights under the Grundgesetz. In order to prevent this from getting out of hand, the Grundgesetz has imposed limits on fundamental rights, according to the conditions of which fundamental rights may be restricted. How high the hurdles for the restrictions are depends on the respective fundamental right itself.
Accordingly, there are fundamental rights that may already be restricted by or on the basis of a law.
Take, for example, the freedom of assembly under Article 8 Grundgesetz: it states that everyone may assemble peacefully. However, this freedom of assembly can be restricted by or on the basis of a law if the assembly takes place in the open air. It is precisely this restriction that is imposed by the Assembly Act.
In contrast to this, however, there are also fundamental rights to which the legislator has ascribed such a high status that it guarantees them unconditionally. These include the freedom of science under Article 5 paragraph three.
However, this does not mean that a restriction of academic freedom is not possible at all – after all, there are several inherently unconditional fundamental rights that may conflict with each other under certain circumstances. However, a restriction can only be imposed if other rights of constitutional rank are impaired and the other impaired right ‘wins’ when weighing up the two rights and the associated interests. The above-mentioned case before the Federal Constitutional Court can also serve as an example here: There, the state wanted to obtain confidentially collected data from subjects of a criminological study who were potentially members of a terrorist organisation. In this case, the state’s interest and duty to ensure the effective administration of criminal justice was at odds with the scientists’ interest in being able to conduct effective research. These two interests had to be weighed against each other. The more the specific research project and certain areas of research rely on the confidentiality of data collection and processing, the greater the importance of academic freedom.
In the case described, the fact that the confidentiality of the data is a highly relevant factor for research is evident. However, sensitive data is also frequently collected in agricultural research. Just think of the research into pesticide contamination of the arable soil of certain farmers. They will probably not hand over their data in this regard unless they are guaranteed that this information will be treated confidentially.
The decision of the Federal Constitutional Court helps both sides here: It can serve as a basis of
argumentation for researchers vis-à-vis potential test subjects. At the same time, it gives the
researchers themselves certainty that their research results cannot simply be disclosed by state authority and thus jeopardised.
Lea Singson, FAIRagro Helpdesk (FZI Karlsruhe)
This article is licenced under CC-BY 4.0.