A Theoretical Review of the Origins of Academic Freedom

This article focuses on the doctrinal “source” of academic freedom. According to one view – that of Klaus Dieter Beiter – “a single and complete locus for the right to academic freedom exists within the UN Covenants: Article 13 of the ICESCR on the right to education.”[1] Antoon De Baets, however, disputes this claim [2] contending that the fact that academic freedom is an absolute requirement for the enjoyment of the right to education does not provide a strong justification to conclude that the freedom is derived from the right to education. [3]

What Beiter and de Baets contend about, in reality, is not how to derive the source, existence and validity of academic freedom but simply about how academic freedom could help to facilitate, secure and or promote the enjoyment of the right to education. Indeed, paragraph 38 of General Comment 13 reveals: “the right to education can only be enjoyed if accompanied by the academic freedom of staff and students.” [Emphasis mine]. Rajagopal supports this view by remarking that “… academic freedom [is] for the protection of … [the right to] education.” [4]

From Freedom of Expression to Right to Education to Academic Freedom

Freedom of expression derives its source from the freedoms of thought, conscience, opinion, religion, association, movement and assembly. The exercise of the first four provides the basis for the production of knowledge. [5] Equipped with opinions, people move, interact, form groups to share their ideas and debate issues, thereby exercising the other freedoms. [6] Freedom of expression serves as the intermediary between the two freedom groups. [7]

Out of freedom of expression emerges the right to education, among other rights. In the pre-modern society education took place informally through the sharing of ideas obtained through thinking, experimentation and experience. At this stage, the line between freedom of expression and the right to education was very thin. [8] However, in more advanced pre-modern societies, including in Egypt and Ethiopia, freedom of expression resulted in the development of more sophisticated forms of formalised education, including universities. [9]

Formal/higher education becomes possible through a process of enjoying the ensemble of freedoms mentioned above. This triggers research, which helps to produce new and advanced forms of knowledge, giving rise to academic freedom. Thus, academic freedom is traceable to freedom of expression through the right to education. Consequently, freedom of expression gave birth to informal education; and academic freedom, formal/higher education. [10]

That academic freedom derives from freedom of expression and is a sub-set of it is confirmed by how the relationship is expressed in the constitutions of most African countries recognising academic freedom: that everyone has the right to freedom of expression which includes academic freedom. [11]

Conclusion

Academic freedom derives from freedom of expression through the right to education. But the right to education is fundamentally a right for students, and to a limited extent, for academics. On the other hand, academic freedom belongs principally to academics and, to a lesser extent, students. Thus, the right to education is related to academic freedom. However, the two are only complementary to each other. One is not derived from the other.

 

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[1] Klaus Dieter Beiter, “The Doctrinal Place of the Right to Academic Freedom under the UN Covenants on Human Rights” in University Values, July 2011, 5-7, at 5. Beiter points to, inter alia, Committee on Economic, Social and Cultural Rights General Comment 13, paragraph 38 and the Preamble to the UNESCO Recommendations, 1997, paragraphs 1 and 2, which link academic freedom to the right to education in UDHR Article 26 and ICESCR Article 13. Also, K. Beiter, The Protection of the Right to Education by International Law (Leiden, Boston : Martinus Nijhoff Publishers, 2006).
[2] Antoon De Baets, “The Doctrinal Place of the Right to Academic Freedom under the UN Covenants on Human Rights—A Rejoinder” in University Values, May 2012, 2-3.
[3] De Baets, supra note 1.
[4] Balakrishnan Rajagopal, “Academic freedom as a human right: An internationalist perspective”, Academe, Journal of the American Association of University Professors, May-June 2003 at 4.
[5] Morris Ernst, The First Freedom (New York: The Macmillan Co., 1946), esp. Chapter 1.
[6] John Stuart Mill, On Liberty (P. F. Collier & Son, 1909).
[7] Kwadwo Appiagyei-Atua, “A Review of Theories of Expression in the Context of the Development Argument” Vol XXIV (2005-2007) University of Ghana Law Journal, 197.
[8] Yatta Kanu, “Tradition and Educational Reconstruction in Africa in Postcolonial and Global Times: The Case for Sierra Leone” Vol. 9, Issue 3 Spring 2007 African Studies Quarterly, 65.
[9] Y. G-M Lulat, A History of African Higher Education from Antiquity to the Present (Westport, Connecticut: Praeger, 2005).
[10] A. F. West, “What is academic freedom?” in (1885) Vol CXL, New York, The North American Review, 432.
[11] Among others, refer to article 16(1) of the South African Constitution; and, article 21(1) of the Constitution of the Republic of Ghana 25(1).