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- Art. 2 CCC (Convention on Cybercrime)
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FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. History of origin
- II. Context
- III. Commentary in the narrower sense
- Recommended further reading
- Bibliography
I. History of origin
1 Freedom of science was only introduced into the FC as an independent fundamental right with the 1999 revision. Prior to this, the Federal Court considered the content of the right, without clarifying the question of whether it was an unwritten fundamental right, to be covered by other fundamental rights, in particular personal freedom and freedom of expression. In the context of the total revision, however, the inclusion of the fundamental right was undisputed from the outset. As early as 1973, a working group set up by the Federal Council (the so-called Wahlen-Kommission), whose task was to collect proposals for a future federal constitution, recommended the inclusion of freedom of science as an independent fundamental right, based on German constitutional law. As part of the revision process, freedom of science was initially mentioned as a further “cultural fundamental right”, together with freedom of art; in the 1996 draft constitution, it was given its current wording as an independent guarantee. Discussions during the deliberations concerned, among other things, the call for a stronger emphasis on the responsibility of researchers towards people and the environment; however, a corresponding proposal was rejected.
2 Freedom of science is considered a “German contribution” to the transnational catalog of fundamental rights and has also “significantly influenced” Swiss law. In order to understand the fundamental right, it is therefore worth taking a look at the German legal situation. This is justified by the extremely differentiated case law and doctrine. Despite the “revolutionary alliance” between science, enlightenment and political order, freedom of science is not explicitly included in the classic human rights declarations such as the American Bill of Rights (1789/1791) or the French Déclaration des Droits de l'Homme et du Citoyen (1789). In Germany, on the other hand, the first precursors go back to the time of the Vormärz; the fundamental right was mentioned for the first time in the draft of the so-called Siebzehnerausschuss for a new federal constitution (1848) and later adopted in the Weimar Constitution and finally in the Basic Law. The German debate on academic freedom was not without controversy, however; one central point concerned the fear of the state being undermined under the guise of freedom, which is echoed in the addition that freedom finds its limits in the duty to remain loyal to the constitution. The experiences during the Nazi regime, on the other hand, played a surprisingly minor role.
3 In the history of ideas, academic freedom is a child of the Enlightenment and older than the modern idea of the constitution. Spinoza's call for a libertas philosophandi analogous to the freedom of religious conscience from state coercion is considered to be one of the first examples: the freedom not to submit to any lawgiver other than the law of thought in matters of intellectual knowledge. This formulated the basic idea that still applies today, according to which the scientific search for truth is beyond the reach of state and political determination.
II. Context
A. Relevance of science
4 Science plays a central role in the information or knowledge society. Scientific findings form the basis for official and personal decisions in all areas of life. The relevance of scientific policy advice has become apparent during the coronavirus pandemic to an extent never seen before, and has reignited discussions about expertocracy that have been going on for some time. At the same time, science is under enormous pressure today. This includes calls for stronger regulation, democratization (“citizen science”) and better communication of science (“science communication”) in the face of scientific scandals and possible dangers associated with new findings. In addition, science research has identified an increasing pressure that – especially publicly funded – science must deliver more concrete, usable and socially useful results. On the other hand, and here too the COVID pandemic is a paradigmatic example, science also faces fundamental criticism in times of “fake news”, conspiracy theories and a skepticism of science that is further fueled by populists.
5 This ambivalence – on the one hand increasing relevance, on the other growing pressure – is already partly reflected in the FC: on the one hand, Article 64 FC of the last 50 years has created the basis for state research funding; on the other hand, the FC also provides a basis for the regulation of research, namely in the area of research on humans (Art. 118b FC), of reproductive medicine and gene technology in the human area (Art. 119 FC) as well as in the context of animal protection (Art. 80 FC). Tensions can also arise within the fundamental right itself, for example between its individual and institutional sponsorship (see N. 27).
B. Functions of academic freedom
6 The FC assumes that academic freedom requires special protection and does not merge with other fundamental rights such as the general freedom of expression. What is the reason for this special protection? The philosophy of science distinguishes between three different justifications, which are also similarly found in many legal treatises: protection for reasons of individual autonomy, for epistemological reasons and for reasons of democratic theory. The first justification focuses on understanding the world as the basis of human freedom and thus on elements of individual personal development; the other justifications are more concerned with collective interests.
7 The epistemological justification assumes that freedom stimulates creativity and is thus conducive to the efficient production of knowledge (“third-party benefit immanent in fundamental rights”). In the words of Karl Jaspers, “the freedom of the individual scholar is a condition of his or her productive spirituality, to the point of arbitrariness.” Following this idea, research agencies in numerous Western countries rely on the idea of disciplinary self-management instead of central organization. This is also clearly expressed in the case law of the German Federal Constitutional Court, which emphasizes that “a science that is free of social utility and political expediency ideas ultimately serves the state and society best”. The Swiss Federal Court did not make such a clear statement at the outset; however, the history of the FC shows that similar considerations also played a role when freedom of science was included in the FC. Thus, even prima facie “useless” research is protected – not only because of the intrinsic value of knowledge, but also because of the assumption that “all great insights are usually intuitions that are proven in retrospect”. Research successes and technological innovation from industrial research with clearly externally prescribed goals – recent examples include research in connection with the COVID vaccine by the company BioNTech – but also from unfree science systems such as the former Soviet Union or even present-day China, seem to empirically challenge this justification, particularly for natural science research. This makes it clear that additional justifications are needed (see N. 8).
8 In the democratic theory justification, the focus is on safeguarding the independence of knowledge and freedom from political influence. A core concern of freedom of science, which it shares with freedom of religion, is the secular state's distancing itself from “any and all timeless truths”. Scientific truth is removed from political determination and judgment. The reason for this is the need for independent knowledge as a basis for decisions in the democratic process. In addition, there is the “protection of rational counter-publicity” to secure liberal structures.
9 Overall, it is clear that none of the justifications has absolute validity – neither the argument that knowledge gain is only possible under free conditions can be maintained, nor does democracy automatically go hand in hand with academic freedom. Rather, the different lines of justification complement each other. While the autonomy-related arguments show proximity to the right to personal freedom (“scientific personality right”), the political-democratic arguments show proximity to freedom of expression. It is therefore true that academic freedom combines elements of the right of personality, communication law, and politics and democracy. However, the representation of academic freedom as a fundamental right of communication, which is often found in teaching, is an oversimplification.
C. Priority conception as a right of defense
10 In Switzerland, academic freedom is first and foremost a subjective right of defense against unjustified state restrictions of freedom. It protects “the intellectual and methodological independence of the researcher from state interference.” The message of the FC 1999 already states that the right does not convey “any claim to state performance”; nor have doctrine and practice so far derived any justiciable performance claims from Art. 20 FC. Beyond the right to equal and non-arbitrary treatment (Art. 8 and 9 FC), there is thus no right to access to higher education or to research funding. In contrast to Germany, there is also no individual right to basic funding in Switzerland. This refers to the right of scientists “to be provided with the basic and minimum resources necessary to fulfill their teaching and research tasks”. Some scholars of constitutional law argue that Art. 20 FC also gives rise to justiciable duties of protection, such as the right to security measures that ensure the safe conduct of scientific events on controversial topics. Especially in view of the current threat situation (see III. E. ), the conceptualization as a primary right of defense seems outdated and a stronger examination of possible positive duties to act is indicated. On access to information, see below N. 26.
11 In addition to the subjective right, the doctrine today also unanimously recognizes an objective dimension of academic freedom. This is generally understood to mean the dimension of fundamental rights as guiding principles or “objective legal requirements” that require the state to implement fundamental rights even beyond the scope of individually enforceable claims. As targets and program requirements, they are primarily aimed at the legislature. In connection with Article 20 FC, the high financial, infrastructure and organizational needs of science are regularly cited as justification, which in Switzerland is the responsibility of the state and “existentially dependent on state support” for its realization. Science thus finds itself in a certain tension between the need for autonomy and state support. However, the specific content of the objective-legal dimension remains little contoured in the literature. This is probably also due to the fact that two areas in which the question could become relevant are usually discussed in the context of the “constitution on education” rather than in terms of academic freedom. This concerns, first of all, the autonomy of the university, which is now explicitly mentioned in Art. 63a FC, and the obligation to promote research, which is laid down in Art. 64 FC. Nevertheless, the objective-legal dimension of academic freedom remains relevant in both areas as a guideline and limit for state action, with the legislature having a wide margin of appreciation. For example, Art. 20 FC requires that procedures for the allocation of funds be designed in a scientifically adequate manner. The objective-legal dimension can also be mobilized in favor of public basic funding, which is often more science-friendly than third-party funding awarded in competition. Furthermore, the duties of action and protection arising from the objective-legal dimension to maintain free science as such are likely to be significant today. These remain below the threshold of direct endangerment of fundamental rights and thus differ from individual justiciable claims for protection.
12 This objective-legal dimension is particularly emphasized in Germany, where the Federal Constitutional Court already emphasized in its 1973 university ruling that, in addition to the subjective right to freedom, freedom of science contains “an objective, value-deciding principle that regulates the relationship between science, research and teaching and the state (...).” Accordingly, academic freedom requires not only respect for individual freedom but also the “state's commitment to the idea of free science and its participation in its realization”. Academic freedom thus not only protects an individual's freedom of action, but also – albeit as a prerequisite for individual freedom – the autonomy of science and thus the “functioning of the institution of ‘free science’ as such”. Freedom of science has therefore also been referred to as a “functional fundamental right” and science, to whose autonomous functioning the fundamental right contributes, as a prime example of an emerging civil sub-constitution or science constitution. The fundamental right thus gives rise to the duty to “[...] enable and promote science by providing human, financial and organizational resources”. Unlike in Switzerland, the dimension of legal guarantees is “resubjectivized” and, under certain circumstances, holders of fundamental rights have legally enforceable claims, for example to a “science-adequate university organization”. To date, the majority of the case law of the Federal Constitutional Court concerns the so-called organizational right and thus the objective dimension of the fundamental right.
13 In Switzerland, too, the discussions today mainly concern restrictions of freedom that affect the organization of university and research in the broadest sense, for example with regard to so-called research sponsoring or excessive administrative tasks for the teaching staff. Today, the threats to academic freedom are different from those at the time of the emergence of the fundamental right, when it was primarily about protecting free science from interference by the state and the church (see I. above). Nevertheless, they can still have an impact on the institute of free research and teaching; a stronger contouring of the objective-legal dimension would therefore also be desirable for Switzerland (see E below). Furthermore, a certain “resubjectivization” of the objective dimension would also strengthen the protection of fundamental rights in Switzerland. This would mean that, under certain circumstances, holders of fundamental rights would be able to take legal action to challenge measures that are inadequate for science, for example with regard to research funding or university organization. This would mean that the question of the compatibility of legislative measures with academic freedom would not be left solely to the legislator, and that, under certain circumstances, legislative action to protect free science could be more strongly demanded.
D. International protection
14 At the international level, freedom of science is implicitly protected by the human right of freedom of expression under the ECHR and the ICCPR (Art. 10 ECHR; Art. 19 para. 2 ICCPR). Freedom of science is also explicitly guaranteed in Art. 15 para. 3 of the International Covenant on Civil and Political Rights (ICCPR). While the Federal Supreme Court does not recognize the justiciability of many of the rights in this Covenant, this is different for this provision because of its clear content in terms of the right to legal recourse. Freedom of science is also explicitly enshrined in Art. 13 of the EU Charter of Fundamental Rights.
III. Commentary in the narrower sense
A. The concept of science
15 Freedom of science under Article 20 FC indisputably includes the sub-areas of freedom of research and freedom of teaching, each of which has its own areas of protection. What these aspects have in common is that only activities that are scientific in nature are covered in order to benefit from the protection of fundamental rights under Article 20 FC. The FC thus assumes certain scientific rationalities that differ from other fundamental rights, in particular freedom of expression, and thus justify a special need for protection. This initially requires a definition of terms, which, however, encounters difficulties.
16 Science studies also assumes that scientific knowledge is a particular form of knowledge. However, it does not provide a single, unified concept of science. While the philosophy of science focuses more on the properties of knowledge itself, the sociology of science is interested in the practices of scientists and how scientific knowledge comes about. The idea of science as a body of objective, verifiable and universally true knowledge, often associated with Karl Popper's critical rationalism as a further development of the logical positivism of the 20th century, has, however, come under severe pressure in recent decades, initially from the field of philosophy of science itself. Researchers such as Thomas S. Kuhn have helped to question the image of a science based purely on facts and logic and to show the influence of other values, for example in the choice of method. In doing so, they provided “a gateway, so to speak, for sociological explanations”. Since then, social science approaches have highlighted the social construction or “co-production” of society and knowledge. Feminist science research, for example, has undermined the image of an impartial science; empirical studies such as those by Bruno Latour show in detail the “construction” of knowledge in the laboratory. Paul Feyerabend, a radical relativist/social constructivist voice who is now considered part of postmodernism, even questioned the very idea of rationality and methodological stringency and concluded: “anything goes”.
17 From a constitutional perspective, and regardless of these debates, the FC assumes the possibility of science. The limits to academic freedom are therefore not to be determined according to epistemic-philosophical criteria, but rather constitutionally. In other words, it is not the task of constitutional law to put an end to the debate on the definition of science; rather, the law should create the framework for these debates to take place as freely as possible within the scientific community. The law must therefore define the underlying concept of science itself. However, neither the FC nor the materials substantiate the term; even the Federal Supreme Court has only made rudimentary statements on the subject. The description of academic freedom as a “guarantee of an inviolable creative core of scientific knowledge and teaching, as well as the preservation of the intellectual and methodological independence of research” in turn only refers to the requirement of the scientific nature of knowledge and is therefore not a definition.
18 Attempts at definition, as they have been undertaken many times in the literature, run up against the difficulty that, on the one hand, the state is prohibited from adopting a particular understanding of science, since the fundamental right to scientific knowledge is precisely intended to elude state determination (prohibition of identification). Relying solely on the self-declaration of scientific work is not enough to distinguish science from non-science; it must be possible to make a meaningful distinction from other, subjective forms of communication and from pseudoscience. In teaching, there seems to be a consensus, as a middle way, that it makes sense to feed back the constitutional concept of science to the scientific community and to specific scientific practices. However, relying on recognition by the scientific community entails new risks of a restriction of freedom, since the fundamental right is specifically intended to enable free science and thus also to protect minority opinions and new, innovative or even unexpected approaches.
19 In view of the protective purpose of the standard, it seems appropriate overall to take a broad concept of scientific nature, which is shaped by existing practices of the scientific community but is not limited to them. Central to this is a systematic and method-driven approach, which implies the verifiability and intersubjective traceability of the results.
20 For a long time, a special debate in the philosophy of science revolved around the question of whether legal studies can also claim the label of scientificity. This is connected to the changing subject of jurisprudence, which cannot be studied like a “law of nature”, but also to the practical nature of the subject and the often blurred boundaries between research and practical activity. Another point concerned the methodology of jurisprudence, or rather its absence: for a long time, it only played a subordinate role alongside hermeneutics and comparative law. This has since changed, probably also due to internationalization and the increasing relevance of the application process for the Swiss National Science Foundation, which is characterized by the natural sciences. What remains is that jurisprudence is shaped by norms, values and interpretations and that legal questions cannot be answered with the same precision as mathematical tasks. Nevertheless, there are limits to what can be considered a convincing argument when legal rules of interpretation are systematically applied. In any case, a concept of science that insists on empirical verifiability can now be considered outdated. Today, there is broad consensus that the systematic development and understanding of meaningful connections beyond “hard” causal relationships, as practiced in the humanities and social sciences, can also be considered science. Instead of empirical verifiability, the term intersubjective comprehensibility is often used today. Applied to jurisprudence, this means that a legal answer is reached and justified in such a way that a third person can understand it and, using the same methods, may come to the same conclusion.
21 An important question is whether scientific misconduct such as falsification of data and plagiarism leads to the loss of scientific character. The schools of thought on this diverge. In order not to undermine the protection of freedom, the view that high demands must be placed on the elimination of misconduct is preferable. This means that not every case of misconduct automatically leads to a loss, but only in cases of systematic misconduct. When assessing allegations, it makes sense to include self-regulation standards; examples include the Code of Scientific Integrity of the Swiss Academies of Arts and Sciences, the Rules for Safeguarding Good Scientific Practice of the Max Planck Society or the standards of the Committee on Publication Ethics (COPE).
22 Difficult questions of demarcation can also arise in the commercialization of science. While the prevailing opinion in Switzerland denies that research that is geared towards results and bound by instructions can be considered scientific, a more differentiated view is also preferable here. After all, science should not be idealized. While disinterestedness – understood as the absence of primarily self-serving interests – is one of the basic norms of scientific ethics in the research process, it is undisputed in the philosophy of science today that the postulate of disinterestedness and independence cannot be maintained in its absoluteness. In times when industrial research plays an eminently important role and a clear distinction cannot be made between basic and applied research, the decisive factor for the protection of fundamental rights is that commercial interests do not constitute the main motivation and that the underlying research observes methods and standards of scientific knowledge acquisition.
B. Material scope of protection
1. Freedom of research
a. General
23 The case law on freedom of science is limited and the scope of protection has thus remained unclear. The Federal Supreme Court has consistently defined research as the “gathering and sharing of human knowledge through the free choice of research questions, methods and implementation”. It emphasizes that both natural science approaches and “those in the humanities, social sciences and history” are protected. In view of the still prevailing understanding in everyday use, according to which scientific research is equated with the natural sciences, this clarification is still not superfluous. The type of research funding (private or public), the location of the research (university, university of applied sciences, industry) and the type of research (basic or applied research) are also irrelevant for the protection of research. The limit is reached, however, where research is not carried out under conditions of scientific rigour (see above, N. 22). When it comes to the question of when instruction-dependent or result-oriented research leads to a loss of protectability, the doctrine remains unspecific. According to the differentiated consideration in the German literature, the degree of autonomy or the existence of sufficient leeway for researchers to make their own assessments should be decisive. Although difficulties in demarcation are inevitable, this differentiated consideration should be preferred if only to avoid excluding industrial research, which by definition operates in a results-oriented manner, from the scope of protection from the outset.
24 In order to describe the protected activities in more detail, the doctrine differentiates between the work and the effect of research freedom, following the various phases of the research cycle. The work area refers to the research activity and also includes the phase that precedes the actual research (e.g. determining the research question; selecting the method; selecting the personnel). In contrast, the effect area describes the freedom with regard to the dissemination of research. On the one hand, this includes the decision as to whether research results should be made available to the public at all. On the other hand, the decision regarding the time, place and modalities of publication is also protected. In German literature, this is referred to as the (positive and negative) freedom of publication. This dimension illustrates the proximity of academic freedom to fundamental rights of communication. However, scientific authorship in the sense of intellectual authorship and thus an aspect of personal rights is also protected.
25 Recently, the question has arisen, which has hardly been discussed in Swiss academia, of whether the communication of researchers outside of strictly scientific formats falls within the scope of the law. This includes, for example, writing blog posts, but also social media activities or appearances in the media. In view of the fact that active communication of one's own research is increasingly being called for to bridge the alleged gap between science and society, for example by the SNF (keyword “science communication”), and in view of the active use of these possibilities by the scientific community, an understanding limited to scientific formats in the narrower sense no longer seems appropriate. Social media such as X (formerly Twitter) now play an important role in the context of gathering information and knowledge. However, they follow a media logic rather than a purely scientific one and can tempt people to make exaggerated statements, which can raise difficult questions regarding the limits of freedom of expression. A certain potential for abuse is seen in the fact that scientists enjoy a “bonus of authority” in society. To put it bluntly, the question arises: is every statement by a constitutional law expert on current constitutional debates automatically covered by academic freedom and thus enjoys increased protection? Despite the difficulties in defining the boundaries, the content of the statements and not their place of distribution is likely to be decisive for the opening of the area of protection of Art. 20 FC. In case of doubt, a broadly defined concept of scientific nature should be applied, although constitutional law also has limits (see below N. 47 for examples).
b. Specific issues
26 One question that has arisen repeatedly in practice is whether the freedom of science gives rise to a right of access to information that goes beyond the general right to information. Article 16 para. 3 FC limits the right to receive information to publicly accessible sources, with legislation determining what information is considered public. The Federal Court rejected in principle a claim arising from non-public information from the freedom of science and came to the conclusion that an infringement of the constitutional right of access to information by Art. 20 FC could not be assumed lightly. At the same time, it recognized that the possibility could nevertheless arise in the case of “a specific research approach and a resulting research-related necessity (...)”. In a more recent decision, it also stated that the interest in inspecting archive material before the end of the protection period is reinforced by academic freedom.
27 The question of the extent to which the autonomy of the university guarantees this freedom in shaping its research and teaching profile before it is determined by the state has been little discussed in the literature. It seems clear that a complete state determination, which does not leave universities any leeway in their design, would be inadmissible. One limit to the exercise of autonomy arises from the individual freedom of research, which is to a certain extent in tension with the autonomy of the university.
c. Freedom of research and “Open Science”
28 In the digital age, is there a fundamental right to free access to (publicly funded) research via the internet? This question has become increasingly important since the UN Committee of Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights, in a much-publicized “General Comment” on the “right to science” under Art. 15 para. 2 let. b) of the UN Covenant, called on states to promote “open science”. “Open science” is a collective term for various research practices along the entire research cycle based on the idea of sharing and collaboration. Particularly relevant to everyday scientific work are open access to data (open data) and to scientific publications (open access). Although numerous questions and problems arise today (see N. 30), open science is generally considered to be science-friendly, which is due to the fact that publishing and accessibility are key concepts for the entire science system. The internet, with its unprecedented communication potential, was therefore seen at the beginning of the new millennium as an opportunity to realize fundamental scientific values such as Merton's norm of communalism. As part of the “normative structure” of science described by the sociologist of science Robert K. Merton, this norm states that scientists should share their findings freely in order to promote the progress of science as a whole, rather than withholding them for personal gain. The concept of communalism thus emphasizes the importance of openness, collaboration and collective engagement in science. These ideas are echoed in early documents of the 'open access' movement such as the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities and the Budapest Open Access Initiative.
29 This raises the question of whether the state's duty to create the conditions for a functioning science could result in an “open science” imperative. The Swiss Open Access Strategy also aims to make all publicly funded research publicly available in the sense of “open access”. Others argue that, due to the fact that the public is virtually a functional condition of science, individual protection through academic freedom should be made dependent on the actual publication of results. In the digital age, this would mean making one's own research publicly accessible in the sense of “open access”. However, the prevailing doctrine generally rejects a publication requirement as a precondition for the protection of fundamental rights due to the negative freedom of publication. Although keeping research secret for commercial reasons is scientifically problematic, it should not automatically lead to exclusion from the scope of protection.
30 Overall, “open access” obligations are in tension with negative freedom of publication. Some scholars also see a violation of negative freedom of publication in the “open access” strategy of the Swiss National Science Foundation. In Germany, members of a university have even gone to the Federal Constitutional Court because of a university statute that obliges them to deposit their published research in publicly accessible Internet repositories after the statutory one-year period has expired. According to the view presented here, “open access” publication obligations should not be problematic under constitutional law, despite unintended side effects (see N. 31). Since publication modalities are affected, this is an infringement of fundamental rights; however, particularly in the case of only a slight infringement of fundamental rights by the obligation of “secondary publication”, i.e. depositing the publication in a publicly accessible repository such as ZORA of the University of Zurich, the infringement is likely to be justified by the public's and third parties' interest in access and in a functioning scientific system.
31 Conversely, the question arises as to whether the state has a duty to take measures to protect a functioning publication system based on the objective dimension of academic freedom. For example, competition-distorting forms of market concentration have long been known to exist among major international academic publishers. The trend away from the so-called subscription model and towards open access may have even exacerbated this problem. One important criticism of the SNSF's funding policy is that the open access requirement leads to a further strengthening of large publishers – at the expense of smaller providers. Another problem is the potential decline in quality, because publication fees create incentives for publishers to publish as many contributions as possible, rather than focusing on high quality. This is not only problematic because of the high price burden on the public sector, but also because of the influence of large publishers on science. In recent years, for example, publishers' interference in editorial work has repeatedly led to resignation on the part of journal editors. The problem has become even more acute in recent times because large international publishers are increasingly turning to the data business and using the tools developed by Google and others to analyze user behavior, giving them unprecedented opportunities to exert influence. This proves that threats to the independence of science and academia – which are relevant to fundamental rights – today come not only from state actors, but also from powerful private actors. Since the latter are not directly bound by fundamental rights, the question arises as to what protective measures the state could take, for example, measures under competition law. It also seems necessary under fundamental rights to promote alternatives to the problematic “golden” “open access” model, in which high fees are charged for publications and which primarily serves large publishers.
2. Freedom of teaching
32 The partial content of freedom of teaching protects the freedom of teaching. The protected activities include freedom with regard to teaching methods and the selection of material. In other words, freedom of teaching is a “freedom of opinion specifically adapted to scientific teaching.” Parallel to freedom of research, not only university teaching but teaching in the entire higher education context is covered; it also makes sense to cover the imparting of knowledge to a broader audience outside the lecture hall. As with research freedom, it is also necessary that the criterion of the scientific nature of teaching is fulfilled, which requires the teaching of the respective subject-specific rationales within the scope of the students' abilities and the ability to critically examine scientific positions. However, it does not have to be about teaching one's own research, which realistically would not be possible today. Pure vocational training and education at general education schools are not included. Online teaching and newer formats such as podcasts or YouTube channels also fall under the scope of protection. The primary focus is on teaching activities for which the lecturer is personally responsible; teaching activities that are subject to directives, such as tutorial support for lectures, which are carried out by assistants but for which professors are responsible, fall outside the scope of protection according to prevailing doctrine. This is too categorical in this clarity, especially since many assistants bring their own teaching style to the table and should also not be allowed to help shape courses for which they are not personally responsible, which argues in favor of extending protection.
3. Freedom to learn?
33 The inclusion of freedom to learn as a third independent part of the content was rejected in the parliamentary deliberations. Nevertheless, a large proportion of the teaching community now demands the recognition of freedom to learn, either as an independent part of the content or as a sub-category of freedom of teaching. Ultimately, this reflects Humboldt's idea of a community of teachers and learners and of exchange in mutual respect. According to this view, freedom of learning includes the right of students to be able to organize their studies free of disproportionate regulations. Students' own cognitive processes are also protected, free from constraints to adopt the ideological or political values of the teaching staff. However, it is questionable whether such suppression by the “authority of the teaching staff” would be covered by freedom of teaching at all. This is particularly relevant when writing seminar papers and theses; as soon as students have the appropriate scientific tools and work independently, they are in any case protected by freedom of research, which is likely to be particularly relevant in advanced studies.
34 In practice, questions have arisen in connection with higher education, in particular regarding possible positive legal obligations or subjective claims. However, the Federal Supreme Court deals with these primarily under the heading of freedom of occupation under Art. 27 para. 2 FC and personal freedom under Art. 10 para. 2 FC. In this context, it has emphasized in connection with admission restrictions (numerus clausus) that there is no constitutional right of access to university studies; this applies a fortiori to special courses of study. Article 19 FC merely guarantees the right to sufficient and free primary education, while vocational education and training is a social objective to be specified by the legislature (Article 41 FC). However, Art. 8 and 9 FC do have a certain “indirect fundamental rights effect” and guarantee a “right to a non-arbitrary and equal-rights regulation for admission to the available study places”. This right already arises from Art. 8 FC and 9 FC. Some scholars derive from Art. 8 FC a right to scholarships in case of financial need as well as fee reductions. There is no entitlement to not having to take exams. In a not yet published decision, the Federal Court recently upheld the complaint of a candidate for a degree in veterinary medicine who had not been given additional time to take the admission test by the University of Bern due to a reading disorder (dyslexia). Such subjective claims, for example for adapting exams for people with disabilities, would be timely and welcome.
C. Personal scope of protection
35 Initially, natural persons, regardless of their age or nationality, are entitled to fundamental rights. Analogous to the material scope of protection, the context of the scientific activity is irrelevant, i.e. whether it takes place within or outside of a university or even privately, as long as the criterion of scientific nature is fulfilled. In this context, formal qualifications are also irrelevant; in this respect, any person can invoke academic freedom. “The scientific community is constituted by a concrete discourse, the coherence of which is established by qualitative criteria of rationality, but not by formal membership.” This also applies to students, provided that they carry out independent scientific research. Legal entities under private law can also invoke scientific freedom if the corresponding research activities take place under conditions of scientific nature (for the term, see III. A. above).
36 State universities have a “hybrid” or “dual role”. On the one hand, they are directly subject to fundamental rights (Art. 35 para. 2 FC); on the other hand, they may also be entitled to fundamental rights under certain circumstances. This is initially the case if they take action against violations on behalf of the researchers concerned. In addition, universities can also invoke violations of their own autonomy. The Federal Supreme Court derives the autonomy of universities – at both the federal and cantonal level – from Art. 63a FC and not from academic freedom.
D. Restrictions
1. Interference
37 The concept of the guarantee of Article 20 FC as a right of defense means that the state must in principle refrain from measures that interfere with academic freedom. Interference may come from any public authority, i.e. from state bodies at all levels in central and decentralized administration, as well as from private individuals in the performance of public duties (Article 35 para. 1 FC). This also includes the cantonal universities and the ETH, as well as the Swiss National Science Foundation. It should be noted that research and teaching are already restricted from the outset due to their need for state organization, for example through study and examination regulations, available infrastructure, resources, etc. This organization of academic freedom may, but does not have to, imply a restriction in the constitutionally relevant sense and must be examined on a case-by-case basis. The transfer of competencies from the cantons to the federal government in the area of the regulation of science (see below) has reduced the Federal Court's ability to monitor the legislature's compliance with scientific freedom (Art. 190 FC).
38 Adverse effects can occur both directly and indirectly. Justifiable direct adverse effects arise, for example, from regulations regarding or even banning research subjects and methods. One example is the Stem Cell Research Act (StRA), which implements Art. 119 FC and prohibits, among other things, the creation of embryos for research purposes, changes to the genetic material of a germ cell or the extraction of embryonic stem cells from it, as well as the creation of clones, chimeras or hybrids (Art. 3 para. 1 lit. a-c StRA). The Human Research Act (HRA) regulates research on humans and defines in Art. 5 when a scientifically relevant question is posed. In principle, guidelines issued by universities regarding research and teaching, for example as part of their profile development, such as setting priorities, also require justification. Furthermore, licensing and reporting requirements, such as those for clinical trials on humans under the Therapeutic Products Act (TPA) or experiments on animals under the Animal Welfare Act (TschG), are to be seen as impairments. Further examples are civil or criminal proceedings against individuals protected by academic freedom due to scientific statements, entry or exit restrictions, disciplinary proceedings, and, more recently, requirements regarding language rules or trigger warnings. Trigger warnings in university teaching are notes or advance warnings that alert students to the fact that certain content in the upcoming lessons could potentially be distressing or emotionally disturbing. Publication requirements and prohibitions, or regulations regarding publication modalities, also initially represent an infringement of academic freedom. This applies, for example, to open access obligations as well as to guidelines regarding the use of social media channels by researchers. Excessive teaching, examination or administrative duties can indirectly impair academic freedom; the same applies to evaluations of individual research performance. These can cause researchers to favor certain research topics – such as those that are more promising – and thus have a “chilling effect”. The same applies to the growing pressure to raise third-party funds.
2. Justification
39 All encroachments on Art. 20 FC are subject to the general requirements of Art. 36 FC. The legal situation is different in Germany, where academic freedom is an unconditional fundamental right. This does not mean that it is granted without restriction; rather, the restrictions are determined by the constitution itself, i.e. they arise from the protection of other legally protected interests that are guaranteed under constitutional law. Nevertheless, this means a higher level of protection compared to fundamental rights that are not unconditionally guaranteed.
40 However important science is for today's society, historical experience has also clearly shown the potential for abuse as well as the particular dangers and risks that may emanate from it, of which the invention of the atomic bomb is a prime example. Research with viruses, for example, can provide important new insights for combating diseases, but on the other hand it can also be used to produce biological weapons (“dual-use dilemma”). Recently, this issue has been discussed in particular in the context of artificial intelligence. This ambivalence is reflected in various constitutional provisions that both enshrine and limit scientific freedom. For example, Art. 21 para. 2 of the Bernese cantonal constitution states: “People working in science, research and teaching shall take responsibility for the integrity of the lives of humans, animals, plants and their livelihoods.” Similar rules apply to “civil clauses”, according to which research and teaching may only serve peaceful purposes, but also to constitutional clauses, according to which freedom of science does not release from loyalty to the constitution.
41 Article 20 FC contains no such restriction. Nevertheless, scientific research in Switzerland is subject to a dense network of regulations that set limits to freedom. This applies to research on humans (Art. 118b FC), reproductive medicine and gene technology in the human field (Art. 119 FC) and gene technology in non-human fields (Art. 120 FC). These constitutional requirements are specified in various laws, in particular the RDA, the HRA and the TPA. The Anima Protection Act (TSchG) is also relevant, as are data protection regulations (Art. 13 para. 2 FC and cantonal and federal laws).
42 The first justification within the meaning of Article 36 para. 2 FC is the protection of the fundamental rights of third parties. These include, in particular, human dignity (Article 7 FC), personal liberty (Article 10 para. 2 FC) and informational self-determination (Article 13 para. 2 FC). Other fundamental constitutional objectives, such as the dignity of creation (Art. 120 para. 2 FC), environmental protection (Art. 74 FC) and the protection of public health (Art. 118 FC) are also legitimate interests. Measures to protect a functioning scientific system, such as quality assurance in research and teaching, can also constitute a public interest that serves as justification within the framework of proportionality. With regard to the weighing of interests, the Federal Court has emphasized in connection with animal protection (Art. 80 FC) that freedom of research does not enjoy general priority over other constitutionally protected values; rather, the interests in question are of equal rank and must be weighed against each other in each individual case. The expected gain in knowledge plays a role in this. The Federal Supreme Court ruled that an absolute ban on research on germ cells on the grounds of human dignity was unconstitutional, whereas a ban on research on living embryos or foetuses was constitutional.
43 The Federal Court has not yet ruled on the core content of freedom of science as defined in Article 36, para. 4 FC. The prevailing doctrine seems to be that the prohibition of systematic pre-publication content censorship as set out in Article 17, para. 2 FC applies to all fundamental rights of communication and thus also to the dissemination of research results as the communicative content of freedom of science. A minority opinion argues that it would be contradictory not to qualify research bans in the area of dual-use research as violations of the core area, although they are serious encroachments on fundamental rights, whereas publication bans are. Thurnherr points out that some legal scholars do not classify forms of systematic prior content control, such as the pre-screening of pharmaceutical advertising, as an interference with the core area. It is clear that preventive controls are serious interventions in fundamental rights of communication, which, in the context of justification, lead to high demands in terms of the level and density of norms.
E. Current challenges and discussions
1. Traditional threats are re-emerging
44 Internationally, academic freedom is increasingly considered to be at risk. In times when the rule of law is coming under increasing pressure in Europe, reprisals against researchers are on the rise. In Hungary, for example, the closure of the Central European University in 2019 caused an uproar; in Turkey, the mass dismissals at universities in the wake of the failed coup d'état in 2016. Technical possibilities and digital tools can also lead to new types of threats. In recent years, there have been increasing warnings about the potential for abuse of the systematic collection of metadata when using digital infrastructure and the associated surveillance possibilities in science. But threats to academic freedom are not limited to illiberal states and new technologies. The Academic Freedom Index concludes that academic freedom has declined globally since 2006. In Switzerland, the value has remained stable over the last ten years: in 2023, it reached a value of 0.85 on a scale of 0 to 1.
2. New threats
a. 'Cancel culture'
45 In Western democracies, including Switzerland, possible new threats have been discussed in recent years. These include, first of all, the widespread concern that the space for scientific discussion is increasingly narrowing due to excessive political correctness and that there is a moralization and politicization of science, particularly by 'woke' (alert) left-wing circles. There is often talk of a dictatorship of political correctness imported from the USA, tyranny of the minority or even enlightened totalitarianism. This leads to a “cancel culture” or “discourse control” at the university, which means the “muzzling of representatives of socially unpopular scientific perspectives”. Examples cited – often with great media impact – are cases in which professors are “denounced” for statements made on social networks or students protest against or even prevent certain events from being held at universities in order to avoid providing a platform for the speakers (“no platforming”). Student demands for “safe spaces” or “trigger warnings” are also cited as examples of excessive political correctness or wokeness and as a threat to academic freedom, in this case in particular in the form of freedom of teaching. However, studies suggest that individual cases are often greatly exaggerated by the media and that talk of “cancel culture” is often instrumentalized by conservative or sometimes even illiberal forces to reverse the situation. In other words, the accusation of “canceling” is often used to shield existing privileges from justified criticism and to defend them. One example is to dismiss student criticism of exams or teaching materials that reproduce stereotypical social conditions – for example, depicting women as housewives or people with a migration background as criminals – simply as the sensitivities of the “snowflake” generation. While the fight against cancel culture is presented as the “spearhead of a defensive liberalism”, in reality it is “part of the backlash that is threatening liberal democracy in the first place.”
46 From a constitutional law perspective, it can be said that academic freedom probably does not confer an entitlement to university safe spaces and language rules, nor do student demands for such spaces violate the freedom of higher education faculty to teach. On the other hand, the fundamental right may give rise to a claim for protection against violent disruption of scientific events. Such a claim may also arise if scientists find themselves exposed to attacks on social media because of scientific statements; in such cases, Article 20, in its protective dimension, may require the university to protect its researchers, for example by making a public statement. Overall, especially in view of the central epistemic and democratic function of academic freedom in an open society, confrontations with content that may be uncomfortable and that may deviate from one's own position appear to be important. Both students and teaching staff have to endure this. 'Cancel culture' thus appears to pose a particular threat to academic freedom in that it fuels an anti-intellectual mood and thus endangers free research as an institution in the longer term.
47 State-sponsored measures to regulate academic discourse, which appear to be on the rise in Western European countries in particular, can be classified as classic infringements of academic freedom. Accordingly, it may constitute an unjustifiable infringement of academic freedom if, for example, university management introduces binding language rules, regulates the use of social media by professors, cancels guest speakers already invited because of the threat of protests, or even dismisses members of the teaching staff because of statements made, for example in the lecture hall. When assessing whether there has been an infringement of academic freedom, difficult questions may arise regarding the demarcation between academic freedom and freedom of expression and between “objective facts” and subjective expressions of opinion. However, these questions are unavoidable if one wants to maintain an independent area of protection for academic freedom. You don't have to take a radically social-constructivist position to recognize that science is never completely apolitical and neutral, and that it is not “outside of society”. Nevertheless, from a constitutional perspective, there are limits to what can still be considered science. Exaggerations and even slightly tendentious communication of content in the lecture hall or on social networks should be covered by the freedom of science; hate speech, racist statements and polemics, on the other hand, should not even meet the minimum requirements of rationality to fall within the scope of protection of Art. 20. On the other hand, it would be an unjustifiable infringement if entire research areas such as gender studies or postcolonial and critical theories were to be cut off from funding by politicians because they are considered “pseudoscience” and “woke” activism under the guise of science. It is precisely within science that it must be decided what counts as science and what does not; Art. 20 FC prohibits the state from deciding these discussions politically.
b. “Politicization” and “economization” of science
48 Less media attention is paid to subtler threats to freedom in times of “economization” and “politicization” of science, although, for example, according to surveys, far more researchers feel constrained by the pressure to publish quickly than by “political correctness”. The buzzword “economization” refers to the general convergence of science and business and the resulting stronger orientation of research towards economic utility; “politicization” refers to the tightening coupling between science and politics, or knowledge and power. Both phenomena are closely related to the increase in the importance of science and thus the “increase in the value of the currency ‘knowledge’” in today's society. There is a great demand for the resource of knowledge in both the economy and politics, for different reasons in each case; science, in turn, depends on both systems for its financing needs.
49 Paradoxically, it is precisely this important position of science that leads to new vulnerabilities and opportunities for influence. The influence of economic actors weakens the disinterestedness of research and even carries the risk of manipulation of research processes for profit. This damages the integrity and credibility of science, which is already facing increased pressure in times of populism. In Switzerland, private “sponsorship” in particular has been critically analyzed from a fundamental rights perspective. The increased recourse to scientific knowledge in politics, in turn, means that experts are increasingly drawn into political conflicts and, intensified by the “mediatization of the expert role”, can come under fire from the public. Hirschi describes how recent crises, from the euro crisis to the corona and climate crises, have intensified these processes and contributed to the polarization of democratic discourse. The call for more efficiency in science and for accountability to the public, which is closely linked to the described tendencies and goes hand in hand with the use of economic control mechanisms (“New Public Management”) in the higher education sector, also has repercussions on scientific processes – and often unintended side effects. The instruments used include measuring the “impact” of research on the basis of bibliometric data in the context of evaluations or the “projectification” of research funding, which refers to the allocation of research funds in a competitive process. Although not as pronounced as in other countries, state research funding in Switzerland has also developed more in the direction of performance- and competition-oriented principles in recent years. The project-based allocation of funds creates incentives to align with “fashionable topics” that can be used to attract third-party funding; measuring research in terms of numbers fuels the dynamics of “publish or perish” and causes researchers to split their results into as many publications as possible (“salami slicing”).
50 Although these attempts at control can have a chilling effect in individual cases, they often remain below the threshold for intervention in actual violations of fundamental rights. Rather than posing a direct threat to individual fundamental rights, they affect the autonomy of science as such and thus the framework conditions for free research. These subtle threats are difficult to grasp on the basis of the dominant defensive legal conception of academic freedom and instead draw attention to the protection of the institution of free science as the basis for the exercise of individual freedoms.
About the author
Dr. iur. Raffaela Kunz is an SNSF Swiss Postdoctoral Fellow and lecturer at the University of Zurich. Previously, she was a fellow at the Collegium Helveticum in Zurich and a research associate at the Max Planck Institute for Comparative Public Law and International Law. In her habilitation, she examines the opportunities and challenges for academic freedom in the digital age. She is a board member of the Onlinekommentar and a member of the Center for Human Rights Studies at the University of Zurich and the Young Academy Switzerland.
Recommended further reading
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