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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Freedom of Scientific Research

Irene Spigno

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 25 May 2019

Subject(s):
Comparative constitutional law — Education policy — Development

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Definition

1.  Freedom of scientific research is a complex right. It can be defined as the freedom to conduct a ‘systematic investigation into and study of materials and sources in order to establish facts and reach conclusions’ (Oxford Dictionary of English (2010) 1510), ‘based on or characterized by the methods and principles of science’ (Oxford Dictionary of English (2010) 1593).

2.  Scientific research is a methodical and systematic activity performed through intellectual and, in some cases, experimental activities in order to increase or modify knowledge about a particular subject or issue (Gómez Sánchez 3). Thus, it is different from technical (the old tekhné) (Brufau Prats) and ordinary knowledge (which is reached by experience and common sense; Bunge 319, 320, and 324).

3.  The ultimate goal pursued by freedom of research is science. It derives from the Latin word scientia and is concerned with ‘the cognition of logical relations, the inter-relationship between natural and social phenomena[,] and with the theory of cognition’—cognition that ‘can only be drawn phenomenologically on the basis of adopted methods, and in the light of the possible content of other realms of human existence’ (Starck 112).

4.  In this context, science and scientific research must be considered as concepts that include not only the physical, experimental, and natural sciences, but also the humanities, philosophy, social sciences, and even traditional and indigenous knowledge (Shiva 27; Constitution of Kenya: 27 August 2010, Main Text, Chapter 2 The Republic, Art. 11 Culture, para. 2 let. b (Kenya)). The more comprehensive meaning of the word science is supported also by the Basic Law for the Federal Republic of Germany: 8 May 1949 (as Amended to 13 July 2017) Main Text, Title I Basic Rights, Art. 5 (Freedom of Expression, Arts and Sciences), para. 3 (Ger) (the term used is Wissenschaft; Starck 110)) and by the Federal Constitutional Court of Germany (Bundesverfassungsgericht) in the Hochschul-Urteil decision (1973) 128 (Ger), according to which scientific activity is that which ‘in form and content, must be considered a serious scheduled attempt to ascertain the truth’. Furthermore, Article 5, paragraph 3 does not protect a specific conception of science or scientific theory: rather it includes all research activities together with the necessary preparatory and stimulating measures (Knoepffler and Dettweiler (2002)).

B.  Origin and Gradual Recognition

5.  The birth of modern science can be chronologically situated in the sixteenth century (Peces-Barba Martínez 127, 133, and 134), and scientific knowledge started to have consequences on the economy and social organization from the eighteenth century (Steward).

6.  With the formulation of more advanced theories, science has become increasingly remote from society at large (Nencini 11). Gradually, despite various attempts to popularize it, society began to develop a fear of science: first because of the involvement of scientists in the conflicts of the twentieth century, and especially the design and construction of atomic and chemical weapons; and secondly, on account of the role of science as a source of legitimation for restrictive state policies on individual personal freedom—such as coercive health policies, including laws for the control of human reproduction and to improve the biological quality of the species.

7.  Although scientific research only became the subject of constitutional interest at the close of the Second World War—when the need to recognize it in constitutions was considered a fundamental means of avoiding the recurrence of twentieth century eugenic policies—we can also find some traces of it in the preceding liberal era. Freedom of scientific research was recognized for the first time in Article 152 of the Frankfurt Imperial Constitution (Paulskirchenverfassung): 27 March 1849 (Ger), according to which ‘[s]cience and teaching are free’ (Mirkine-Guetzevich 87). This first constitutional recognition was later followed by Article 20 of the Prussian Constitution: 31 January 1850, and by Article 142 of the Weimar Constitution (1919), according to which ‘[a]rt, science, and its teaching are free. The [s]tate guarantees the protection and ensures its promotion’.

C.  Comparative Analysis

1.  Scope

9.  As a constitutional concept, the freedom of scientific research must include an ethical component: only scientific research methodologically addressed to seeking the truth and analysing the different elements of nature and society with intellectual autonomy should deserve legal protection (Starck 111).

10.  Moreover, under the constitutional paradigm, scientific research must be considered in a broad sense to include ‘scientific creativity’ (among others, Constitution of the Republic of Kosovo: 9 April 2008, Main Text, Chapter II Fundamental Rights and Freedoms, Art. 48 Freedom of Art and Sciences (Kos); Constitution of the Russian Federation: 12 December 1993 (as Amended to 21 July 2014) Main Text, The First Section, Chapter 2 Rights and Freedoms of Man and Citizen, Art. 44, para. 1 (Russ)); ‘scientific creation’ (eg, Constitution of the Republic of Moldova: 29 July 1994 (as Amended to 14 July 2006) Main Text, Title II Fundamental Rights, Freedoms and Duties, Chapter II Fundamental Rights and Freedoms, Art. 33 (Mold), which explicitly prohibits any form of censorship on it); ‘scientific work’ (eg, Constitution of the Republic of Lithuania: 25 October 1992 (as Amended to 1 June 2006) Main Text, Chapter III Society and the State, Art. 42, para. 3 (Lith); ‘scientific development’ (eg, Constitution of the former Yugoslav Republic of Macedonia: 17 November 1991 (as Amended to 12 April 2011) Main Text, II Basic Freedoms and Rights of the Individual and Citizen, 2 Economic, Social and Cultural Rights, Art. 47 (Maced); and ‘scientific endeavour’ (eg, Constitution of Slovenia: 23 December 1991 (as Amended to 24 May 2013) Main Text, II Human Rights and Fundamental Freedoms, Art. 59 Freedom of Science and the Arts (Slovn)).

11.  It is possible to identify two main models of explicit regulation of freedom of scientific research in contemporary constitutionalism. On one hand, there are constitutions in which this freedom enjoys constitutional protection in its own right. In reality, the majority of the constitutions approved after the Second World War explicitly recognize the freedom of scientific research (65 out of a total of 194 constitutions and constitutional texts analysed explicitly mention scientific research). On the other, there are constitutional texts which do not specifically contain a clause on scientific research: in this case, freedom of scientific research can be protected implicitly through a freedom of expression clause—as in: the Bill of Rights of the United States Constitution: 15 December 1791, First Amendment (US); Post (2009) and Ferguson (1979); the Canada Act: 17 April 1982, Schedule B Canadian Charter of Rights and Freedoms, Section 2 Fundamental Freedoms (Can); the Basic Law for the Federal Republic of Germany: 8 May 1949 (as Amended to 11 July 2012) Main Text, Title I Basic Rights, Art. 5 (Freedom of Expression, Arts and Sciences), para. 3 (Ger); and the Constitution of Spain: 6 December 1978 (as Amended to 23 August 2011) Main Text, Part I Fundamental Rights and Duties, Chapter 2 Rights and Freedoms, Art. 20 para. 4 (Spain). According to the Supreme Court of the United States, the First Amendment also protects ‘freedom of inquiry, freedom of thought, and freedom to teach ... indeed the freedom of the entire university community’ (Griswold v Connecticut (1965) 484 (US)). In this case, the limitations established with reference to freedom of expression are also applicable to the freedom of scientific research.

12.  Freedom of scientific research can also be protected through the inclusion of an academic freedom clause (such as Constitution of Italy: 22 December 1947 (as Amended to 20 April 2012) Main Text, Part I Rights and Duties of Citizens, Title II Ethical and Social Rights and Duties, Art. 33 (It) stating that ‘[t]he [r]epublic guarantees the freedom of the [a]rts and sciences, which may be freely taught’ and Constitution of Chile: 21 October 1980 (as Amended to 20 October 2015) Main Text, Chapter III Of Constitutional Rights and Duties, Art. 19, n. 12 (Chile); Ahumada Canabes).

13.  There are some constitutions in which freedom of scientific research is subject to religious influence. The fundamental beliefs of Islamic doctrine are a value that should not be infringed by freedom of opinion and scientific research according to the Constitution of the Kingdom of Bahrain: 14 February 2002 (as Amended to 3 May 2012) Main Text, Chapter II Basic Constituents of Society, Art. 7 (Bahr), while the highest respect for religious values should guide the government in the search of the advancement of science and technology in the Constitution of the Republic of Indonesia: 18 August 1945 (as Amended to 11 August 2002) Main Text, Chapter XIII Education, Art. 31, para. 5 (Indon).

14.  Some constitutions consider scientific research as one of the activities in which the recognition of an official language of the state should not affect the right of national minorities to use their native languages (under, for example, the Constitution of Mongolia: 13 January 1992 (as Amended to 14 December 2000) Main Text, Chapter One Sovereignty of Mongolia, Art. 8 (Mong)), while special consideration is due under Constitution of Slovenia: 23 December 1991 (as Amended to 24 May 2013) Main Text, II Human Rights and Fundamental Freedoms, Art. 64 Special Rights of the Autochthonous Italian and Hungarian National Communities in Slovenia (Slovn) to the autochthonous Italian and Hungarian national communities and their members, who are guaranteed the right to develop scientific and research activities (official languages; protection of ethnic minorities; protection of linguistic minorities).

2.  Limitations

15.  Scientific autonomy and the ethical dimension impose (internal) restrictions on the freedom of scientific research, thus excluding from constitutional protection all cases of scientific dishonesty and impropriety. Scientific research must be carried out according to recognized and well-founded procedures in order to protect science from inimical acts able to affect scientific integrity—for example, the quality of documentation, review, and diffusion of results (Weber 129–156). The irresponsible breach of fundamental scientific principles and the abuse of freedom of research run counter to the very nature of scientific research (Starck 114).

16.  Freedom of scientific research can also be limited in order to protect other constitutional rights (external restrictions): eg, the right to privacy when personal data is involved in research; protection of the environment (see the Political Constitution of Colombia: 4 July 1991 (as Amended to 4 November 2011) Main Text, Title II On Rights, Guarantees, and Duties, Chapter III On Collective Rights and the Environment, Art. 81 (Colom) which prohibits the manufacture, importation, possession, and use of chemical, biological, or nuclear weapons as well as the introduction of nuclear and toxic wastes within the national territory; moreover, the Colombian Constitution establishes that the state must regulate the movement of genetic resources in and out of the country and their use in accordance with the national interest); and the life and health of human beings, and human dignity (in this sense see the Decisions of the Constitutional Court of Italy (La Corte Costituzionale Della Repubblica Italiana) No. 57 (1976) and No. 364 (1988) (It); see also Chieffi (1993) 122; right to life; right to health; dignity and autonomy of individuals). External restrictions can involve the goals of scientific research as well as its methodology and procedures. Some constitutions explicitly recognize the limits to the freedom of scientific research, often identified with reference to provisions of law, for the protection of the right to honour, to privacy, to a person’s image, and the protection of youth and childhood (Constitution of Spain: 6 December 1978 (as Amended to 23 August 2011) Main Text, Part I Fundamental Rights and Duties, Chapter 2 Rights and Freedoms, Art. 20 para. 4 (Spain)), and in public order and morality (Constitution of Jordan: 11 January 1952 (as Amended to 28 August 2014) Main Text, Chapter 2 Rights and Duties of Jordanians, Art. 15 (Jordan)).

17.  Some constitutions—mainly Eastern Europeancontain an explicit limitation on medical or scientific experimentation without consent. For example:

  • •  Constitution of the Russian Federation: 12 December 1993 (as Amended to 21 July 2014) Main Text, The First Section, Chapter 2 Rights and Freedoms of Man and Citizen, Art. 21, para. 2 (Russ);

  • •  Constitution of Ukraine: 28 June 1996 (as Amended to 21 February 2014) Main Text, Chapter II
Human and Citizens’ Rights, Freedoms and Duties, Art. 28 (Ukr);

  • •  Constitution of Turkey: 7 November 1982 (as Amended to 12 September 2010) Main Text, Part Two Fundamental Rights and Duties, Chapter Two Rights and Duties of the Individual, I Personal Inviolability, Corporal and Spiritual Existence of the Individual, Art. 17 (Turk)).

In a more detailed way, the Fundamental Law of Hungary: 18 April 2011 (as Amended to 1 April 2013) Main Text, Freedom and Responsibility, Art. III, para. 2 (Hung) explicitly states that consent must be informed and voluntary, specifying in paragraph 3 that ‘[p]ractices aimed at eugenics, the use of the human body or its parts for financial gain, as well as human cloning shall be prohibited’. If the text of the constitution is silent, courts are entrusted with the task of creating a balance between contrasting constitutional values by applying the constitutional ‘hierarchy’ (Hessisches Universitätsgesetz (1978) 369 (Ger)).

3.  Organizational and Institutional Aspects

18.  Freedom of scientific research is a complex and multidimensional right, and at least four different dimensions of constitutional protection may be identified (Cerri 2).

19.  First of all, freedom of scientific research implies the right of every researcher to choose the subject, the methodology, and the objectives of his or her research. This aspect should be protected under a ‘liberal-negative’ approach where the state is expected not to interfere in research activity. This is a safeguard against social and political interference without any further reference to the protection or positive promotion of the right itself. This occurs in:

  • •  Constitution of Estonia: 28 June 1992 (as Amended to 17 October 2005) Main Text, Chapter II Fundamental Rights, Freedoms and Duties, Art. 38 (Est);

  • •  Constitution of the Republic of Albania: 22 November 1998 (as Amended to 18 September 2012) Main Text, Part Two Fundamental Human Rights and Freedoms, Chapter IV Economic, Social and Cultural Rights and Freedoms, Art. 58, para. 1 (Alb); and

  • •  Constitution of Finland: 1 March 2000 (as Amended to 2007) Main Text, Chapter 2 Basic Rights and Liberties, Section 16 Educational Rights, para. 3 (Fin).

The right of every researcher to choose the subject, methodology, and objectives of his or her research should also be protected under a ‘republican-positive’ approach, in which the state is engaged in promoting and supporting scientific research, due to the conception of rights as claims to civic membership (Brown and Guston 356–357). The engagement of the state in promoting and supporting scientific research can be generic, with the express aim that the development and promotion of science, research, and scholarship be an obligation of the state. For example:

  • •  Constitution of Greece: 11 June 1975 (as Amended to 27 May 2008) Main Text, Part 2 Individual and Social Rights, Art. 16, para. 1 (Greece);

  • •  Political Constitution of the United Mexican States: 5 February 1917 (as Amended to 29 January 2016) Main Text, Title 1, Chapter I Human Rights and Guarantees, Art. 3, para. V (Mex)), or

  • •  more specific as provided in the Fundamental Law of Hungary: 18 April 2011 (as Amended to 1 April 2013) Main Text, Freedom and Responsibility, Art. X (Hung).

20.  Second, freedom of scientific research implies the freedom to make the results of research activity known to the scientific community as well as to society in general. On one side, it infers the freedom of expression of the researcher to disseminate the results of his or her research, and some constitutions guarantee the freedom to publish works of science, scientific discoveries, and technical inventions (eg, Constitution of Poland: 2 April 1997 (as Amended to 21 October 2009) Main Text, Chapter II The Freedoms, Rights and Obligations of Persons and Citizens, Economic Social and Cultural Freedoms and Rights, Art. 73 (Pol); and Constitution of Turkey: 7 November 1982 (as Amended to 12 September 2010) Main Text, Part Two Fundamental Rights and Duties, Chapter Two Rights and Duties of the Individual, IX. Freedom of Science and the Arts, Art. 27 (Turk), whose paragraph 2 establishes that the right to disseminate shall not be exercised for the purpose of changing the provisions of the constitution on the republican form of the state, the main characteristics of the republic, or the integrity of the official language, flag (state symbols), national anthem, and capital of the state). On the other hand, the freedom of scientific research implies the right of society in general to benefit from the results of scientific research (as in the Constitution of the Republic of Albania: 22 November 1998 (as Amended to 17 December 2015) Main Text, Part Two Fundamental Human Rights and Freedoms, Chapter IV Economic, Social and Cultural Rights and Freedoms, Art. 58, para. 1 (Alb)).

21.  Third, freedom of scientific research also includes the freedom to teach the results of scientific activity (as provided for in the Constitution of Italy: 22 December 1947 (as Amended to 20 April 2012) Main Text, Part I Rights and Duties of Citizens, Title II Ethical and Social Rights and Duties, Art. 33 (It); in the Constitution of the Republic of Korea: 17 July 1948 (as Amended to 29 October 1987) Main Text, Chapter II Rights and Duties of Citizens, Art. 22 (S Kor). This aspect is also guaranteed by the protection of scientific institutions (as in the Constitution of Montenegro: 19 October 2007 Main Text, Part 2 Human Rights and Liberties, 4 Economic, Social and Cultural Rights and Liberties, Art. 75 Education (Montenegro)).

22.  Fourth, constitutional protection should also be extended to the results of scientific research,

  • •  as is the case with moral and material rights (eg, Constitution of Croatia: 22 December 1990 (as Amended to 6 July 2011) Main Text, III Protection of Human Rights and Fundamental Freedoms, 3. Economic, Social and Cultural Rights, Art. 69 (Croat)), and

  • •  with copyright and patent or other intellectual property rights (right to intellectual property) (eg, Constitution of the Republic of Latvia: 7 November 1922 (as Amended to 15 November 2005) Main Text, Chapter VIII Fundamental Human Rights, Art. 113 (Lat); Constitution of Slovenia: 23 December 1991 (as Amended to 24 May 2013) Main Text, II Human Rights and Fundamental Freedoms, Art. 60 Intellectual Property Rights (Slovn)).

D.  Comparative Assessment

23.  Freedom of scientific research is generally protected in contemporary constitutionalism. The move toward the constitutionalization of cultural values, which mainly developed after the end of the Second World War—an example is the Constitution of Italy: 22 December 1947 (as Amended to 20 April 2012) Main Text, Fundamental Principles, Art. 9 (It) whereby ‘[t]he [r]epublic promotes the development of culture and of scientific and technical research. It safeguards natural landscape and the historical and artistic heritage of the [n]ation’)—prompted the affirmation of states’ constitutional duty to promote the development of research in all branches of human knowledge through appropriate incentives. Thus, it has been possible to affirm the enforceability and justiciability of those individual rights related to them whenever they have been or are affected by the unlawful conduct of public and private parties (see in this sense the Decision of the Constitutional Court of Italy No. 20 (1978) (It), reiterating that Article 9 of the Italian Constitution guarantees the protection of the freedom of research, granted to each individual; this freedom is therefore invoked against the ban on the patentability of medicines, a prohibition that, in the opinion of the Court, could discourage the desire to develop scientific research in this area; Chieffi (1993) 42).

24.  Although the prevalent tendency was initially to recognize the freedom of scientific research in the context of a liberal-negative approach, with the state ideally remaining outside the sphere of autonomous freedom, the latest trend is to require the inclusion in constitutions of rules governing aspects of scientific research in order to safeguard other rights and legal interests that may be affected. From a constitutional perspective, this trend translates into an increasing departure from the liberal position and progressive approach, moving towards the idea of limited freedom. In reality, the majority of contemporary constitutions contain provisions on the engagement of the state in promoting and supporting scientific research, progressively affirmed in accordance with the increase of state intervention in the development of science and the establishment of limitations.

25.  However, the exercise of the freedom of scientific research leads to several constitutional challenges. Scientific experimentation is able to transform ideas into action: ‘[e]xperimentation represents the sequence of the scientific phenomenon in which human reasoning gives way to material action with the aim of concretely verifying the seriousness of the hypothesis ... previously elaborated, but only in the abstract, by the researcher’ (Francione 417 et seq). In light of US legal scholarship on the Constitution of the United States: 17 September 1787 (as Amended to 15 December 1791) Amendments to the Constitution, Amendment I (US), whereby the widest possible freedom of expression must be ensured as long as the word does not become a principle of action (Schauer), also, absolute freedom to do research cannot be translated into an equally absolute freedom to experiment with scientific hypotheses. If legislative limitations to freedom of expression should respect the principle of ‘content neutrality’, which means that only limitations neutral with respect to the content of the expression are allowed and, conversely, restrictions discriminating on the basis of the content of the expression are regarded with great suspicion (Stone 46 et seq and Robertson 1247 et seq), thereby, limitations on scientific research activities based on the subject of the research should be placed under strict scrutiny. This means that a content-based principle should not be applied to research funding even though it is obvious that public authorities cannot be prevented from favouring certain research programmes or setting funding priorities.

26.  Thus, legal restrictions on the right to scientific experimentation should be established with very elastic and general formulas that refer to evaluations related to the protection of other constitutional rights or interests related to experimentation. These restrictions should be provided by law and respect a strict scrutiny. Lawmakers should intervene on issues related to scientific research only by referring to established and accepted data from the scientific community (Starck 113). Legislators can codify the results of scientific research only when its results are consolidated within the scientific community (see the Constitutional Court of Italy Decision No. 282 (2002) (It), which ruled that the legislator has the duty to consolidate in a law the results obtained by the scientific community with reference to the need and the ‘scientific rigor’ of a specific medical treatment) even if recognition of the ‘scientific rigor’ of an activity or a treatment depends on the identification of specific criteria by the scientific community itself (Jugendgefährdende Schriften III (1994) 13 (Ger)).

27.  Scientific and technological innovations resulting from the exercise of the freedom of scientific research also give rise to new rights and duties. In particular, genetics takes this tendency to radical consequences, as the new technologies in genetics are able to move a growing mass of information capable of enriching current knowledge of the human being. Faced with this perspective, three fundamental approaches have emerged.

28.  First, in the ‘enthusiastic approach’, scientific progress and ‘new genetics’ are welcomed for their ability to address old and new needs of human beings (Menesini 10). This approach supports the need for the creation and preservation of a truly free and competitive market in which the totalitarian tendencies of technology and majorities would automatically be counterbalanced by the criterion of efficiency and the legal technique of the patent, in order to ensure control but at the same time stimulate research. A lesser enthusiastic approach is based on a secular view of these issues: the separation between morality and law rejects any normative solution imposing ethical positions and leaves it to individual freedom of conscience and the freedom of scientific research to work towards improving the quality of life (Scarpelli (1998) 118; freedom of conscience and religion or belief).

29.  Second, in the ‘pragmatic approach’, contemporary science has difficulty in formulating long term forecasts. Due to the risks associated with biotechnological applications, according to the ‘pragmatic approach’ ethical standards in scientific research ought to be formulated and the enhancement of the precautionary principle stimulated (Ferrari 1565). This approach rejects the imposition of preventive limits to the freedom of scientific research: constitutional values should be interpreted in order, for example, to enhance the principle of non-discrimination on the basis of genetic heritage, the right to non-commercialization and patenting of the body, and the right to evolution of the species without human interference (Chieffi (2000) 88 et seq).

30.  Lastly, in the ‘religious approach’, the status quo has to be preserved. Inspired by religious views, ethical requirements, or an environmental spirit, this approach highlights the risks of the unscrupulous advancement of technological frontiers in terms of the alteration of the human species, the advent of a ‘eugenics civilization’ under industrial or commercial control, or rapid and irreparable modification to the overall ecosystem (Casonato 17 et seq). According to the religious approach, genetic and manipulative intervention on the embryo or on the genome should be considered constitutionally inadmissible due to the violation of the fundamental right to personal identity (Baldassarre (2001) 15 et seq; embryos and embryonic stem cells).

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