Die Lehrfreiheit - Wiederentdeckung oder Rückbau? Zugleich Besprechung von Ann-Katrin Kaufhold 'Die Lehrfreiheit - ein verlorenes Grundrecht?

摘要

Article 5 para 3 of the German Constitution guarantees not only a fundamental right of free science. It also explicitly contains the freedom of research and teaching. Even though research and teaching are mentioned separately, according to traditional interpretation of the Constitution both guarantees are absorbed by an extensive freedom of science. This review essay discusses the new constitutional concept, proposed by Ann-Katrin Kaufhold that tries to establish an independent fundamental right of free teaching. Pursuant to that approach the freedom of teaching is primarily an objective guarantee of the institution of undisturbed communication of scientific knowledge that satisfies an interest of students and society in higher education. The individual right of the (academic) teacher is therefore severely reduced in importance. This seems to correspond with recent constitutional jurisdiction., Thus, the traditional concept of an individual freedom right of academia and, in particular, of teaching is substantially threatened. The new approach wants to remodel subjective freedom rights into objective institutional guarantees. But this seems to be inconsistent with the very idea of individual freedom and self-determination. In addition, the review essay rejects the idea that the normative meaning of academic freedom rights could have shifted by a mere change of social facts. In conclusion, this essay pleads for the maintenance of the traditional concept of freedom of research and teaching, as it has been decisively developed by Wilhelm von Humboldt.