Academic Freedom and the Law: A Comparative Study

June 30, 2011

The Browne Review suggested that universities exist to "generate and diffuse ideas, safeguard knowledge, catalyse innovation, inspire creativity, enliven culture, stimulate regional economies and strengthen civil society". Apart from promoting this jumbled set of slogans, the Browne Review has rightly been criticised for its highly instrumental view of universities and higher education. Eric Barendt's book on academic freedom, published shortly afterwards, offers a radically more learned, balanced and thoughtful account. Unlike Browne, it will deserve attention for many years to come from anyone interested in higher education policy.

Despite its title, this is not a book wholly, or even mainly, about the law. Barendt begins by engaging with the definition of academic freedom, pointing out that people too often think of it as simply a special version of free speech. For Barendt, this is woolly logic. Academic freedom in fact consists, he argues, of three parts. First are the claims "made by individual professors and lecturers (and perhaps students) to scholarly academic freedom", including expression. Second, there are claims "of universities and other academic institutions to institutional autonomy or academic freedom". Third, there is the claim "of individual academics to participate in university government".

Confusing the three parts, Barendt suggests, is dangerous. For one thing, the different types of claim sometimes conflict. Institutional autonomy may suggest universities should be free to employ whoever they choose, but individual academic freedom implies the need to protect individuals from dismissal for expressing particular academic views. For another, since different justifications are needed for each type of claim, muddling them up can produce jumbled arguments, undermining rather than defending academic freedom when it is under threat.

Barendt examines defences of individual scholarly freedom based on ethical individualism, a non-instrumental argument, and the promotion of truth and human knowledge, an instrumental argument. He concludes that the defence of institutional autonomy needs to piggyback on rather than merge with the arguments concerning individual freedom. Hence, "university autonomy is valuable and to be protected only insofar as it promotes the exercise of academic freedom and its values" by individuals. Autonomous universities are valuable as defenders of individual freedom. Explanations for academic self-government include the value of professional self-regulation, the fact that specialist judgements are involved in academic decision-making, and the ability of academics to promote scholarly freedom more effectively than lay governors or managers. However, Barendt also stresses that academic freedom always carries with it strong professional obligations.

The importance of getting the definitions and justifications clear is highlighted by Barendt's later, rather masterful exploration of law and political practice in the UK, the US and Germany. In the UK, although the Education Reform Act 1988 contained a commitment to the individual freedom of academics, Barendt highlights the "gradual decline in institutional autonomy" as ever more powers have been granted to the Higher Education Funding Council for England. In Germany, where there is a constitutionally protected right to intellectual freedom (a broader idea than individual academic freedom), universities have still been ever more centrally managed as institutions. Barendt also offers many valuable analyses of practical disputes concerning management and governance in universities around the world.

Individual readers will disagree with some of Barendt's specific conclusions. For example, his acceptance that financial decisions, "even those concerning the allocation of resources" in universities, are "almost certainly best left to bodies in which laypeople form a majority" may seem inadequate in an era of cutbacks, when most big financial decisions have academic consequences. Generally, though, his arguments are fair and robustly defended. Unlike Browne, this is a first-rate publication.

Academic Freedom and the Law: A Comparative Study

By Eric Barendt. Hart Publishing, 360pp, £40.00. ISBN 9781841136943. Published 19 November 2010

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