SEEU Review vol. 6 Nr. 2 (pdf) - South East European University

SEEU Review Volume 6, No. 2, 2010IntroductionThis article is the first of two which discuss the protection of academicfreedom in two European countries: the United Kingdom and the Republicof Macedonia. In the first article, I will deal with the international protectionof this essential feature of a modern democracy, and continue with a detailedpicture of the situation in the United Kingdom. In the second article, I willcompare the situation in the Republic of Macedonia. In the higher educationsector, freedom of speech and expression are traditionally of fundamentalimportance since it is higher education institutions (HEIs) which provide aplatform for different views to be expressed, for argument and debate, andfor research to be carried out for its own sake. However, this is affected by arange of laws regulating how such freedom is to be exercised in a democraticstate, particularly when information is recorded in some way, from atransient e-mail to a printed book, a musical recording, or a film. Theinteraction between ‘free speech’ and copyright is one example.It is important first to isolate the concept of academic freedom frominstitutional autonomy. Both are well known in the Western world, and inother countries which have developed their higher education from Anglo-American or European models. Institutional autonomy (or ‘institutionalacademic freedom’) 1 developed from the medieval concept of the studiumgenerale or universitas, a collection of guilds or faculties with special civilstatus and ecclesiastical protection. Individual academic freedom originatedin the seventeenth century, notably in the German doctrines of Lehrfreiheit1See analysis of the concepts of academic freedom and institutional autonomy from a USperspective in W.A. Kaplin and B.A. Lee, The Law of Higher Education (4th ed 2006).The alternative description of ‘institutional autonomy’ as ‘institutional academic freedom’derives from US case law to be discussed below. From the European perspective see T.Birtwistle, ‘Academic Freedom and Complacency: The Possible Effects if “Good Men DoNothing”’ (2004) 16(4) Education and the Law 203–216. See also D. Palfreyman, ‘IsAcademic Freedom under Threat in US and UK Higher Education?’ (2007) 19(1)Education and the Law 19-44; also as Item 23 at the Papers Page of the OxCHEPSwebsite, D. Watson ‘Does Higher Education need a Hippocratic Oath?’, in (2007) HigherEducation Quarterly 61(3) 362-374; T. Karran ‘Academic Freedom in Europe: APreliminary Comparative Analysis’, (2007) Higher Education Policy 20 289-312;. B.Doumani (2006) Academic Freedom after September 11; E. Gerstmann (2006), AcademicFreedom at the Dawn of a New Century: How Terrorism, Governments, and Culture WarsImpact Free Speech; K. McGuinness (2002) The Concept of Academic Freedom, S.Bergan (2008) Academic Freedom and Institutional Autonomy: impact on internationalstudents in Legal aspects of higher education in an international context: disputes,resolutions, methods and safeguards T. Birtwistle (ed) European Association forInternational Education, Amsterdam, and earlier, M. Horn (1999) Academic Freedom inCanada: A History.11