Academic freedom in national constitutions: an initial comparative study

Constitutions are a particularly significant expression of State practice and of opinio juris, the two constitutive elements of customary international law. The question of whether academic freedom has attained the status of customary international law has not been squarely addressed in international legal scholarship, nor by national or international adjudicative bodies. This article intends to contribute to the debate by mapping “academic freedom” and cognate concepts in national constitutions. The introduction presents the reader first the concept of customary international law and, second, the elusive notion of academic freedom. Then, the article introduces the Academic Freedom in Constitutions (AFC) database and makes a few historical observations regarding the diffusion of academic freedom in world constitutions. However, because the AFC database allows only for quantitative and trend analysis, the article dwells next into the text of relevant “academic freedom” constitutional provisions. In particular, it tracks and analyzes mentions of “academic freedom”, “scientific freedom”, “autonomy of higher education institutions” and equivalent expressions in world constitutions. The article draws also some observations regarding limitations in constitutions to “academic freedom” provisions. Of course, an analysis of academic freedom constitutional provisions cannot per se be dispositive of whether academic freedom has attained customary international law status. It must be complemented by a deeper and more robust research. Yet, it adds a piece to the puzzle.