学术自由的组织保障——德国的实践与理论

Organizational Guarantee of Academic Freedom: Practices and Theories in Germany

作为基本权利规范的学术自由,同时需要相关组织规范的协同与配合。大学内部的组织建构要以学术自由能否实现为标准。近代以来"教授治校"的组织模式,充分保障了大学教授的学术自由,但在现代大学功能嬗变与人员多元的背景下有调整的必要。学术自由不仅是个人对抗国家干预的主观防御权,同时也是宪法的"基本价值决定",要求国家通过"适当的组织措施"保证其落实,同时大学的组织建构要兼顾非学术人员的其他利益诉求。"学术自由的组织保障"是评价大学法制的基本指标,也是大学章程制定的宪法规则。

Academic freedom, being a norm of fundamental rights, also needs coordina tion and cooperation of relevant organizational norms. The organizational structure of a university should take the realization of academic freedom as its criterion. Since modern times, the organiza tional model of ＂universities governed by professors＂ has fully guaranteed academic freedom of u niversity professors. However, with the background of changes of functions and diversified staff members in contemporary institutions of higher learning, there is a need for adjustment. Academic freedom is not only an individual right of subjective defense against state intervention, but also a ＂fundamental value＂ determined by constitution, which requires state to guarantee its realization by ＂proper organizational measures＂ At the same time, the organizational structure of a universi ty should take into account interests of nonacademic staff as well. The organizational guarantee of academic freedom is the basic index to evaluate the legal system of a university. and also a consti tutional rule to draw up regulations of a university.