Before Academic and Religious Freedom

Genealogical and historical accounts of rights have come into vogue in recent decades. While the historical scholarship such approaches have entailed is a welcome advance, the difficulty of bridging the gap between individual and corporate rights has proven stubbornly difficult, and has led to attempts to situate the emergence of the modern concept of the “individual” in earlier periods in such a way that anachronism becomes impossible to avoid.

I make no attempt to leap that treacherous crevasse here. Rather I will look at two different strands of individual rights, the right to religious liberty and the right to academic freedom, with their corporate predecessors, libertas ecclesiae and libertas scholastica. Neither libertas was politically prescriptive, since neither inhered in a purely political corporation; both managed to survive the radical Westphalian reordering of the European political world; neither became fully extinct even in the 20^th century. As a result, the persistence of libertas ecclesiae alongside individual religious freedom, and of the free self-governance of the university alongside individual academic freedom, remains an unresolved fault line.

Libertas Ecclesiae

The question of the libertas ecclesiae is not one that most political theorists spend much effort in exploring. While the libertas ecclesiae was invoked during the crisis of the Papal States in the late 19^th century, the phrase is not heard much today. Yet the concept goes back quite far. Standard accounts locate the origin of the concept in the 11^th century, during the struggle between Church and Empire known as the “Investiture Controversy.”

That controversy was both a fairly technical conflict regarding procedures for ecclesiastical nomination and appointment, and an all-consuming existential and philosophical battle on the nature of sovereignty, the relationship of reason and revelation, and the meaning of political power in the church and state. It absorbed the attention of much of Europe for a half a century. In 1077, Pope Gregory VII issued a Bull whose incipit left no doubt as to his view—“Libertas ecclesiae.” St. Anselm of Canterbury, a supporter of the reform, put it most succinctly (ep. 235): “There is nothing God loves more in this world than the liberty of the Church.”[1]

Less remarked upon is the fact that this idea is far older—dating to the first centuries of Christianity. Apponius, in his commentary on the Canticle of Canticles from perhaps the early 5^th century, beautifully notes how “in His [the Bridegroom’s] doctrine the Church, or the throng of faithful, finds liberty; in His death, life; in the silence of his tomb, rest from hard labour.”[2] One might object that Apponius is not using libertas in the political sense—which is true, up to a point. But what he is really doing is recasting the old Roman notion of the relationship between political libertas and the artes liberales.

The Romans held that the political libertas of a Roman citizen was closely bound up with his liberal education: liberal arts were the arts proper to someone who enjoyed libertas, and were what he dedicated the otium, or leisure, his libertas afforded him to. For Apponius, it is the doctrina, or teaching, of Christ that is the true liberal art; and it is the silence of Christ’s tomb that offers genuine otium.

It remains true, however, that this is still the kind of libertas which can neither be threatened nor abolished by secular powers. Prosper of Aquitaine, however—Apponius’s contemporary—uses libertas ecclesiae in precisely this sense:

By the blood of the martyrs and the groans of those in chains has been made that the church has this liberty . . . by which all peoples of every nation might come together unto the unity of faith and that the kingdoms which persecuted Christian might be subjected to the yoke of Christ.[3]

Historians and political philosophers might suggest that this vision of ecclesiastical sovereignty is medieval, inextricably linked with the Gregorian papacy—and yet here we find it in full flower 600 years earlier.

There is a reason for this: Prosper and his contemporaries seem to have believed that once pagan society and government became Christian the libertas ecclesiae would be assured. In reality, however, a Christian empire brought its own challenges for the Church—challenges which would be confronted differently in East and West. In the West, those challenges came to a head in the 11^th century, and forced scholars and theologians on both sides to inquire deeply into the nature of sovereignty itself. Can the libertas ecclesiae coexist with the sovereignty of the secular state, or—even worse—with the plural sovereignties of several states?

Ultimately, they found the answer to be affirmative but never definite in form. In practical terms, the contours of the relationship were always changing throughout the medieval period. Some medieval historians have scoffed that the particular liberties St. Thomas Becket, the martyr to the libertas ecclesiae, forfeited his life to protect were themselves abolished or abrogated within decades of his death. But they miss the point. The libertas ecclesiae must always be defended—as St. Anselm says, there is nothing God loves more—but the particular shape of the practical arrangement between Church and State is always, for want of a better term, a negotiation.

Universitas and Civitas

Let us turn now from Church to university. To give a simple overview, the universities of Europe developed from the incorporation of independent schools at the beginning of the 13^th century—with Bologna and Paris leading the way, followed soon after by Oxford, Naples, Salamanca, Cambridge, and many others. At the beginning, they looked mostly like scholarly guilds—corporations of masters agreeing to regulate competition and maintain standards. But they soon became something rather different.

It is important to note that, in the beginning, they were neither secular nor ecclesiastical institutions, simply speaking. Some were founded by the papacy: Toulouse, for example, in 1229. Some were founded by secular rulers, such as Naples by Frederick II in 1224. But these directly founded institutions are the exception. Most—Paris, Bologna, Oxford, Salamanca, Montpellier—were preexisting associations which gained, in various sequences, both papal and royal confirmation and approbation. In some cases—Cambridge and Padua, for example—they were de novo creations by scholars themselves.

Universities were political societies, governed by constitutions. These constitutions were laid out either by statute or by foundational documents. They laid out the structures by which the affairs of the university were managed, and established liberties and privileges for those associated with it. These were different in different places. Often they included exemption from taxation, sometimes even exemption from secular courts. Importantly, they gave masters the licentia ubique docendi, or the right to teach anywhere without further examination.

This made the Universities non-national institutions. There is no a priori reason why a faculty of law in Orléans should accept that a doctor trained in Bologna was qualified to lecture in canon law. The determination that their qualifications must be transferable is a political decision, but not a national one.

Indeed, one reason for the political status and liberty of the universities was precisely that they operated outside of national boundaries. As early as the middle of the 12^th century, the Holy Roman Emperor tried to ensure the freedoms of traveling scholars with the Authentica habita—a document confirmed by Pope Alexander III a few decades later. Most of the universities were themselves made up of nationes or groups of students divided by place of origin which mediated between the student body and the university at large. These students might have been physically present in Bologna or Paris, but they could not be treated as if they were residents of Bologna or Paris in any normal sense.

Let us now turn to two specific cases. Not many people today bother to read the papal bulls that established or confirmed universities, even people who think quite seriously about the university and its meaning and purpose. But these bulls tell us quite a bit about universities’ unique political status.

First, consider the bull Parens scientiarum of Pope Gregory IX of 1231, which established statutes for the University of Paris. It contains a bizarre mix of strictures, perfect for a blended institution. On the one hand, it contains lofty sovereign immunities and privileges (including the rights of physical coercion and punishment); on the other hand, dictates regarding the curriculum: Priscian must always be read, and lectures may take place during the summer. There are also academic strictures: certain books on natural philosophy (i.e., Aristotle) are not be studied unless expurgated, and masters are to restrict themselves in disputation only to questions which can be answered with the writings of the Fathers.

Another example from two centuries later is the bull of Pope Nicholas V in 1451 establishing the University of Glasgow. He begins by listing the goals of a university: first research, then teaching, and finally social mobility:

Amongst other blessings which mortal man is able in this transient life by the gift of God to obtain, it is to be reckoned not among the least, that by assiduous study he may win the pearl of knowledge, which shows him the way to live well and happily, and by the preciousness thereof makes the man of learning far to surpass the unlearned, and opens the door for him clearly to understand the mysteries of the Universe, helps the ignorant, and raises to distinction those that were born in the lowest place.

The pope then acknowledges the role of the secular power in the establishment, praising James, the King of Scots, for his desire to found a university:

We, being moved with fatherly affection, and inclined by the supplications of the said king in that behalf, to the praise of God’s name, and propagation of the orthodox faith, erect, by apostolical authority a university in the said city in all times to come for ever, as well in theology and canon and civil law as in arts, and every other lawful faculty. And that the doctors, masters, readers, and students there may brook and enjoy all and sundry privileges, liberties, honours, exceptions, and immunities granted by the apostolic see, or otherwise in any manner of way to the masters, doctors and students in the university of our city of Bologna: And that our reverend brother, William, bishop of Glasgow, and his successors for the time being, bishops of Glasgow, may be rectors, named chancellors, of the aforesaid university . . .

Much is to be learned from Nicholas V’s bull. The peculiar nature of the university makes analogy necessary: to be a university means to be like the one in Bologna. The constitution is laid out with the bishop of Glasgow as the chancellor, who is given authority to award degrees; the licentia ubique docendi is granted.

Of course, on the surface, this makes the university look like an ecclesiastical institution—founded by a papal bull, and headed ex officio by the diocesan bishop. But it is important to note that the bishop is chancellor only by statute, and different statutes prevailed elsewhere, notably in Oxford and Bologna.

This fact is dramatically illustrated by the tumultuous events in the University of Paris in the 13^th century. In 1210, a provincial synod decreed that the books of Aristotle on natural philosophy, the libri naturales, were not permitted to be read and taught in the arts faculty of the University of Paris. Later on in 1270 and 1277, the bishop of Paris, Etienne Tempier, condemned a large number of propositions drawn from the works of Aristotle, and from contemporary Aristotelians, including St. Thomas Aquinas. In all three cases, the penalty was excommunication.

Yet, the result was not what one might expect: in the 1220s, the papally-sponsored university at Toulouse advertised that “Those who wish to scrutinize the bosom of nature to the inmost can hear the books of Aristotle which were forbidden at Paris.” After the 1270s, a number of Dominican scholars migrated to Oxford, where they could continue to hold some of the condemned propositions. William of Ockham quotes one of these as saying that “Excommunication has not crossed the Channel.”

He was correct to say so. Constitutionally, according to the statutes of the university, Bishop Tempier had every right to impose strictures as he saw fit; but constitutionally again, those strictures could only apply to the University of Paris. His authority to do so was not derived directly from his episcopal office as a  zealous steward of his flock, but from his university office, and different universities were free to act differently. This diversity was only possible because the university is not strictly speaking an ecclesiastical institution.

Cuius Facultas Eius Libertas

Indeed, the best proof that the university was not an ecclesiastical polity is found in the fact that most of them made it through the Reformation—and some of them with their constitutions intact. After all, the statutes provided a structure in which the libertas inquirendi could operate, and the boundaries it must not go beyond. Changing the nature of the doctrine changed the substance of that liberty but not the form of it. A Reformed university, for example, like Glasgow in the 1570s, under the chancellor from Geneva, Andrew Melville, operated much as it always had, minus the religious houses, and with strict Reformed doctrines in the teaching of theology.

The Prussians took this model to the most delightfully absurd heights, when they founded two new Universities at the beginning of the 19^th century—Bonn and Breslau—which had, from the beginning, two theology faculties, a Catholic faculty and a Protestant faculty. This model, which would become standard in Central Europe to this day, takes the Augsburg model of “cuius regio eius religio” and applies it to the university. What you could teach and research—the boundaries of the libertas inquirendi—was determined not even by your university, but by your faculty. “Cuius facultas, eius libertas,” one might say.

Further, even after the Reformation—which has been aptly described in many ways an attack on the complexity of the multiple sovereignties of medieval Church and state—universities retained a unique status. It is to Scotland that we owe the notion that universities should be represented in Parliament—and not as representatives of the people associated with universities, but as representatives of the universities themselves.

The Parliament of Scotland, for example, was more like an Estates General than the English Parliament, and was thus called the Estates of Parliament. Before the Reformation, one could find in a single chamber the bishops and mitred abbots, the nobles, the burgh commissioners, and the representatives of universities to weigh the affairs of state. When James VI of Scotland became King James I of England, the English Parliament adopted the custom, creating new constituencies for Oxford and Cambridge in 1603. To this day there remain university members in the Irish Senate and the Senate of Rwanda.

What we see, then, is a persistence of the old libertas scholastica insofar as the freedom and rights of the institutions are not merely amalgamation of the rights and freedoms of the individual citizens who make up the institution but something above and beyond—a society or polity within another polity.

Academic Freedom

Libertas scholastica is for the most part today a dead letter. What we have instead is “academic freedom.” Early 20^th century scholars tried to connect the two in a grand genealogy from the libertas scholastica of the medieval universities, to the libertas philosophandi of the Republic of Letters and the early modern university, to the Lehrfreiheit und Lernfreiheit of the 19^th century German university, to the “academic freedom” of today. More recent scholarship has denied that libertas scholastica has anything to do with the later concepts.

Nonetheless, there are certain persistent features. “Academic freedom” is a concept invoked worldwide: from the North America to Europe to Africa to Southeast Asia, and the concept is treated as a univocal term. This implies that academic freedom derives not from individual, national constitutional arrangements but somehow inheres in the nature of an academic institution. This made sense when universities received imperial and papal sanction, which gave them a political legitimacy distinct from the legitimacy of the polity in which they resided. It makes less sense today.

More problematically, “academic freedom” is now conceived in individualistic terms. Consider a hypothetical situation. Professor Smith of Greenford University makes some dire public pronouncement, possibly on Twitter. In short order, outrage is raised, and the university responds. The spokesman, or maybe even the president of Greenford, says, “Professor Smith is entitled to academic freedom, but the community of Greenford is a welcoming community, and his views do not represent that of the university.”

This introduces an epistemological problem: who is speaking when the university—by which we mean the president or the bureaucracy—speaks? More coherent are the occasions on which the faculty body introduce some condemnation, since at least the faculty have some claim to being the university. But it still raises the question: What is the opinion of a university? Is it the opinion of the president, of the board, of the PR department, of a majority of the faculty?

In American jurisprudence at least, I have in mind Urofsky v. Gilmore (2000) and Stronach v. State University of Virginia (2008)—cases in which “academic freedom” has been understood as a corporate freedom of the university, and not an individual freedom of individuals who work there. If so, how can a faculty simultaneously condemn an academic’s views and support his “academic freedom”? This is the tension at the heart of the question of libertas scholastica and academic freedom.

If the university does not have the ability to manage and discipline itself as a free political body, if it disclaims libertas, from where would the individual academic freedom of a faculty member derive? There are no “universities” in the state of nature. No matter how expansive one’s idea of natural rights, and no matter its origins, special privileges for people involved in organized research and education cannot be defended on natural rights grounds.

Religious Freedom

Let us return for a moment to the libertas ecclesiae. What we have today in most Western countries is a paradoxical situation, in which the Church is functionally free but essentially unfree. Its freedom is derived from the individual freedom of the individuals who submit to it. In America, the Catholic Church is functionally free, particularly in the appointment of bishops, because Catholics are afforded First Amendment rights. The Catholic Church itself has found in the 20^th century that individuals possess libertas religiosa.

In uncharacteristically clear terms, the declaration Dignitatis Humanae states (§2): “This Vatican synod declares the the human person has a right to religious liberty” (Haec Vaticana synodus declarat personam humanam ius habere ad libertatem religiosam).[4] At the same time, it affirms that (§13): “Libertas ecclesiae is the fundamental principal in the relations between the Church and the public powers and whole civil order” (Libertas ecclesiae est principium fundamentale in relationibus inter ecclesiam et potestates publicas totumque ordinem civilem). Hence, on the surface, we have a simultaneous statement of two different kinds of liberty: the liberty of the individual in religious matters, and the liberty of the Church itself.

The Council Fathers go on to leave the two (in §13) as two separate liberties with two separate genealogies: the libertas derived from the doctrina of Christ, familiar from Apponius, and the libertas of its members. The council goes on to say that (§13) “concord therefore flourishes between the liberty of the Church and the that religious liberty” (Concordia igitur viget inter libertatem Ecclesiae et libertatem illam religiosam).

From the standpoint of most secular Western states, however, it is clear that liberty of the Church is not recognized as such, but only as a cumulative liberty, and one equipollent with the liberty of any other religious organization. As a factual claim in 1965, there is nothing particularly problematic about saying that concordia flourishes between these two liberties. Cracks have appeared since, however, and Dignitatis Humanae does not tell us what happens when the concordia breaks down.

There are lessons here to be drawn for academic freedom as well. There is a parallel situation between libertas scholastica and academic freedom, as there is between libertas ecclesiae and religious freedom. The former in both cases are the freedoms of the institutions, and both are derived from doctrina. The latter in both cases reside in the individual. I offer no suggestion beyond the parallel in regard to the problem of religious liberty.

But for academic freedom, I would suggest by way of conclusion that universities should more zealously guard their corporate liberties—their freedoms to manage their own affairs—since liberties left unused fall into abeyance. This liberty may well come into conflict with notions of “academic freedom.” Academic freedom is of course something to be cherished, and particularly by faculty who diverge from the orthodoxies of particular institutions. But the real result of “academic freedom” has become a kind of institutional indifferentism, in which almost every university in the Western world is filled with academics who hold almost all the same views on political, social, and cultural questions.

Every individual academic may well be free to teach and research as he sees fit, but the fact that the university can distance itself from any individual means that there is a prevailing culture of conformity. Better would be the world in which there is a genuine diversity of institutions, where “excommunication does not cross the channel,” where the opinion of the faculty of Glasgow was actually vigorously different from the faculty of Louvain, where the differences between a Catholic university and a nonsectarian university were actually more than aesthetic. For this to happen, universities would need to embrace the corporate identity that corporate freedom makes possible.