On The Political Roots of Academic Freedom

But perhaps there was no event, which tended farther to the improvement of the age, than one, which has not been much remarked, the accidental finding of a copy of Justinian’s Pandects, about the year 1130, in the town of Amalfi in Italy.—David Hume History of England, 23.34

The modern university is in a grave crisis in today’s imperial core. During a crisis it is instructive to return to one’s foundation and, thereby, reorient oneself. That foundation is Authentica habita, dating from 1155.[1] It was promulgated by Emperor Frederick Barbarossa (1122 – 1190), also known as Frederick I. This document had legal status throughout the Holy Roman Empire (it is known to us because it was included in new editions of the Justinian Code then recently rediscovered in the West.)

Authentica habita document was elicited by learned lawyers at Bologna. When they did so there was as-of-yet no corporate body organized as a university in Bologna, although we have good reason to believe that the town was already known for “the doctors of law and other masters staying there.” (Koeppler 1939: 593) Universities as corporate bodies with guild-like characteristics developed over a century later from them.[2]

Crucially, the practices made possible by Authentica habita shaped the articles of incorporation of these subsequent institutions. I will, thus, use it anachronistically to help conceptualize the framework for the privileges associated with the university ab initio.

Authentica habita is, in fact, a privilege granted not to a particular institution or even particular individuals, but to scholars as such. In particular, to scholars who have to travel from their homeland to a place of study: “we grant this favor of our piety to all scholars who travel for the sake of their studies, and especially to professors of divine and sacred laws, that both they and their messengers may come to the places where the studies of letters are pursued and dwell there in safety.” [“Omnibus qui causa studiorum peregrinantur scolaribus, et maxime divinarum atque sacrarum legum professoribus hoc nostre pietatis beneficium indulgemus, ut ad loca, in quibus literarum exercentur studia, tam ipsi quam eorum nuntii veniant et habitent in eis securi.”]

Anyone familiar with the contemporary practice of granting and revoking visas for students will immediately recognize the significance of Authentica habita. Not to put too fine a point on it: academic freedom is originally founded on this right for scholars to travel to and from their place of study. While legal scholars are singled out in the document, it secured a kind of cosmopolitan right of hospitality to all would-be-academics (including students).

What I call this ‘cosmopolitan right of hospitality’ is rooted in Authentica habita’s recognition that all scholars are, in a literal and metaphorical sense, exiles from their homes from a love of knowledge: (‘tamore scientie facti exules.’) The scholarly life entails a kind of renunciation of ordinary citizenship.

In fact, the cosmopolitan nature of participating in scholarship is central to two other otherwise oddly connected privileges granted in Authentica habita. First, and crucially, it provides a general immunity and security throughout the empire: “Therefore, by this general law, which will be in force forever, we have decreed that no one henceforth be found so bold as to presume to inflict any injury on scholars, nor for the sake of another’s debt in the same province.” [“Hac igitur generali lege et in eternum valitura decrevimus, ut nullus de cetero tam audax inveniatur, qui aliquam scolaribus iniuriam inferre presumat, nec ob alterius eiusdem provincie debitum.”] The latter quoted clause exempts scholars from collective liability of their prior membership in non-academic communities (the so-called ‘practice of reprisals’). That is, scholars should be seen as scholars first and foremost as members of a scholarly community (or even a broader republic of letters) and only secondarily as members of a distinct (and potentially hostile) polity.

In context, the practice of reprisal involved the idea that financial debts of travelers or merchants would have to be paid by members of the same community. So, when abroad one was never merely an individual, one was always also potentially liable for the behavior of others in one’s community (and they in turn for you). Authentica habita exempts scholars, as a group, from this risk. The primary social identity of an academic ‘abroad’ is, on this model, thus, not (say) being Chinese, but being a scholar. One’s formal association with a learned community is the equivalent of a passport.

This feature is reinforced by the second major privilege announced in Authentica habita. This is the extraordinary privilege to pick one’s judge. I quote the whole clause:

However, if anyone wishes to bring a lawsuit against them over any matter, the scholars, having given the option of this matter to them, shall appear before their lord or master or the bishop of the polity itself, to whom we have given jurisdiction in this matter. But whoever attempts to drag them to another judge, let the cause, even if it is the most just, fail for such an attempt. [“Verum tamen, si eis litem super aliquo negotio quispiam movere voluerit, huius rei optione data scolaribus, eos coram domino aut magistro suo vel ipsius civitatis episcopo, quibus in hoc iurisdictionem dedimus, conveniat. Qui vero ad alium iudicem eos trahere temptaverit, causa, etiam si iustissima fuerit, pro tali conamine cadat.”]

It makes more sense to read this passage not as advocating the now disreputable practice known as ‘judge shopping,’ but rather as making the more important symbolic and political point that scholars are, in principle, members of a self-governing community with its own rules and jurisdiction (Shank 2023: 16). Interestingly enough, it’s not just law professors (‘domino’), but all professors/teachers (‘magistro’) that have jurisdiction to settle disputes for their students. As Koeppler (1939: 605) notes this custom goes back to ancient times.

Now, there is a fascinating historical back-story of how Bologna’s famous legal community elicited these privileges from the emperor. But for present purposes, the more important point is to understand the general, public justification offered for them in Authentica habita beyond the would-be-scholars’ willingness to disown their original home community for the life of intellect.

This justification is presented in at least three particular claims early in the document. First, scholars do good deeds [bona facientes]; second, by scholars’ witnessing truth the whole world is illuminated [literally: ‘’By whose knowledge the world is enlightened’ [‘quorum scientia mundus illuminatur’]; third, thereby, all citizens are called to obey God and the worldly Sovereign power [ad obediendum deo et nobis, ministris eius, vita subjectorum informatur.]

From the start academic freedom is thus, rooted, in a converging number of principles: there is a consequentialist expectation that Works will follow from scholarship; there is an intrinsic appreciation for the general light that knowledge brings; and there is an expectation that, in so doing, the scholarly community upholds spiritual and law-governed order (Shank 2023: 17).[3] Or to rephrase the third more polemically: legitimate divine and secular authority have nothing to fear from free scholarly pursuits and vice versa.

• An earlier version of this post first appeared at Digressionsn&impressions (here).

[1] The Latin text can be found as an appendix (pp. 606-607) to Heinz Koeppler (1939) “Frederick Barbarossa and the schools of Bologna,” English historical review: 577-607. Throughout I have used google translate modestly edited for my English translation.

[2] Shank, Michael H. “The medieval university.” Handbook on Higher Education Management and Governance. Edward Elgar Publishing, 2023. 15-32.

[3] The students and their teachers obtain the protection of the law, while the ruler – who was on his way to his coronation — obtains authority through the law.