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学术自由是一个历史概念。近代大学成长过程中以维护教学秩序、保障师生权益为出发点,从教皇、国王、市政当局等获得了较多特权,形成了一个以自治为目的的学术自由特权群,可谓非纯粹的学术自治权。在资产阶级宪政法治运动下,作为大学基本权利的学术自由权逐步得以宪法化。以德国、美国为代表,在世界范围内形成公私分明的权力运行的制度形态。德国强调学术自由权的宪法基本权属性,在特别权力关系和教授治校制度影响下呈现出“国家—高校”的权力格局;美国强调司法判例的规范作用,在董事会契约管理和教授联合会制度支撑下建构了“社会—高校”的权力格局。而学术自由移入中国后,民国时期的办学自由权与改革开放后的办学自主权是权利主要表现形态。通过历史形态的考辨,得出学术自由权作为大学治理的一种手段,始终在自由与受控的对立统一中发展,对其的权利化作业与学术权威的确立是我国不可回避的课题。
Academic freedom is a historical concept. In order to maintain the teaching order and protect the rights and interests of teachers and students, the modern university gained more privileges from the Pope, the king and the municipal authorities, forming a self-governing academic freedom privilege group which can be described as non-pure academic autonomy right. Under bourgeois constitutionalism and the rule of law movement, the right to academic freedom as a basic university right has gradually been institutionalized. With Germany and the United States as its representatives, a system of public-private institutions of power operating in the world is formed. Under the influence of the special power relations and the teaching of the university under the influence of professors, the constitutional power attributes of the academic freedom in Germany emphasize the normative role of judicial precedent in the management of the contract of the board of directors and the professorship Under the support of the system, the power structure of “society - university” is constructed. After the freedom of academic movement into China, the freedom of education during the Republic of China and the autonomy of running a school after the reform and opening up were the main manifestations of rights. Through the examination of historical forms, we can conclude that academic freedom, as a means of university governance, has always been developed in the unity of opposites of freedom and control. It is an unavoidable task for our country to right-operate and establish academic authority.