ABSTRACT

Science and scientific thought are indispensable components of social development. Besides the freedom of science is a fundamental right. Scientific results have a major impact on legislation and the application of law. This is perfectly illustrated by the Hungarian government’s response to the Covid pandemic and the Hungarian Constitutional Court’s practice on compulsory vaccination. Despite this, there has been few academic works on freedom of science as a fundamental right. That is why I deal with freedom of science in my study. In this context I examine a number of components of this topic. First, I briefly introduce the historical evolution of science and scientific thought. Then I will move on to an analysis of the Hungarian legal system. As a part of my analysis, I outline introduce the theoretical foundations of science and scientific thought. After this, I turn to the definition of scientist because only scientists have the right to evaluate scientific research. In other words, they are entitled to this fundamental right. In the final part of my study, I examine the freedom of science from the perspective of the limitation of fundamental rights.

Keywords: fundamental rights | freedom | science | scientists | limitation

I. INTRODUCTION

According to the provisions of the Fundamental Law of Hungary (hereinafter: Fundamental Law): “Hungary shall ensure the freedom of scientific research and artistic creation, the freedom of learning for the acquisition of the highest possible level of knowledge and, within the framework laid down in an Act, the freedom of teaching.”[2] “The State shall have no right to decide on questions of scientific truth; only scientists shall have the right to evaluate scientific research.”[3] These constitutional provisions ensure the freedom of science as a fundamental right, even though in the constitutional law studies the researchers relatively rarely deal with this field of topic. On the other hand, the outbreak of the coronavirus pandemic in 2019 also raised questions about the research topic, as both legislation and application of law had to respond to these challenges, and public authorities had to make decisions based on scientific findings more than once. Taking these into account, in my opinion, it is worth and necessary to examine the cited constitutional text and the relevant practice in the Hungarian constitutional system. In this context, firstly I consider it necessary to give a brief theoretical introduction to science and scientific freedom. Then I turn to the Hungarian constitutional practice. In this context, I compare the provisions of the former Hungarian Constitution with the Fundamental Law of Hungary. I focus on the practice of the Hungarian Constitutional Court and examine its practice on the freedom of science and the limitations of fundamental rights. According to my hypothesis, none of the limitation of fundamental right tests can be applied to the fundamental right provided in Article X. Paragraph (2) of the Fundamental Law, which I try to justify in my study.

II. THE FREEDOM OF SCIENCE AND THE WORK OF SCIENCE

Péter Szigeti cites the English mathematician and philosopher, Alfred North Whitehead’s definition of science. This definition can be applied to life sciences, natural sciences, social sciences, the field of human sciences and mathematics equally. According to this definition, the exercise of science is formulating a coherent, logical, necessary system of general ideas, in the categories by which all elements of our experience can be interpreted. It does not matter whether we write a study on natural or physiological phenomenon, human fields (philosophical, psychological, ethical), physical or social problems. It is the task of science to describe phenomena, classify them according to their properties, separate appearance from reality, discover explanatory principles and relationships and to record these experiences for humankind.[4] In other words, the fundamental goal of science is seeking truth, which (at least partially) corresponds to reality. Moreover, the indispensable criterion of science is objectivity. Objectivity can be interpreted as a world that is outside human relationships. This form of objectivity is not available in the social and historical sciences. While a chemist may seek to limit his or her interference in experiments, a social scientist, who analyses history, behaviour and values cannot eliminate the subject from the situation.[5]

The scientific thought must be unbiassed, meaning that scientists must not be partial, their personal interests should not influence their judgements, because personal convictions can lead to distortions and falsification.[6] According to an even more simple definition, science is the totality of observations, experiences, and knowledge of the world around us and society.[7]

Many varieties of sciences can be distinguished. We can speak about formal sciences that deal with thoughtful or abstract objects, for example, mathematics. There are factual sciences alongside formal sciences. In this case, all objects or parts of these objects actually exist or are realistically possible. The factual sciences can be further subdivided into natural and social sciences according to the nature of their domain. These fields are natural sciences and social sciences. However, the fundamental classification is founded on the goals of the research, therefore, we can speak about cognitive or basic sciences and operational or applied sciences.[8]

And what did science give to humankind? Max Weber summarized the advantages of science in three points. First of all, the science serves proper knowledge of techniques, which can be used to lead our life, the internal things and the human acts with various calculations. Secondly, science puts the methods, instruments, and school of thought at our disposal. For the third time, science serves as the light by which we can reflect on current value problems in different ways.[9] In addition, Max Weber examined science on two levels. On the one hand, the science is an educational activity at universities, on the other hand, science is a research activity at universities and elsewhere. In both cases, there is a fundamental requirement, which is value neutrality. The scientist must concentrate on what he or she can establish factually, and value judgements, sympathy or antipathy should not influence either the research or the educational activity.[10]

Two arguments can be mentioned in support of the freedom of science. The first argument centres the cognition of truth, whereby people learn. In addition – as John Stuart Mill said –, the research of natural scientific and social scientific truth has as a significant role in social and political development. “Truth”, the “enlargement of knowledge” and the “freedom of science” are the fundamental elements of all theories of intellectual and scientific freedom. According to the second argument, we must be mistrustful against such governments which attempt to control or restrict the freedom of scientific research and notifications. Likewise, we must hold such institutions suspect – for example the Church –, which apply sanctions against everybody, who do such activities, which they object.[11] Scientific opinion is the subject of constitutional protection guaranteed by the freedom of science, i.e. the notification accepted as scientific by the scientists. The protection of scientific opinion not only imposes an obligation on the state to refrain from unconstitutional restrictions on scientific activity, but also imposes an obligation to take positive action, to create, maintain and protect the conditions for freedom of scientific research.[12]

It is also part of the freedom of science that the state must protect the scientific achievements. The state can protect these achievements via copyrights and intellectual property rights, for example special provisions of industrial property protection, patent law, innovations, design protection or research contracts. Therefore, the state must stay neutral and must not interfere into the scientific research, irrespectively of the preferences of the state.[13] This rule does not merely reserve the assessment of individual scientific results to the scientists, but generally excludes the state from determining which specific activity can be scientific activity, what methods can be used in scientific research, and what can be considered science at all.[14] In this case, I must emphasize a significant difference. Namely, the requirement, that state must not interfere into the scientific research, is not equal when the state prefers certain scientific achievements. The freedom of science as fundamental right does not require that the state to take equal account of individual scientific results.

The practice of the Hungarian Constitutional Court perfectly verifies my claim. In a relatively recent decision, The Constitutional Court examined a constitutional complaint against certain provisions of a government decree on the second phase of protective measures applicable during the period of state of danger (vaccination certificate; negative discrimination). In this case, the Constitutional Court answered natural scientific questions, too. In this decision, The Constitutional Court depended on the documents, recommendations of the domestic and international professional organizations. According to these documents, the vaccines can protect against the COVID-19. In addition, the Constitutional Court exhaustively quoted its own former practice and highlighted that a state organ cannot decide in scientific questions and the choice between competitive standpoints does not belong into its competence. That is why, the Constitutional Court exclusively takes “the determinative scientific view” into account in such cases.[15] In my opinion, the Hungarian Constitutional Court obviously chose a scientific opinion in this case.

III. THE FREEDOM OF SCIENCE AS A FUNDAMENTAL RIGHT

The freedom of science as a fundamental right is a second-generation, cultural right besides the right to education, the right to culture and the freedom of artistic expression.[16] Moreover, the freedom of science is connected to the freedom of speech as a fundamental right. In this way, the freedom of science shares the same protection against state interference and restrictions as the freedom of speech.[17] Consequently, the freedom of science, the freedom of dissemination of scientific knowledge and the freedom of scientific education can be limited, but in any case, it is a freedom that should only yield to exceptional restrictive provisions.[18] Therefore, it can be concluded that freedom of science is a second-generation fundamental right, but in terms of the limitation of a fundamental right, it is close to the freedom of expression.

Theoretically everybody is entitled to the freedom of science. Nonetheless, the actual possessors of this fundamental right are the scientists. But who are the scientists? How does somebody become scientist? The answer is the following: Due to autonomy and freedom of science, the scientist can consider and decide about this question.[19] The Hungarian Constitutional Court has already examined the (1) and (2) Paragraphs of Article 70/G of The Constitution of the Republic of Hungary (hereinafter: former Constitution).[20] The Constitutional Court qualified the freedom of science and artistic expression, the freedom to learn and the freedom of teaching as the aspects of communicational fundamental rights, and in this context the Constitutional Court deduced the special protection of autonomy of science and decision-making authority connected with the science.[21] In other approaches, the rights to academic freedom are explicitly extended to the people that embody academic autonomy, as professors, researchers and students.[22] It is worth mentioning that science and universities are not necessarily inseparable institutions. However, the work of universities is based on science, but science does not necessarily require universities. Science was present in the world before the twelfth and thirteenth centuries, the time when France and Italy established the first universities, and since then, science has been enriched by the achievements of many genius minds who never occupied a university job.[23]

Returning to the findings of the Constitutional Court, the body essentially defined the subject of the freedom of scientific life, i.e. it took a position on the question of scientific quality - although, based on its previous decisions, only the scientists are entitled to decide on this subject. Thus, the Constitutional Court narrowed the scope of the entitled to scientific freedom compared to the provisions of the Fundamental Law. It is clear from the above that according to the Constitutional Court, the subjects of academic freedom and the academic community are the same. The basis of this understanding is probably that the Constitutional Court linked the subjective right to freedom of science to the status of the institution and claimed that those who are subjects of academic freedom are automatically considered to be also scientists. In contrast, not only persons who establish any kind of legal relationship with a higher education institution become scientists, but also those who carry out activities which result in scientific achievements, according to the scientist.[24] It can be mentioned as an example a person with a PhD-degree who does not work in academia sphere, still publishes regularly in a noted journal. In the same way, an undergraduate does not become a scientist just because he or she has a legal relationship with a university but has no scientific achievements.

Finally, we must examine the limitation of freedom of science. The freedom of science is not an unrestricted fundamental right. It is a felicitous thought from Joseph Donat: “Should the scientist be given the right to break every rule of logic, to ignore all progress, and perhaps in his capriciousness return to the four elements of Aristotle, or the astronomical chart of primitive ages? Nobody demands this. No, science must be bound by the TRUTH. Freedom indeed should not mean lawlessness. Science remains bound by general laws of logic, and by positive facts. Truth is the irremovable barrier set in restraint of the freedom of everything, even of scientific thought.”[25] Besides this idealist statement it must be examined the questions of restriction of science freedom from legal dogmatics’ aspect. There are two conditions of the limitations of fundamental human rights. On the one hand, there are formal requirements, on the other hand, there are substantive requirements as well. As a formal requirement, fundamental rights can be exclusively restricted in legal acts. This requirement has two parts. At first, the level of legal sources. Secondly, we must mention the legal certainty, too. Still if the restriction of fundamental rights suits formal requirements, it needs further examination. The substantive requirements of fundamental rights limitation affect the essence of fundamental rights. These requirements justify the limitations of human natural rights, and the cases, reasons, and extent of the natural human rights restriction at the theoretical and practical levels.[26] The Hungarian Constitutional Court elaborated different tests of fundamental right restrictions. However, there is no single special measure on the freedom of science, for this reason, the Constitutional Court would have to apply the necessity-proportionality test. While there are a few examples on restriction of scientific freedom in the Hungarian legal practice, it is nonetheless worth examining this question in more detail. The necessity-proportionality test is a multilevel test, and the steps of the examination are the following: first of all, we must study the aim of the limitation of fundamental rights. This is typically a legislative intent which has to be legitimate. After this we examine the suitability of the measure, then we evaluate the necessity of the means chosen by the legislator. Finally, we examine the proportionality between the importance of the legislative intent and the harm caused by the limitation of human right.[27]

In more detail, in the first step we examine the existence of a constitutionally acceptable aim, which can be the argument and justification for the restriction of a fundamental right. This legitimate aim usually can be two concrete aims: another fundamental right or some public interest.[28] According to the Fundamental Law “a fundamental right may only be restricted to allow the effective use of another fundamental right or to protect a constitutional value, to the extent absolutely necessary, proportionate to the objective pursued and with full respect for the essential content of such fundamental right.”[29] In the second step, it must be examined whether the legislator has chosen the mildest instrument for the legitimate aim in the course of the limitation of the fundamental right.[30] The suitability criterion as such can be said to apply in the vast majority of cases to a range of possible regulatory (limitation) solutions - so that the requirement is primarily concerned with the elimination of a measure that is not suitable for achieving the desired aim.[31] If the legitimate objective of the limitation of the fundamental right is justified, and the method of restriction is suitable for the realization of legitimate aim, then a decision on the necessity of restriction has to be made in the next step. In this examination part, it has to be evaluated whether the legislator chose the mildest restriction instrument for the attainment of the legitimate objective. Finally, the harm caused by the restriction must be compared with the importance of legitimate aim. Therefore, the essence of proportionality is the aspect of the relation between two values.[32]

Over the four-level test, there is a further requirement in the course of restriction of fundamental rights. The limitation of rights must respect the essential content of the fundamental right. The German constitution introduced this concept: “In no case may the essence of a basic right be affected.”[33] The former Constitution, later the Fundamental Law took over this concept from the German constitution. According to the German legal dogmatic, every right has a central essence which the limitation of the fundamental right must not affect (the absolute aspect of essential content). The essential content is independent of the occasional, external circumstances (the objective aspect of essential content). Consequently, the legislator must not restrict the essential content, while in the case of non-essential content, the necessity and proportionality test is acceptable. Naturally, the determination of essential content is a result of judicial deliberation/decision.[34] It is worth to mention the practice of the Hungarian Constitutional Court, too. According to László Sólyom,[35] the 8. § paragraph (2) of former Constitution[36] set a limit of restriction of fundamental rights. This constitutional requirement backs out the essential content of legislator’s authority. The right to life and human dignity are conceptually unlimited, the legislator only can totally and definitely deprive people of these rights, therefore we cannot discern a difference between restricted part and essential content. The right to life and human dignity constitutes the essential content, which is why the state cannot restrain them. This statement is only meaningful in the case of external limitations. The right to life and human dignity is a part of the essential content of other human rights because these rights are the sources and conditions of other fundamental rights as well as being the absolute barrier of limitability.[37]

Is it worth examining the relationship between essential content and necessity-proportionality test? First of all, we must determine the meanings of essential content. The possible logical ways and approaches are the following:

a) The essential contents of fundamental rights can be determined in an abstract way. The essential elements of the essential content can be determined, therefore such layers of fundamental rights share an absolute protection.[38]
b) The essential content of a fundamental right always depends on the concrete historical and social environmental context. Consequently, the essence of essential content must be determined each time with fixation of essence elements.
c) The essential content of each fundamental right can be determined on a case-by-case basis, but with the decision of permissible limitation of fundamental rights. Therefore, the essential contents of fundamental rights are approachable from their negative side.
d) The essential content merely has a symbolic function. In other words, the legislator need not take the essential content into account during the restriction of a fundamental right.[39]

In view of what has been discussed so far, let us examine the case of the limitation of the freedom of science. I have already cited the regulations laid down in Article X of the Fundamental Law. As I referred to in the introduction, I will focus exclusively on Article X. Paragraph (2) from limitation of fundamental rights aspect. The proportionality test namely applies to the Paragraph (1), as I have already instanced.[40] This practice is confirmed by the German Constitutional Court, which so often serves as an example for the Hungarian Constitutional Court: “[c]onflicts between the guarantee of scientific freedom and the protection of other constitutionally guaranteed interests ... [must] be resolved according to the constitutional order of values and in the light of the unity of this value system through constitutional interpretation. In this tension, freedom of research does not take precedence per se over other competing constitutionally protected values.”[41]

Now I narrow my examination to the Paragraph (2), which stipulates that “The State shall have no right to decide on questions of scientific truth; only scientists shall have the right to evaluate scientific research.” I tried to ascertain, who are the scientists. On the one hand, this status is found in legal regulations, on the other hand, this categorization can be object of deliberation, too. But how can we evaluate the “non-decision” obligation of the state from the approach of the restriction of fundamental rights? In my view, the necessity-proportionality test cannot be applicable in this case. I must analyse Article X. Paragraph (2) to justify my hypothesis. When the constitution speaks about the state, these are legislator and law application organs. These organs can be political and judicial organs, too. And the result of decision-making is a legal regulation or a decision ending a dispute or other legal procedure. Therefore, the freedom of science means decision-making power for the scientists, while on the other side this fundamental right formulates a prohibition against the state. Therefore, in my opinion, from the point of view of the restriction of fundamental rights, it would either be an absolute restriction on the freedom of science or the contrary, it would not be restricted in any form, because we cannot talk about graduality when deciding on scientific truth. For this reason, the necessity-proportionality test would not be applicable in this case. Regarding the essential content of freedom of science, I think that the abstention obligation (or “non-decision” obligation) of the state is means the essential content. In my opinion, the essential content of fundamental rights can be determined occasionally, however not with the grant of dissimilar essence elements, but with the decision of permissible of limitation of fundamental rights, as it has already been mentioned.

In addition, according to the Article X. Paragraph (2) of Fundamental Law, exclusively scientists shall have the right to evaluate scientific research. I have already examined the practice of the Hungarian Constitutional Court. Now it is worth recalling some previous decisions. In the decision 27/2021. (XI. 5.), The Constitutional Court rejected the motions to establish a conflict with the Fundamental Law and annul certain provisions of the Government Decree No. 484/2020. (XI. 10.). The provisions challenged by a large number of petitioners gave immunity certificate holders additional rights compared to those who did not have them. The basis of the decision was that The National Institute of Pharmacy and Nutrition (OGYÉI) permitted the vaccines which are used in Hungary. Therefore, according to the competent authority, the vaccines are fit for potential development of protection against the infection. Furthermore, the Constitutional Court also surveyed the documents, recommendations, opinions of the competent international organizations on coronavirus vaccines.[42] The decision declared that according to the Constitutional Court’s consistent practice,[43] if the Constitutional Court identifies a scientific standpoint which is supported by a professional international establishment, the Constitutional Court will accept that, because it has no power to query or dispute the grounding and accuracy of these scientific standpoint.[44] In a former decision, the Constitutional Court accepted as a fact that the World Health Organization is conducting a global campaign for the immunization of children on the basis of the prevailing scientific worldview, and that the Hungarian legislation is also situated within this framework. Taking all this into account, it cannot be questioned in the course of the constitutional court proceedings that vaccination serves to increase the resistance of the human body to infectious diseases and to prevent the spread of infectious diseases. Therefore, on the one hand, the vaccinations protect the individual against infection, on the other hand, the whole society against the emergence of epidemics.[45] In my view, the Constitutional Court – as a state organ – undoubtedly evaluates and prefers the different scientific research by choosing standpoint of some domestic or international organization in these cases. Therefore, it seems to me that the constitutional provision (namely only scientists shall have the right to evaluate scientific research) does not succeed entirely, which is exceptionable on the basis of effective legal regulations and the legal practice. Taking all this into account, it can be concluded that constitutional review is excluded in such cases. But, of course, from the point of view of fundamental rights protection, this conclusion is not tenable. In another formulation, the protection of fundamental rights as a constitutional guarantee is contrasted with the freedom of science and the quoted provision of the Fundamental Law.

IV. SUMMARY

Summarizing my above arguments, it is obvious that the quoted provisions of the Fundamental Law raise a large number of questions even if we merely go into legal dogmatic examination. There was a long historical development until the recognition of the freedom of science as a fundamental right. Nonetheless science has always been a part of human thought because it is an indispensable element of social development. My analysis shows that the freedom of science is a fundamental right, though not everyone has the right to freedom of scientific research, because the freedom of science belongs only to the scientists. This is confirmed by the practice of the Hungarian Constitutional Court, according to which scientists are entitled to the freedom of science, and only the scientist decides who belongs among scientists.). On the other hand, I also focused on the possible limitation of this fundamental right, and I came to the conclusion that the necessity-proportionality test is not applicable because the constitutional provision in the Article X. Paragraph (2) of Fundamental Law declares that the state cannot decide on questions of scientific truth. The instanced constitutional provision is an element of the freedom of science. Furthermore, the application of the necessity-proportionality test presupposes a step-by-step examination, but no such step-by-step examination can be applicable in the decision on a single scientific question. Finally, the provision states that only scientists have the right to evaluate scientific research is not enforced. In my opinion, the Constitutional Court clearly took a position in favour of certain scientific achievements in the examined decisions, which is not in accordance with Article X. Paragraph (2) of the Fundamental Law of Hungary. 

BIBLIOGRAPHY

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• Pozsár-Szentmiklósy, Zoltán (2016): Alapjogok mérlegen. Az általános alapjogi tesztek dogmatikája [Fundamental Rights on the Scale. Dogmatic of the General Fundamental Right
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LEGAL SOURCES

• The Fundamental Law of Hungary.
• Decision 23/1990. (X. 31.) of the Constitutional Court.
• Decision 34/1994. (VI. 24.) of the Constitutional Court.
• Decision 41/2005. (X. 27.) of the Constitutional Court.
• Decision 39/2006. (IX. 27.) of the Constitutional Court.
• Decision 39/2007. (VI. 20.) of the Constitutional Court.
• Decision 3292/2017. (XI. 20.) of the Constitutional Court.
• Decision 3080/2019. (IV. 17.) of the Constitutional Court.
• Decision 27/2021. (XI. 5.) of the Constitutional Court.
• The Constitution of the Republic of Hungary.
• Basic Law for the Federal Republic of Germany. 

pdf

Jog-Állam-Politika,
2022/4.
DOI:
10.58528/JAP.2022.14-4.43