The systems-theoretical perspective as a gateway to understanding scientific freedom?

Abstract

From a comparative legal perspective, scientific freedom has so far been one of the least extensively contoured fundamental rights, with even the most basic questions, including the meaning and purpose of this guarantee, up for debate. This circumstance is taken as an opportunity to take a closer look at a specific approach that offers itself in this context as a theoretical foundation for further reflection: The paper critically examines selected systems-theoretical assumptions and, in particular, Niklas Luhmann's systems-theoretical understanding of fundamental rights, as essentially set out in his 1965 work. It is analyzed to what extent a systems-theoretical perspective could contribute to a better understanding of said fundamental right. It is argued that adopting such a theoretical approach would entail significant deficits: First, the systems-theoretical categorizations – namely "expansion tendencies" and "structural couplings" – are characterized as distorting and simplistic. Secondly, it is criticized that the concept of "expansion tendencies" de facto attributes responsibility for violations of fundamental rights to a system instead of to concrete individuals. Thirdly, a problem inherent in the systems-theoretical interpretation is identified in connection with the conceivable scenario in which the interests of the system deviate from those of the concrete individuals.