— Christoph Möllers, Professor of Constitutional Law and Jurisprudence, Humboldt-Universität zu Berlin; Permanent fellow, Wissenschaftskolleg zu Berlin.
[Editor’s Note: In conjunction with the 2026 ICON-S conference in Dublin, Ireland, ICONnect is featuring blog posts written by some of the participants in the 2026 conference’s Plenary sessions. This is the second post in that series.]
The revolutionary age around 1800 is often credited with the invention of modern constitutionalism. But what happened to universities and colleges during this epoch? A short look at the two exemplary revolutionary orders, the United States and France, may bring surprising insights and could provide us with some lessons for today.
France closed down its faculties during the revolution. For the revolutionaries, this was part of their fight against “corporations”, public entities in the twilight between the individual and the democratic representation of the people. After a long and fascinating debate in the National Assembly early on in the revolution, all corporations had been be banned by law. In the revolutionaries’ eyes such intermediary powers stood for many bad things: privilege, exemption from general laws, lack of political control and public scrutiny. In the words of the law’s sponsor Le Chapelier: “There is nothing but the special interest of the individual and the general interest.“ In the name of a general prohibition of corporations not only universities, but professional guilds and trade unions were also outlawed and closed down. French universities were only slowly re-opened after the revolution, but it took the whole 19th century for them to regain the degree of independence that they had had before.
Not much later, in 1819, the US Supreme Court handed down the decision Dartmouth College v. Woodward. The state legislature of New Hampshire had tried to get control over the college that was founded in colonial times by a royal charter of King George III. But New Hampshire’s attempt to change the College`s program, to replace its President, and to pack its board failed. Chief Justice John Marshall declared the statute void. The court interpreted the charter as a private contract, not as a public donation, and saw the legislative decision in violation of the contract clause in the US constitution. With this decision, a formerly public institution was de facto privatized. The mostly religious public aims of the college were transformed into preferences of its owners. The word “corporation”, originally designating a public unit outside the core state administration, became synonymous with business.
In both cases institutions of feudal origin, situated in a constitutional grey zone between the state and the private sphere. were institutionally reallocated by the political process. In the US they were privatized; in France they were consummated by the state administration. In both cases the political motives behind this move were basically liberal-economic. Corporations should not accumulate negotiating power in an open market (this was the core motive in France), neither should they operate in dependence from the state.
In most European countries the development took, due to a lack of revolutionary change, a different path. Universities continued to operate as public entities, yet they got more and more under the control of the rapidly growing administrative state, especially because they needed funding for a growing budget. It was during the still interesting constitutional debates of the German Weimar Republic that this corporatist form was re-interpreted in the light of constitutionalism. The conservative constitutional lawyer Rudolf Smend developed a model to understand public corporations as a matter of the protection of rights. He argued that not only the individual researcher, but first and foremost the university as a public entity should enjoy academic freedom also against actions of the state which founded and finances it. In a reasoning that referred back to German idealist philosophers like Fichte and Hegel the basic right of scientific freedom should not primarily serve the single researcher, but the immanent logic (the still often mentioned, rather untranslatable Eigengesetzlichkeit) of research.
Smend became the most influential constitutional scholar in the early days of the German Federal Republic. The German constitutional court soon accepted his argument and with it the ability of public universities to claim a basic right. Today, Germany has an amazing amount of constitutional and administrative case law that is mostly concerned with questions of university governance, limiting the illegitimate influence of political decision-makers, but also the participatory rights of students and staff in the university.
To be sure, the German path to entrench corporatism by granting basic rights to some public entities (universities, public broadcasters, incorporated religious communities) cannot serve as an institutional template for democratic constitutional orders. It produces many problems of its own, some of them already foreseen by the revolutionary critics of corporatism. In the case of universities, it is structurally conservative (after all we talk about a post-feudalist construction), it privileges professors, it is suspicious of democratic experimentalism in higher education; by exempting universities from general labour rules, it has contributed to precarious working conditions for young academics, and it has definitely over-constitutionalized the German law of higher education.
Still, two of its basic ideas may be of interest in authoritarian times. First, in such times it is hard to tell from which direction the worse threats come, from a capitalist private sector or from authoritarian politics (if the two can be told apart, anyhow). The US-American case shows that a business model for universities does not only create dependence from funders, but also does not necessarily help against political pressure. Under such conditions, it may be interesting to rethink the construction of public institutions whose legitimacy may be democratic by means of an inclusive self-administration, yet not directly dependent on a general political process, providing for spaces of intellectual exchange that can claim a certain degree of institutional extraterritoriality from the state. But this would, secondly, also require to acknowledge that research has to follow a logic, which is different from politics. A rediscovery of intermediary powers may just be a second best solution in undemocratic times. For constitutional thought, this would mean recognising spheres beyond law and politics.
Suggested citation: Christoph Möllers, Corporatism and Academic Freedom, Int’l J. Const. L. Blog, Jul. 1, 2026, at: http://www.iconnectblog.com/corporatism-and-academic-freedom/