27: Untitled Page 12

Last updated
Save as PDF

Page ID: 10341

\( \newcommand{\vecs}[1]{\overset { \scriptstyle \rightharpoonup} {\mathbf{#1}} } \) \( \newcommand{\vecd}[1]{\overset{-\!-\!\rightharpoonup}{\vphantom{a}\smash {#1}}} \)\(\newcommand{\id}{\mathrm{id}}\) \( \newcommand{\Span}{\mathrm{span}}\) \( \newcommand{\kernel}{\mathrm{null}\,}\) \( \newcommand{\range}{\mathrm{range}\,}\) \( \newcommand{\RealPart}{\mathrm{Re}}\) \( \newcommand{\ImaginaryPart}{\mathrm{Im}}\) \( \newcommand{\Argument}{\mathrm{Arg}}\) \( \newcommand{\norm}[1]{\| #1 \|}\) \( \newcommand{\inner}[2]{\langle #1, #2 \rangle}\) \( \newcommand{\Span}{\mathrm{span}}\) \(\newcommand{\id}{\mathrm{id}}\) \( \newcommand{\Span}{\mathrm{span}}\) \( \newcommand{\kernel}{\mathrm{null}\,}\) \( \newcommand{\range}{\mathrm{range}\,}\) \( \newcommand{\RealPart}{\mathrm{Re}}\) \( \newcommand{\ImaginaryPart}{\mathrm{Im}}\) \( \newcommand{\Argument}{\mathrm{Arg}}\) \( \newcommand{\norm}[1]{\| #1 \|}\) \( \newcommand{\inner}[2]{\langle #1, #2 \rangle}\) \( \newcommand{\Span}{\mathrm{span}}\)\(\newcommand{\AA}{\unicode[.8,0]{x212B}}\)

I.Plurality and the Traditions of Swiss Legal Culture

If we look for defining elements of Swiss legal culture – for the totality of Swiss legal rules, for the political, social, and economic preconditions of their creation and application, and for the references to different collective processes of creating sense for these phenomena – there appears to be at least two defining features. Certainly, one distinguishing feature is the internationality of the Swiss legal order, in terms of the strong Swiss commitment to international rules and international organisations, although there of course remains strong opposition against such internationalisation. Another defining characteristic – which shall be the conceptual starting point of this chapter – is the importance of plurality. Switzerland has four official languages (Article 4 Federal Constitution)1, and places a strong, if not defining importance on cantons and their cultures as making up the Swiss confederation (Article 1 Federal Constitution, see also Article 3 Federal Constitution). Further, considering the importance of the municipal level in daily legal practice, the Swiss legal order can be regarded as structurally pluralistic. This relates to the connection of different cultural areas and traditions as embodied in the sometimes-complex relationship between the great Swiss regions (West, East and South) and their various cultural traditions. As a consequence, Swiss legal culture is also defined by the mechanisms and concepts it utilises to manage, coordinate and mediate these pluralities. For example, the idea of the Swiss “Willensnation”, i.e. a nation which rests on their members will,2 was an important conceptual element in defining the unity of the Swiss people as acting entity in the federal constitution. This corresponds with the strong presence of the idea of popular sovereignty as an integrating element in Switzerland: Direct democracy is a pivotal element of Swiss legal culture, because it is perceived to be a particular strong device of expressing the will of the people. Another means of coordinating plurality by mediating conflicts of different interests and regions is provided by certain features of Swiss legal tradition. These elements have developed over the course of Swiss legal history, in particular on the confederate and federal level. Their emergence and evolution shall be addressed in this chapter. However, only specific aspects of Swiss legal tradition shall be discussed.

For the purposes of this survey, two larger periods shall be addressed. The first period includes the history of the so-called Old Confederacy from the 13th/14th century to 1798, while the second stage is defined by the emergence of the modern Swiss constitutional welfare state. In what follows, it shall be argued that the legal history of the Old Confederacy was particularly defined by strong traditions of autonomous rulemaking by means of covenants and customary law, albeit that decrees have been gaining increasing importance since the 16th century (II.). In a second step, the importance of constitutions and codifications as defining elements of lawmaking in the modern Swiss state shall be discussed (III.). The emergence of internationality as part of the tradition of Swiss legal culture is subject of the following chapter.

1Federal Constitution of the Swiss Confederation of 18 April 1999, SR 101; see for an English version of the Constitution www.admin.ch (https://perma.cc/M8UJ-S369).

2In greater depth on the evolution and cultural function of this concept OLIVER ZIMMER, A Contested Nation: History, Memory and Nationalism in Switzerland, 1761–1891, Cambridge 2007, pp. 151, pp. 207.