Since 1848, Switzerland has been a federal state. Any evaluation of Swiss law must start from the fact that both the Confederation and its member states, the cantons, have been perfect, with the right to their own legislation, administration and jurisdiction. One of the most important tasks of the federal constitution is to devolve the sectors that belong to it to the federal authority. The relationship can be shifted in favor of the central federal authority only by means of a revision of the federal constitution, which must be approved by the majority of the cantons and by the majority of those entitled to vote who participated in the vote (Federal Constitution, Art.123). Here we find the contrast between centralism and federalism, which leaves its mark throughout the development of Swiss law. The life of the Confederation has reached such a high degree of intimate solidity only thanks to the independence left to each individual state, and to the general mutual tolerance. It is clear that from this derives a great disconnection of the juridical system, and also derives innumerable difficulties in the delimitation of federal law against the cantonal one and vice versa: difficulties that do not occur, in this respect, in unitary states. The principles that apply for this delimitation are the following: where the federal authority legislates within the constitution itself, cantonal decrees, which are in contrast with the federal authority, are not valid; the federal authority itself ensures that this dividing line of competences is observed, through its supreme authorities,
Historical development of the Confederation (1291-1798). – The importance of the cantons in modern public law can only be explained by referring to the historical development of Switzerland (see above: History). Over the long centuries of Swiss history, legislative activity in the field of criminal, procedural and private law remained with the individual members of the Confederation, which gave rise to an infinite number of citizens and territorial rights. But ancient unwritten customs also persisted tenaciously, especially in rural cantons. The few general ordinances decided by the diet concerned the maintenance of public peace and relations with foreign countries.
In the era of the Helvetic republic (1798-1802) and in the one that followed until 1813, under French domination, there were numerous attempts to legislate in the field of criminal and civil law, but only very few succeeded, because they were in too strong contrast with the ancient customs of the populations; after the fall of Napoleon they were immediately eliminated. In 1815 a new federal pact was concluded between the cantons which were then 22: the pact was linked, in many respects, to the situation of 1798. In particular, the member states of the Confederation were fully given back the right to legislate, while the Confederation was brought back to its ancient tasks. Only the federal constitution of 12 September 1848, reached after serious internal struggles, transformed the
Already with 29 May 1874 the constitution of ’48 was replaced by a new one, still in force today, which led to a notable strengthening of the central authority, together with an improvement of the rights of the people. Later it was often subjected to additions, by means of partial revisions. A request for a total review and requests for countless partial reviews are currently the subject of lively political discussions.
Constitutional law. – It is based on the texts of the federal pact and cantonal constitutions, since each canton also has its own constitution, which is guaranteed by the Confederation. Agreement on common principles is reached by the following provision of the federal constitution: “The cantons are obliged to request the guarantee of the Confederation for their constitutions. The Confederation assumes this guarantee when: a) they contain nothing contrary to the provisions of the federal constitution. ; b) ensure the exercise of the right political rights representative republican and democratic forms; c) have been accepted by the people and can be reformed when an absolute majority of citizens so requests “(art. 6). The federal constitution mainly contains the division of labor between the Confederation and the cantons, the rights of freedom of citizens guaranteed by the Confederation (principle of equality, freedom of belief and conscience, right of petition, right to form associations, freedom of the press, freedom of industry and commerce, etc., the organization of legislation and confederal authorities and, finally, provisions for revision of the constitution itself).
Similarly, the constitutions of the cantons contain the general principles of legislation, for the administrative organization and for the activity of the cantons in their own domain, where the rights of the Confederation do not reach. In correspondence with the form of the state, which is completely democratic, the discipline of the citizen’s “freedoms” and “public rights” plays a large part in all constitutions.
Administrative law. – The dualism between the Confederation and the cantons continues in the details of the activity of the state. Both the Confederation and the cantons always have some relationship with any branch of state activity. So there is a confederal administrative law and a cantonal administrative law. It is true, however, that confederal administrative law has become particularly vast and comprehensive, following the continuous increase in the tasks devolved to the Confederation. On the other hand, the Confederation often calls on the cantons to assist it in carrying out its tasks. Confederal administrative law is multifaceted, but cantonal law is even exterminated. Furthermore, it should be noted that in many cantons the municipalities have a very extensive autonomy, so that the ordinances of the municipalities must also be taken into account. referendum, popular initiative), makes its first weapons dealing with the affairs of the municipality.
Private law. – In private law there is the clearest expression of the slow work with which confederal law gradually attracts cantonal law to itself. The constitution of 1848 did not yet impose any private law tasks on the Confederation. But in the constitution of 1874 this received the right to legislate “on all legal relations relating to commerce and the circulation of securities”. This formed the basis for the important federal law of 1881 on the law of obligations, which regulated not only civil credit relations, but also all company and commercial law. Thus there is no particular commercial code in Switzerland. Only after this federal law had proven itself well, and the desire for a more complete unity of law made itself felt stronger and stronger,
Thus the way was opened for the creation of the civil code, the most famous of modern Swiss laws. The project was born from the pen of a single editor, E. Huber. The civil code was accepted on 10 November 1907 by the federal assembly; since the referendum was not requested, the law was able to come into force on 1 January 1912. The Swiss civil code does not contain a real general part: after ten introductory provisions, there are the law of persons, family law, inheritance law and real rights. The law of obligations of 1881 was revised with a special law of March 30, 1911 which adapted it to the civil code. However, the old numbering of the articles was maintained and passed into practice. The last titles of the law of obligations, which dealt with commercial law and company law, could not then be reworked from scratch. Only recently has the renovation of those parts been resumed.
In the field of confederal civil law, moreover, the cantons have ample room for additional legislative work. In particular, they must establish the judiciary necessary for the execution of the norms of civil law and must organize the procedure. Thus the cantonal laws for the introduction of the civil code, which must be approved by the federal council, acquire great practical importance.
The civil code does not regulate the whole area of private law; thus, it is supplemented by important federal laws; p. eg, that on invention licenses, trademarks and commercial trademarks, copyright, insurance law, etc.
Civil law. – Probably the Swiss people would have devolved to the Confederation, in 1898, the sovereign right to legislation over all private law, had it not been stated in the same article of the constitution: “The organization of the courts, the judicial procedure and the administration of justice remain the responsibility of the cantons “(cf. art. 64, modification of 1898). In reality, the cantons have established autonomous courts, and have issued their own regulations for civil proceedings.
The organization of the courts goes along with the very ancient traditions of democracy. In particular, judges are only elected for a relatively short term of office, in principle. The election is up to the people themselves – directly in the “Landsgemeinde” or through the ballot box – or to popular representation. In the innumerable lower collegiate courts, judges are found almost everywhere who exercise their function alongside their civil profession.
After the famous Geneva Code of Civil Procedure of 1819 (Code Bellot), the cantonal legislators have issued more than 60 codes of civil procedure (a significant number of which came out only after the introduction of the Swiss civil code) which, despite all the differences in detail, also have common fundamental and distinctive features. What is peculiar to all is the tendency to a simple procedure and contrary to any empty formalism. The organization of the bar is also cantonal, and there are significant differences; but everywhere the parties have the right to support their case before the court even without a lawyer. Similarly, the cooperation of lawyers and attorneys is not known: when a lawyer is called, he must represent his client in any case and towards anyone.
Alongside the cantonal procedural law there is always the federal one, and to a considerable extent. The federal constitution itself contains important general rules on legal protection, eg. the obligation of the cantons to enforce the legally valid civil courts of other cantons (Article 61). Since 1848 the Confederation has assumed, through its federal tribunal, and to an ever-increasing extent, various tasks of the administration of civil justice. Thus, there is a limited number of legal disputes that are decided by the federal court in a single instance. Much more important from a practical point of view is the possibility of appealing (civil law appeal) against the decision of the cantonal supreme instance if the contested value reaches the amount of at least Fr. 4000, and if there is an infringement of federal law. Finally, many federal laws contain individual prescriptions that belong to the field of civil procedural law, such as, for example, the provisions on the local jurisdiction of the courts.
The seizure procedure has been governed mainly by federal law since 1892. Federal law on debt collection and bankruptcy applies, which is applicable to any “payment of money”. For other executions (such as, for example, the handover of an object, the provision of personal services), cantonal law applies.
Criminal Law. – As with civil law, the criminal law legislation as a whole was ceded to the Confederation in 1898. A first draft of the federal penal code due to Stooss had already appeared in 1893, but it was only in 1918 that the federal council presented its draft to the federal assembly, a project that is still under discussion.
Until the promulgation of the new code, today’s very complicated system remains in force. With the exception of two, all cantons have their own penal codes, which, however, depend on foreign models much more – for example – than the codes of criminal procedure. Two cantons (Friborg, Waadt) have also given themselves new criminal codes in recent years: however, they have made great use of the federal project. In relation to the religious and cultural differences mentioned above, the cantonal penal codes also reveal considerable contrasts, which also offer enormous difficulties for the unification of the law. We will recall the problem of the death penalty (preserved in 10 cantons, mostly of minors; abolished in the others), and crimes against morality and against religion.
Alongside the cantonal criminal legislation, the Confederation has always affirmed, starting from 1848 and always extending it, its own sovereignty for criminal law. Since 1853 the federal penal code has been promulgated, still in force today, which establishes the penalties of the Confederation against attacks on its existence as a state. In particular, these are crimes against the internal and external security of the Confederation, against foreign states, against the constitutional order, against internal security, crimes of federal officials and against them, falsification of federal documents, etc.
Much more extensive, and constantly increasing, are the criminal laws that the Confederation enacts in connection with its special tasks. It deals with a number of specific criminal cases, which are scattered throughout the confederal legislation, and are very difficult to consider as a whole. Since 1849, the field of military criminal law has belonged completely to the Confederation; today the military penal code of 13 June 1927 is in force.
Penalty process. – As with civil procedure, the federal constitution guarantees the maintenance of the cantonal codes of criminal procedure, even after the material criminal law has been unified (cf. Art. 64 bis). The cantons therefore appoint their own criminal courts. There are still considerable differences: an example of this can be the fact that in some cantons there are assize courts, in many others, there are no. The cantonal regulations in force on the investigation of criminal proceedings, on the judicial procedure and on the execution of the sentence are also multifaceted.
As the Confederation made itself the creator of law for the protection of its own institutions, it also had to establish its own bodies for criminal persecution, and regulate the procedure. This happened first with the Federal Criminal Procedure Code of 1851, which has now been replaced by the law of June 15, 1934, bearing the same name, and which came into force on January 1, 1935. Here we find, in particular, the jurisdiction and procedure of the two criminal courts established by the Confederation, the federal assises and the federal criminal court, both of which are in connection with the federal court. Of course, not all crimes against federal laws lead to the federal judge’s sentence; on the contrary, the investigation and judgment of such cases are often devolved to the cantonal bodies, partly by federal law, part by special provision of the federal council, subject to an appeal in cassation for the violation of federal law and federal judgments. Military criminal law is applied by special military courts, appointed by the Confederation; In this regard, the federal law on the organization of military courts, of June 28, 1889, makes provision.
International public law. – The care of foreign affairs is entrusted to the Confederation (cf. art. 8). The maximum policy, not written but followed for centuries, of neutrality constitutes the principle followed by the Confederation in its relations with foreign countries. It is expressly recognized by the powers that concluded the Treaty of Vienna in 1815 and was confirmed by the signatories of the Treaty of Versailles (art. 435), finally by the London declaration of the Council of the League of Nations of February 13, 1920 for the case of entry of Switzerland into the League of Nations itself. Alongside the unwritten maxims of the ius gentium, there are many important political treaties, concluded by the Confederation with several or single foreign states. Particularly important are the countless treaties of agreement and arbitration, on the basis of which the Swiss state intends to find peaceful and just solutions to the foreign policy issues that concern it.
International Private law. – After the unification of private law, the previously very important conflicts between cantonal rights lost their significance. Limiting the application of federal law to foreign legal systems is the responsibility of the Confederation; but also in Switzerland there is no comprehensive legal regulation. In the first projects of the civil code some attempts had been made; but the task proved particularly difficult, so that we were satisfied with a provisional arrangement. This consisted of some additions to the old federal law of June 25, 1891, with the peculiar title: “Federal law on civil law relations of domiciled and residing persons”, and had as its main purpose the ordering of conflicts between different cantonal rights. The legal positions of the Swiss abroad and of foreigners in Switzerland were considered only in secondary and indirect terms. Furthermore, this law, with the additions annexed to the final title of the civil code, concerns only personal, family and inheritance law, also entrusting many particular issues to the judge in these areas of law. In the areas of real rights and obligations, the rules of law are completely lacking, with the exception of exchange law. All this matter is left to doctrine and practice. In this regard, the federal court formulated certain principles in a series of decisions which have acquired value as a rule for all the other courts as well. Furthermore, this law, with the additions annexed to the final title of the civil code, concerns only personal, family and inheritance law, also entrusting many particular issues to the judge in these areas of law. In the areas of real rights and obligations, the rules of law are completely lacking, with the exception of exchange law. All this matter is left to doctrine and practice. In this regard, the federal court formulated certain principles in a series of decisions which have acquired value as a rule for all the other courts as well. Furthermore, this law, with the additions annexed to the final title of the civil code, concerns only personal, family and inheritance law, also entrusting many particular issues to the judge in these areas of law. In the areas of real rights and obligations, the rules of law are completely lacking, with the exception of exchange law. All this matter is left to doctrine and practice. In this regard, the federal court formulated certain principles in a series of decisions which have acquired value as a rule for all the other courts as well. In the areas of real rights and obligations, the rules of law are completely lacking, with the exception of exchange law. All this matter is left to doctrine and practice. In this regard, the federal court formulated certain principles in a series of decisions which have acquired value as a rule for all the other courts as well. In the areas of real rights and obligations, the rules of law are completely lacking, with the exception of exchange law. All this matter is left to doctrine and practice. In this regard, the federal court formulated certain principles in a series of decisions which have acquired value as a rule for all the other courts as well.
We must not forget a series of political treatises on isolated practical problems: remember, Fr. e.g., the Hague Agreements on civil procedural law, marriage, protection of minors, or treaties on the execution of sentences, concluded by Switzerland with France, Spain, Austria, Czechoslovakia, Germany and with Italy.