by Thomas Cottier and Jens Drolshammer
See also the updated English version of the article which has been published 2016 in German in: Zeitschrift für Schweizerisches Recht:
I. Purposes and Goals
The Anthology of Swiss legal culture brings together a collection of seminal texts made available either in the original language or as an English translation. The very purpose of the project is to make these texts available to a wider community of legal scholars and practicing lawyers online. Swiss law is mainly dealt with in German, French and Italian, and much of it thus remains inaccessible to the world at large. Many do not have access to the rich legal tradition of federalist and democratic Switzerland with its legal institutions strongly embedded in continental European tradition, but also with its succinct institutions rooted in direct democracy and a long standing communitarian tradition. We hope that the collection will facilitate access to those taking an interest in Switzerland and her legal culture and particularities beyond the letter of the law contained within the pages of books and rulings of courts.
The collection offers insights into contributions originating in this country to legal developments in general. This angle is predominant up to World War II. Up to this point in history, there was a remarkable influence on the foundations of public international law. Switzerland, the first multilingual federacy and democracy largely modelled upon the US Constitution and given its geographical location in the middle of Europe, was strongly exposed to international relations and was able to develop an active role in the early days of the Republic offering a model for European integration. At the same time, Switzerland has been exposed to foreign legal culture, in particular German, French and Italian, based upon shared principles of Roman law which have had a strong influence on Swiss law and legal culture. The collection thus mainly offers insights into the reception of developments and trends originating abroad, both in Europe and the United States in the process of Europeanization and Globalization. It is predominant angle in post-World War II developments. It informs a majority of texts.
The selection of texts was a difficult one. Firstly, we have been seeking for seminal texts which have been of lasting impact and influence to legal and political developments. Such texts obviously are not numerous, and impact assessment anyway is subjective. Many of the texts, including our own, serve the purposes of informing the reader on legal developments, emerging ideas and concepts which formed part of the debate at different stages of legal developments and the legal discourse relating to Switzerland. We hope that the collection will assist scholars in all the field of humanities, in particular law, political science and history, to better understand Swiss legal culture with its intricate linkages to European law and strong exposition to international law in a country open to economic globalization while keen to maintain its own identities and culture at the same time.
Yet, our ambition goes beyond this point: the law in Switzerland and in many other countries in Europe is by and large still or again taught and dealt with at Universities and Law Schools in the positivist tradition. Students are exposed to the codes, the statutes and regulations and to case law of the courts. The emphasis mainly and often is on the rules and their impact, and less on underlying motives and where these particular rules come from. Legal history and inquiries into how ideas travel no longer plays the role it once did in explaining the advent of the codes and of modern constitutionalism. Philosophy is relegated and hardly relevant in passing the bar exam. The focus, in these exams, is on positive domestic law and knowledge. Much less attention is paid to the underlying sources and trends which brought about these rules, both of domestic and foreign origin. Much less attention also is paid to the realities of the law, underlying problems and challenges and how these relate to other disciplines, in particular economics, political science and history. Empirical research and linkages to economics and political science are still in their infancy.
Still less attention is paid to international law and even European law as these subjects are considered of a lesser relevance in daily life and practical work. These tenets epitomise the life at Swiss and other European Law Faculties. Students lack access to texts which help them to understand the influence, both domestic and foreign, and which inform the genesis and the life of the law. In particular they often fail to be exposed to the influence of, and on, other legal orders, in particular the impact globalization and Europeanization of domestic law. They fail to be exposed to the influence of international law, in particular international economic law on domestic law, either directly or indirectly. But they also fail to realise the impact of Swiss law on other legal orders, or the impact of these other orders on Swiss law. Yet, all these factors constitute and compose what we call legal culture: the underlying motives, the people and actors, the relevant institutions and how they work in day to day operations. To put it in metaphorical terms, it sails under the flag of the eminent American lawyer Karl Llewellyn: “see it fresh – see it whole – see it how it works”. The specific features of thought and action in legal processes are often dependent at the meta-level on a specific mind-set open to globalization, which applies a motivational position that favours the exploration of the legal process in globalization and a motivational drive inspired by curiosity. “See it fresh” challenges us to see it in an open, undisguised and new way. “See it whole” means we should see it impartially and holistically. “See it as it works” calls on us to understand the functional requirements and operation of the legally relevant social reality in the process of globalization, internationalization and Europeanization of Swiss law. The collection makes a modest attempt to fill this void.
II. Basic Structure
The Anthology is conceived in a manner that allows scholars and students to easily find relevant texts, a concise background and information on the authors. Introductory texts facilitate access and understanding, and summaries are available for the readers not familiar with the full text which is attached, where possible, as a PDF. All the texts are reprinted as original texts including the footnotes and lists of literature, in general “full texts”, in a few exceptions “excerpts”. The internet and the modern data bases offer new possibilities which will revolutionise education and work with materials. It also allows subsequent addendum and expansion of the Anthology. As we go along, new texts will be added with a view to assess the contribution of Swiss law and legal culture, and corresponding foreign influences, in different branches of law. The Anthology attempts to enrich and combine the core of the texts with areas and layers of knowledge accessible and complimentary tools such as additional bibliographical information and detailed biographies of the authors. In order to raise the awareness of and to increase the accessibility dealing with the processes under discussion herein, the Anthology uses various tools to situate the texts found, such as a process adequate table of contents with a specific substructure, a standardized presentation and explanation of the texts with short comments under the headings of introductory chapters offering background and asummary. The Anthology offers non-footnoted general introductions using comparable table of contents. To some extent, these various tools attempt to compensate, and to same extent offset, the lack of coherent and conceptual scholarly analysis of the processes described and used as a driving force of the evolution in particular of the post-World War II period up to today.
The Anthology thus serves non-Swiss as well as Swiss users.. It is not limited to lawyers, the holistic approach proposed and the state-of-the-art-interdisciplinarity advocated should interest persons from other academic disciplines. Various texts are addressed to legislators, judges, legal and government officials as well as practitioners and cater for interests of various legal professions. We hope that they all may develop an interest and benefit from the texts and comments included.
III. The Selection of Texts
The working hypothesis for the Swissness of the selection of the texts in the Anthology can be characterized succinctly as follows: we do not use dogmatic and rigid selection criteria. The majority of the texts deal with Swiss law and legal culture. This means that the texts describe and analyse complimentary processes from different perspectives: the “travelling” from and the “impacts” of Swiss law and legal culture outside of Switzerland, or, as is the case – with in the majority of the texts – the “travelling” to and the “impacts” on Swiss law and legal culture in Switzerland. In the absence of accepted concepts of “culture” in general and “legal culture” in particular and with a curious mind we include some special cases of attribution of Swissness of the texts.
With a few exceptions, the texts were written by Swiss based or related authors. A minority of texts are official documents such as documents of the federal administration, court judgments or expert opinions. Law professors have written the majority of texts in the parts on international law, Europeanization as well as Globalization. A remarkable number in the part of Americanization have been written by practitioners, some of them having or having had double careers in academia and in practice.
IV. Bibliographical references
It is an important function of this Anthology to institute a platform of knowledge for further information and research, and we hope it will find its proper and interested users. The general bibliographical references are an important supplementary element of the Anthology. They convey a platform for further information and research. The texts included in the Anthology are of course footnoted and contain specific lists of literature.
There is no law and legal culture without lawyers. The biographies contained in the Anthology show the backgrounds, educations, professional activities and visions of the authors writing the texts in the collection. The biographies moreover contain a series of contextual elaborations and short descriptions of authors’ further works and when possible, links to websites to allow access to further information about the authors. The biographies are integral to the Anthology’s intended function and have been included as valuable, knowledge-generating tools. The detailed biographies of all the authors are an invaluable source of various aspects of the personalities involved in describing and analysing the processes of Swiss law and legal culture. Every text should be read in conjunction with the respective biography which is readily accessible by a link to the text. The Anthology attempts to apply a certain homogeneity and comparability for all biographies concerned. A number of biographies nowadays – the sources are identified – are Wikipedia based biographies. Some biographies were submitted by the respective author.
VI. Work in Progress
The Anthology is a work in progress. It is the result of a long and tedious search for factual and textual evidences of the contribution to international law and the processes of Americanization, Europeanization and Globalization of that have shaped Swiss law and legal culture. The result is patchy, unsystematic, incoherent and incomplete. At this stage, we have been focusing on the role of Swiss legal culture in the formation of public international law throughout different periods. We focus in particular on developments since World War II which brought about watersheds of changes with the breakdown of nation states and the emergence of European integration and law. We equally focus on the underlying relationship of Swiss and US law and the impact the latter had, often disguised, on Swiss law in recent decades. We focus on the process of globalization and how Switzerland and Swiss law and legal culture have responded to these challenges. We hope to add additional clusters in due course on history of law and comparative law, constitutional law, private and commercial law, penal law and private international law including international arbitration. We hope that the present collection encourages young scholars to take up these topics and join the legal culture club out of which this project emerged. The website offers possibilities for interaction and participation. We hope encouraging others to join in and contribute to the body of texts included in the Anthology in due course.
VII. Supporting Teaching, Research and Interoperability
The Anthology thus is a tool for further work and academic endeavours in teaching and research. It offers the possibility to engage students in discussions on seminal and informational texts underlying and influencing legal developments beyond positive law. It allows for easy access to texts and the sharing of information. Foremost, we hope that it will encourage scholars and practicing lawyers to engage in searching for comparable texts in their respective fields, which could be added to the Anthology as a living project.
In using the Anthology, readers should have an open mind-set. We are dealing with modern methods of knowledge generation and knowledge management. It would be pointless to view and judge the Anthology merely from the perspective of a traditional collection of texts. Using metaphors, the Anthology is a contribution to the weaving of a complex carpet tapestry of cultural encounters and cultural exchanges in law and legal culture. The Anthology situates the texts found as objects trouvées in their broader context from a dynamic and evolutionary perspective in particular in dealing with the emerging new world order after World War II. The Anthology thus attempts to increase the awareness and the accessibility of legal and cultural knowledge and caters to a variety of potential uses common and state of the art to modern knowledge generation and knowledge management.
The Anthology has in mind the idea and vision of a college of internationally-minded lawyers and their networking potential. The Anthology may assist in bringing about comparability of different legal orders and common backgrounds, assessing differences and commonalities in legal cultures. It may provide insights, to some extent, into the competitiveness of different legal orders and cultures and how they interface and fare. The recent Swiss experiences made in interacting with US law in the context of financial services demonstrate the need for an enhanced and better understanding of different legal cultures. These experiences show that it is important to look beyond the letter of the law in order to anticipate and assess the potential impact of foreign law. The Anthology may thus make a contribution to a better understanding of the underpinnings of the Swiss legal culture and thus to the interoperability of Swiss law with other legal orders. This is important both in practical terms as well as from an academic point of view.
In conclusion, the Anthology is intended to be a starting platform of knowledge as a particular mis-en-scène of the legal dimensions of the historic process. It is meant to contribute to access, open up and to establish a Denkraum” (Aby Warburg) for further academic and practical legal work. The Anthology does not pretend to present a theory or a theoretical framework of structured sets of information. It is a mere organized aggregation of information and has the simple and primary function of a tool facilitating further observations and analysis of the topics and therefore is situated in the toolboxes of “skills.” It does not claim to belong to the traditional positivist legal scholarship which tends to ignore the relevance of public international law and obviously missed some – if not many – of the boats in the early – and timely – observation and analysis of upcoming dramatic and far-reaching changes of the legal processes of internationalization and globalization in Switzerland.