Margrith Bigler-Eggenberger, Die erste Richterin am Bundesgericht: Allein unter Richtern, in: Revital Ludewig/Kathleen Weislehner/Evelyne Angehrn (Hrsg.), Zwischen Recht und Gerechtigkeit, Richterinnen im Spiegel der Zeit, 2007, pp. 1-21
Margrith Bigler-Eggenberger – Die erste Richterin am Bundesgericht
Background
Margrith Bigler-Eggenberger was born on 14 March 1933 in Henau (today Uzwil), Canton of St. Gallen. After reading law in Geneva and Zurich she received her doctorate in 1959 in Zurich with a dissertation on criminal law, the sociological orientation of which demonstrated the importance of societal realities in her views regarding the law already at that age. In 1961 she was admitted to the St. Gallen bar (which required granting of an exception, as she had lost her St. Gallen citizenship through marriage, having a shared place of residence with her husband in the Canton of Bern). She then worked as an attorney and court clerk. From 1966 she taught social security law at the University of St. Gallen (at that time called the Handelshochschule or ‘School of Commerce’) and submitted proposals for family law amendments to Swiss Civil Code. Also in 1966, the Government Council of the Canton of St. Gallen appointed her as Social Security Court justice in connection with the reorganization of the canton’s social security court. A normal appointment procedure was not possible in St. Gallen due to lacking women’s voting and election rights. In its Quinche ruling of 1957 (BGE 83 I 177) the Federal Supreme Court had rejected the inclusion of women in the electoral register without the existence of a corresponding constitutional basis (see Part II. E. 4.). From 1969 she was a member of the Federal AHV/IV Commission for old-age, survivors and disability pensions, and in 1972 she was elected to the Parliament of the Canton of St. Gallen. Following the introduction of voting and election rights for women in federal matters in 1971, Margrith Bigler was appointed as the first female alternate justice on the Federal Supreme Court in 1972, and then as the first regular female justice in 1974. During her term as federal justice and after her resignation in 1994 she was a prolific writer on social security, family law and gender equality. At that time the constitution and laws were being amended to reflect gender equality, an outcome to which Margrith Bigler-Eggenberger’s writings contributed in substantial fashion. She reported frequently on her experiences and the difficulties she faced in dealing with some of her colleagues as the first– and for ten years the only – female federal justice. Her colleagues were unaccustomed to working with a female fellow on equal terms. In 1994 she received an honorary doctorate from the University of St. Gallen, and also from the University of Fribourg in 2003.
https://hls-dhs-dss.ch/de/articles/032482/2002-10-17/; swisscovery – margrith bigler-eggenberger (slsp.ch); https://de.m.wikipedia.org/wiki/Margrith_Bigler-Eggenberger)
Summary
Margrith Bigler-Eggenberger starts by stating that women are still in the minority in higher-level and top-level positions today, i.e. at the time of publication of the essay in 2007, either due to lacking acceptance or because women themselves lack confidence. The focus then moves to the observation that women very late were allowed to join the bench in Switzerland. Women had only been allowed to attend university in Switzerland since 1861. The Federal Supreme Court’s Röder decision (BGE 49 I 14) meant that women could join the bar in all cantons as of 1923, and in some cantons and at federal level they were allowed to work as court clerks and administrative staff. However, they lost their civil servant status or even had to give up their jobs if they were to marry. Women’s voting and election rights, including the right to be appointed as a judge, were first introduced in some cantons in 1959, and in the Confederation in 1971. The last canton only followed in 1990 pursuant to a Federal Supreme Court ruling (BGE 116 Ia 359). The author describes how female appointees encountered prejudice in the early years after they were first allowed to work. They were taken less seriously than their male colleagues. Undeterred, she decided to stand for a Federal Supreme Court appointment once the Confederation had introduced female suffrage, having become fascinated with the court’s activities while employed as a court clerk and later holding a judgeship on the Social Security Court of the canton of St. Gallen. She developed a love for working intensively with the law and legal theory. Despite the predictable personal and organizational difficulties experienced, she insisted on taking advantage of the opportunity now opened up by the Constitution. With some background noise, she was appointed as an alternate justice in 1972 and as the first regular female federal justice in 1974, which, while cause for celebration, also earned her rejection both outside and within the court. It would take seventeen years before a second female federal judge would be appointed. It was the experience of the first female federal judge that women contribute a distinct tone and empathy through their differing socialization and life experience and their perspective on everyday life. By way of example and the visibility of their position, they afford women seeking justice a certain encouragement to file lawsuits. She remained true to this attitude throughout her career as a federal justice. The question of whether female judges are superior at administering justice is one best not asked. However, the author believes that it is only proper for women to be treated as equally competent as full-fledged justices of the highest court in the land. In conclusion, the author points out progressive rulings handed down during her term of office as federal justice which changed the law for the better.