Walther Hug, Hundert Jahre schweizerisches Wirtschaftsrecht, in: Hug (Hrsg.), Ausgewählte Abhandlungen zum Arbeits- und Wirtschaftsrecht, Band II, Beiträge zum Wirtschaftsrecht, Bern 1978, p.81-100.
Hug Walther – Hundert Jahre schweizerisches Wirtschaftsrecht
Summary
In this essay, Prof. Dr. Walther Hug provides a short overview of the background and the development of economic law in Switzerland. The time-frame of one hundred years starts in 1848 with the first Swiss Federal Constitution and is divided into three major parts.
The focus of this text is placed on the historical events that have affected the legal system and, hence, also had an impact on the economic order.
The first period commences in 1848 with the enactment of the first Swiss Federal Constitution. The unification of Switzerland as an economic area is a focal point. Inter-cantonal customs duties are abolished and the freedom of establishment for Swiss citizens is granted. However, the Federal Constitution refrains from protecting private property and the freedom of trade. The Cantons therefore remain independent in developing an economic order. Nevertheless, during this time period, most of the larger cantons introduce the principle of freedom of trade in their cantonal constitutions.
The first period ends in 1874 with a complete revision of the Federal Constitution. The development of economic freedom in the Cantons allows for the implementation of the principle of freedom of trade in the new federal constitution (art. 64 in the former Swiss Federal Constitution). In accordance with this constitutional article, the Swiss Code of Obligations was remitted in 1881. It contained principles such as the free economic transaction, freedom of contract (or freedom of the economic association). The Swiss Civil Code of 10 December 1907 is considered as a monument of the Swiss freedom and as “the masterpiece of Swiss democracy in the work of legislation in the last hundred years”. It contains the general and equal legal capacity of every human being, the capacity to contract for everyone who satisfies the individual requirements, the recognition of personality rights, the freedom of property rights, etc.
With the beginning of World War I in 1914, the third period begins. Due to the war, economic freedom is severely restricted. With the outbreak of the Great Depression, which followed the war, the federal government is once again forced to intervene in the economy. The outbreak of World War II then leads to the strongest restriction on the freedom of trade thus far. The restraint of the public economic freedom through economic policy rules is more distinct than the limitations of the private economic area. However, the economic policy regulations have private legal backlashes.
Prof. Hug completes this essay with a brief outlook into the future:
“The concept of solidarity shall not obscure the principle of freedom. Economic freedom, on a public law basis, as well as in its private law form, is, like other freedoms, an indispensable component of any Swiss legal system.” (p. 100).”