The Federal Supreme Court is the supreme judicial authority of Switzerland. It has been shaped by Swiss legal culture, and it shapes Swiss legal culture and jurisprudence throughout the country. This entry to the Anthology of Swiss legal culture examines this process and interaction in its international context on the basis of relevant texts. For a country located in the heart of Europe, which has always maintained extensive cultural and economic relations with neighbouring countries, it would be surprising to see that its legal system had developed in splendid isolation. Rather, it would seem to form part of transeuropean and international developments. This raises the following questions: To what extent is Swiss legal culture genuinely Swiss as expressed in the case law of the Federal Supreme Court ? And to what extent has jurisprudence been shaped by way of interaction with foreign and international thinking and influence? What do relevant texts from academia and practice have to say on such interaction?
Before going into details, the thematic scope of the work should be defined: It will not be limited to jurisprudence and the case law, but entails a discussion of the constitutional powers of the Federal Supreme Court, as this equally reflects important aspects of Swiss legal culture. A certain degree of selectivity will be required in regard of legal subject matter covered. Otherwise, practically all Swiss law would have to be covered as the Federal Supreme Court has jurisdiction over practically all legal matters. In this respect, reference can be made without further ado to the parts of the anthology, as they equally contain texts on the case law of the Federal Supreme Court pertaining to the respective legal subject, including international and European law. Under the heading of jurisprudence, discussions are limited to interdisciplinary issues, not specifically allocated to a particular area and foremost focus on the impact of foreign and international law. Finally, there are cross-references between Part I on the Federal Supreme Court as an institution and Part II on jurisprudence: It goes without saying that the Federal Supreme Court must respect the constitutional and legal framework within which it operates. However, by respecting this framework, the Court also applies and interprets it and thus determines the scope of its powers.
The creation of the Federal Supreme Court and the structuring of its powers in the context of the foundation of the Swiss Confederation in the middle of the 19th century was based both on conditions in the Cantons and the early Confederation and on the influence of foreign development and legal thinking. The elements which characterise the Swiss Confederation then and now, and which to some extent distinguish it from other countries and establish its identity – the combination of direct and representative democracy, higher weight given to democratic elements than to the rule of law, federalism, multilingualism – also characterise the identity and position of the Federal Supreme Court. The first chapter of Part 1 entitled Role of the Federal Supreme Court in the Federation is dedicated to this topic. The “Neuere schweizerische Verfassungsgeschichte – ihre Grundlinien in Bund und Kantonen seit 1848” (Modern Swiss Constitutional History – its baselines in the Confederation and the Cantons since 1848) authored by the eminent and late Zurich constitutional lawyer Alfred Kölz, published in 2004, is a true treasure on the topic. On the basis of legal-historical research on the cantons before the founding of the federal state, and on the influence of France and the US on the formation and development of the Swiss federal state, Kölz paints a differentiated and coherent picture of the relationship between the Federal Supreme Court and the other federal powers and the Cantons. The position of the Federal Supreme Court will be examined in greater detail on the basis of other texts from former and more recent times.
The second chapter, Organization of the Federal Supreme Court, deals with aspects of the internal working of the Federal Supreme Court that are characteristic for Swiss legal culture: the fact that the Federal Supreme Court is the only supreme court in the country, operating as a court of appeals for last instance rulings by courts and authorities of the Cantons and the Federal Government. At the same time, it works as a Constitutional Court albeit with limited powers of review. Typical of Swiss legal culture is also the multilingualism of the Federal Supreme Court, using German, French and Italian as equally authoritative languages and its – different from other states with several official languages – form in the Federal Supreme Court, which also influences the jurisprudence of the court. Finally, the chapter also looks into personal exchanges between the Federal Supreme Court and foreign judges.
Unlike in many other countries, the judges of the Federal Supreme Court are hardly known to the Swiss public. They deliberately work as a college. Nevertheless, the third chapter Federal Judges seeks to offer a portrait and characterization. Typical for Swiss legal culture (and often criticized) is the way in which members of the Federal Supreme Court are elected and re-elected by parliament and the role and influence of political parties in this process. Following texts on the judges of the Federal Supreme Court over time, a number of federal judges are presented in person on the basis of texts written by them.
In Part II on jurisprudence and case law of the Federal Supreme Court, the emphasis is placed on the elements which foremost shape Swiss legal culture and which deploy a defining influence on all legal matters: the decision-making powers of Parliament, partially restricted constitutional review by the Federal Supreme Court, the recognition of unwritten fundamental rights in case law, judicial restraint and respect for the prerogatives of cantonal powers in the Federal appeals procedure, and finally, the pragmatic, pluralistic method of legal interpretation applied in legal practice.
The second focal point is the significance of foreign and international law in the case law of the Federal Supreme Court, starting with comparative law as a method of interpretation, via the caveat of ordre public all the way to the penetration of national law by international and European law. For details, please refer to the other parts of the anthology. There are cross-references between the two focal points of Part II, since questions of methodology also arise in the interpretation of international and European law and the primacy of internationally guaranteed human rights under the European Convention for the Protection of Human Rights and UN instruments effectively leads to an extension of constitutional review of federal legislation.
The anthology focuses, as its name suggests, on the texts selected. Quantitatively, the following composition emerges: 31 academic texts (including 5 from the Modern Swiss Constitutional History by Kölz), 14 Federal Supreme Court rulings, 2 explanatory notes on draft laws by the Federal Council, 2 reports by the Federal Administration, 1 parliamentary report, 1 annual report of the Federal Supreme Court, 1 country report of the Federal Supreme Court for an international conference and 1 report of the Council of Europe. 13 of the academic texts were written by federal judges and staff of the Federal Supreme Court. While most of the texts are academic, the description of the background of the texts is deliberately left without footnotes. Anyone who would like to delve deeper into the matter should start with the Federal Constitution and the Swiss Federal Supreme Court Act and then proceed to the comments and textbooks on constitutional and procedural law.
The text was originally written in German and subsequently translated into English.