Michele Luminati, Die Gesichter der Justiz – Das schweizerische Bundesgericht als Gegenstand interdisziplinärer Forschung, in: Paolo Becchi/Christoph Beat Graber/Michele Luminati (eds.), Interdisziplinäre Wege in der juristischen Grundlagenforschung, Luzerner Beiträge zur Rechtswissenschaft, 2007, pp. 183-213 (excerpt: pp. 196 – 205)
Michele Luminati – Gesichter der Justiz
Background
The author of the text cited below was head of a research project entitled “The Judicial History of the Swiss Federation (19th – 20th centuries)” which drew upon data on federal judges going back to the formation of the modern Confederation. It is remarkable and should be noted upfront that very few of these judges have any degree of public notoriety, even in the legal field. In the US, the appointment of Supreme Court justices is a political issue of the first order, as their opinions and influence on the laws of the land are publicly known and intensively discussed. In Switzerland federal judges are scarcely known as individuals outside the court. For what counts is the institution of the Federal Supreme Court, rather than individual judges. There are several reasons for this. First of all, the traditional difference between Continental European civil law and Anglo-American common law. In common law or case law, judicial precedent is a primary source of law for deciding individual cases, whereas in civil law the prime source has been the written statute. The scope of the constitutional jurisdiction is another difference: While the US Supreme Court has full powers of judicial review including federal law, the Swiss Federal Supreme Court, for reasons discussed, has no powers to review federal statutes enacted by Parliament. This difference does not exist in relation to cantonal law, and constitutional conflicts raise considerable interests in both systems. Having responsibility for deciding conflicts between constitutional and legislative authorities generates interest among the politically motivated public. This interest is less pronounced with regard to ordinary courts, which fall within the jurisdiction of the Swiss Federal Supreme Court, but not of the US Supreme Court. In Switzerland, the legal tradition of understatement of judges is oriented around the institution rather than around individual judges, and apart from the President of the Federal Supreme Court, justices generally exercise great restraint with regard to only commenting publicly. Little is known outside the Court about the influence of individual judges on the pronouncement of rulings. Rulings are handed down after public deliberation if a judge involved in the case so requests, or if the decision is not unanimous. However, the vast majority of decisions are ultimately passed unanimously, and thus typically without public deliberation. In public deliberations, judges express their opinions, but individual judges have not normally been named in media reporting. Dissenting or concurring opinions on the written memorandum of the reasoned judgement (of the majority) are not published. Judges may acquire a certain reputation among the interested public, but the legal community and the public are concerned with rulings, not the opinions of individual judges (excepting in particular the punishing of individual judges up for re-appointment as mentioned in Part I C. 1.1 and 1.2) The ways in which the five judges whose bios are presented in Part I C. 3 have influenced Court decisions are not known in detail. The legal theory works written by some but by no means all federal judges are taken note of in legal circles. Court management typically will not approve of outside employment other than the judicial appointment.
Summary
Drawing on the biographical database of the 262 federal judges serving in the period 1848 – 2006, the author identifies types of judges and informal criteria relevant for judicial appointments. The author also localizes the individual judges within the legal field along a spectrum of the theoretical versus the practical and observes the changing weightings of these two groups on the Federal Supreme Court.
On the basis of the first Federal Constitution of 1848, a non-permanent federal court existed which had criminal and civil law jurisdiction, but no constitutional jurisdiction. The majority of the eleven part-time judges appointed by the Federal Assembly for a three-year term of office were simultaneously members of Parliament and remained so during their judicial term of office. All of these individuals had studied law or practised as a lawyer or judge (which did not require a law degree). Their profiles shared a sharply political dimension. Their appointments were political and involved multiple rounds of voting. For most of them, the office of judge did not represent the high point of their careers. Six of them later became Federal Councillors. According to the author, the judges’ origins as members of the political elite strengthened the autonomy of the Federal Supreme Court despite the lack of a separation of powers. A “constant osmosis of personnel” avoided institutional conflicts. In contrast to a strictly hierarchical judiciary of civil servants, they were not subject to career pressure or ministerial supervision, and were therefore less susceptible to influencing, which had implications regarding the pronouncing of judgements.
The amended Constitution of 1874 created a permanent Federal Supreme Court of nine federal judges appointed by the Federal Assembly for a six-year term of office. Judges were not allowed to simultaneously be members of the Federal Assembly. Their responsibilities now extended to reviewing constitutional appeals against decisions of cantonal authorities. The sphere of competency and the number of judges were continuously expanded in connection with the creation of national codifications. Then in 1917 the Federal Insurance Court was created as the highest social security court. At the same time, the profile of appointed judges changed, as “political” judges decreased in number after 1900. The last judges of this type were appointed to the Federal Supreme Court in the 1960s, and to the Federal Insurance Court in the 1970s. Those appointed later came mainly from cantonal courts, and some had been clerks of the Federal Supreme Court. Lawyers comprised 20% – in French and Italian-speaking Switzerland 50% – while 10% were former university professors. Few had backgrounds in the administration. Dynastic tendencies became increasingly rare.