Hans Peter Walter, Der Methodenpluralismus des Bundesgerichts bei der Gesetzesauslegung, recht 1999, pp. 157 – 166
Hans Peter Walter – Der Methodenpluralismus des Bundesgerichts
Background
A fundamental jurisprudential question addresses the methology to be applied in interpreting and applying the law to a particular case. Pursuant to Article 5 paragraph 1 of the Federal Constitution, the rule of law forms the foundation and sets the limits of national law. Article 1 of Swiss Civil Code (ZGB) sets out in detail on how the law is to be applied by the courts, providing that the law applies to all legal matters to which it pertains, either explicitly in its wording or implicitly by way of interpretation. Where the courts perceive a loophole in the law, the courts may decide on the basis of customary law applying the rules which legislators would apply, observing established theory and traditions. While not regulated at the constitutional level, this principle originally developed for civil law guides Federal Supreme Court decisions in all matters of law, private and public, constitutional or administrative. The principle of “nulla poena sine lege” in criminal law and the requirement of a formal legal basis in tax law impose certain limitations to this general principle of Swiss law.
The primary source of law therefore is legislation enacted by legislators, including the Constitution, or the executive branch. Rather than the letter of the law, the interpretation of the law is applied regarding the legal meaning. Article 1 of Civil Code does not prescribe how or according to what method interpretation has to take place. This is left to the instances applying the law, including particularly the Federal Supreme Court. The Federal Supreme Court applies several methods as part of a pluralist approach which is variously described, basing ultimately on the interpretational canon of Savigny. The grammatical method is a method for determining the meaning of a legal provision based on its wording. Legal texts in the three official languages of Switzerland – German, French, Italian – are of equal importance. Where the wording is unclear, the other methods are used in any case. If the wording is clear, the case law is inconsistent. The systematic method is based on the idea of the unity of a legal system, aimed at determining the meaning of a legal norm in the context of all other norms of the system. Of particular importance here is avoiding conflicts with superseding law, which is why the concept is employed in seeking conformity with constitutional or international law. The historical or origin-historical method takes into account preparatory work for the creation of law and the circumstances at that time, especially if the meaning of a more recent law is to be determined. Lastly, the aim of teleological interpretation is to pursue the same purpose which legislators pursued in enacting a given law. The Federal Supreme Court takes other elements of interpretation into account at times, such as comparative law (for a more detailed discussion see Part II F. 2.), feasibility considerations, economic considerations and the advance impact of legislative projects.
If interpretation leads to the conclusion that a provision applicable to a specific given case under review is lacking, Article 1 of Civil Code regulates filling of the gap. However, a lacuna requiring filling is only deemed to exist if legislators failed to implement a provision which should have been enacted. An applicable provision which is objectively unsatisfactory in the view of the court does not constitute a lacuna required to be filled.
In comparison with other legal systems, the provision of Article 1 of the Swiss Civil Code was revolutionary and new at the time. It was intended to overcome the idea of a complete system of law current when the Swiss Civil Code (ZGB) was enacted in 1907. Even today, not all countries have such provisions in place governing the method of legal interpretation. In an international comparison, the comprehensive and fundamental Swiss rule in place is considered a wise and successful solution (Zurich Commentary ZGB 1. Volume 3, 3rd edition, Introduction to Articles 1 and 4 N 264). As far as can be seen, the Federal Supreme Court does not refer to the methods of interpretation and gap filling applied by foreign courts in its comments regarding the methods of interpretation. What is particular to Switzerland in any case is the authoritative wording of the law in the three official languages, and such wording being by no means exactly congruent at all times.
The Federal Supreme Court’s pragmatic methodological pluralism has met some criticism by legal scholars. The Federal Supreme Court does not assign priority to any one method of interpretation, instead weighting the elements in view of the facts in the matter under review. Interpretation is thus not an act of rational deduction, as it involves an element of intention. The author of the essay cited below – a former federal judge who was later professor of civil law at the University of Bern -, addresses the criticisms voiced, outlining how the Swiss courts have always claimed greater legal freedom than the courts of other countries, as reflected in Article 1 of the Swiss Civil Code, discussed above.
Summary
The author begins by quoting a passage from Montesquieu’s “De l’esprit des lois”, published in France in 1748, according to which judges merely represent the mouthpiece of the law, the power and rigueur of which they cannot change. Of the three powers of state, the judiciary, it was argued, has practically no influence. The author explains how the times changed so that judges no longer see themselves as subsumption machines but rather as co-designers of the developing body of law. The Federal Supreme Court has two objectives: to correctly rule on individual cases and to realize and shape the law generally. It was in this context that the Court’s pluralism of methods emerged. This does not mean an uncritical application and merging of different legal methods however the wind may be currently blowing (methodological syncretism). Since the 1950s, the Federal Supreme Court has given priority to the method that best reveals the true meaning of the legal norm concerned in the individual case at hand. Opponents at that time and more recently have criticized that taking this view, the choice of method is left at the judges’ discretion, so the method in fact is no method at all. On the other hand, legal scholars asked the fundamental question as to whether the Federal Supreme Court necessarily had to adopt this flexible, pragmatic approach regarding methodologies to properly discharge its duties. The author sets out three preliminary observations before engaging in a methodological analysis of the formulation used by the Federal Supreme Court to describe its methodological pluralism: Arguments in favour of a pluralism of methods include the differing views of the court justices appointed via a democratic concordance system and the fact of changing majorities, especially because there is no mandatory requirement of observing precedent, as under Anglo-American law. In the French tradition a distinction is made between the abstract “interprétation doctrinale”, according to which opinions and scholarly views are cited merely to illustrate theoretical considerations, and the “interprétation judiciaire”, which pertains to the facts of the case to be decided. In fact, the Court cannot escape the fact of diversity of cases, which gives rise to questions of interpretation, without exposing itself to accusations of denial of justice. Courts hesitate to adopt one fixed method of interpretation because doing so could force a particular solution to be found in a subsequent matter that is not appropriate given the circumstances of the case. Lastly, the expectations of the parties filing a suit have changed. Rather than being guided by vague ideals, they prefer conflict resolution mechanisms that avoid litigation and are clearly economical. The focus of the method problem thus shifts from the substance of the case to procedure. Referring to earlier authors, Walter shows that the various methods do not exist in opposition to each other but rather are complementary, facilitating understanding of the other respective methods. “The intention to regulate is the starting point or source of interpretation, and the aim of the interpretation is projecting this intention onto a legal norm which is at best insufficiently manifest or has changed.” Interpretation is unproblematic as long as the elements lead to the same result of interpretation. Otherwise, the question of preference arises. The methods utilized vary: around weighing up elements in a specific individual case versus a general hierarchization of the elements. Walter describes how the Federal Supreme Court uses these two methods in combination as follows: “The starting point is recognition that multiple elements of interpretation regularly lend themselves to arriving at a decision, and that these cannot be understood and organized on the basis of a basic, core idea. To determine the authoritative legal meaning of a legal norm – so as to avoid the problems of jurisprudence of equity – these elements first have to be grouped, weighted and juxtaposed as appropriate. It must then be taken into account that the elements to be considered are themselves qualitatively gradable, i.e. they may be more or less important in deciding a specific legal question. (…) Depending on the case, strong and weak elements are to be separated out, and only their combination by number and strength allows them to be properly weighted in relation to each other. However, if this still yields opposing equilibria, ranks assigned based on legal theory or logical-systematic considerations deserve priority over other volitive considerations. The Federal Supreme Court endeavours to proceed in this fashion, and thus the ungracious criticism of it being a self-service shop is suddenly disarmed as the system is transformed into a respectable one along the lines discussed by Walter Wilburg.” The author illustrates the “flexibility afforded by the Federal Supreme Court’s pluralism of methods” by citing a ruling on gender equality: Back in 1887 women were denied access to the legal profession, which was reserved for citizens with voting rights, but in 1923 the Federal Supreme Court considered this practice to be in violation of the principle of equality. In 1957, the Federal Supreme Court denied the women of one canton the right to vote and stand for election, but in 1990 it allowed women (of another canton) to vote. The author believes that the Swiss courts have traditionally claimed more legal freedoms than foreign courts (e.g. Germany) which are subject to strict separation of powers that prohibits further development of the law by judges. However, it is now widely recognized that the law does not exist as a closed system. Debate centres on the relationship between deciding law on a deductive (and thus cognitive) versus a evaluational (and thus volitical) basis. The purpose of judicial application of the law is seen as ensuring that decisions are based on the best possible reasoning. Parties affected by decisions should be able to recognize “that they were not arbitrarily pronounced but rather were arrived at through rational argumentation and practical reasoning”. The rational element should therefore be strengthened and the political element “limited to the unavoidable rest”. The reasoning should make the law comprehensible and the judgement based on it transparent and verifiable; it should not prescribe methodological adherence. Citing various examples, the author shows how the Federal Supreme Court’s described pluralism of methods meets with fundamental approval in legal theory.