Gregory A. Fossedal, Direct Democracy in Switzerland, 2002.

7
Judiciary

"The judiciary in Switzerland," writes James Bryce, "is a less important part of the machinery of federal government than it is in the United States or in the Australian Commonwealth, and may therefore be briefly dealt with." 1

This is certainly true in literal terms. The Swiss constitution grants the judiciary few powers, and these have not been expanded -- neither by chance nor by legal cunning.

Yet the same initial observation might be made about the federal judiciary in Germany, France, or the United States. Their stated powers are few; their constitutional role, limited; their dependence upon the other branches of government, almost total. In these other cases, however, the role of judges and of the federal judges in particular have grown substantially since the foundation of those republics.

In Switzerland, by contrast, some combination of causes has rendered the judiciary restrained not only on paper, but in practice; the Swiss high court is limited not only in de jure, but in de facto terms. It is therefore worth some attention in its own right, and a useful tool for understanding the "machinery of government."

Housed in a comfortable but nonpalatial set of offices in Lausanne -- the Swiss emphasis on keeping the government divided and diversified -- the Swiss Supreme Court operates like few other federal appeals courts in the world. The Swiss allowed me to visit during public hours and even use the law library for research. There was the usual lack of fuss, fanfare, and bureaucracy: No metal detectors, no demand for i.d. papers. Both the chief of staff for the president of the court and two of the justices came through the library or cafeteria during my afternoon in Lausanne, and were happy to strike up a conversation about comparative legal systems. This air of informality in the halls of government is all the more striking in Switzerland because of the greater formality of the Swiss in general compared to Americans and even, in recent years, many Britons. The justices come and go with no formal robes and do not even appear to wear them in many Swiss courts, although there was no opportunity for me to see the federal court in session.

At a lounge up the street with a TV set, several Swiss lawyers -- they did not seem to be professional staff or justices from the court, but in Switzerland, it is hard to tell -- occasionally would gather to watch portions of the U.S. impeachment hearings. During one of the down times, a commentator began to discuss the elaborate robe tailored for the occasion for Justice Rhenquist. The Swiss thought it was mildly ridiculous but, perhaps out of deference to the obvious American nearby, did not go on about it for very long.

The Swiss federal court matches this spirit in its operations. There are thirty-nine justices on the federal court, another thirty-nine alternates and extraordinary alternates, and eighteen justices and alternates at the federal insurance court. The federal court is further broken down into nine divisions with particular specialties: there is a court for hearing criminal appeals, a court for disputes between the cantons, and others. The court as a whole handles about 4,000 cases per year. Justices are not given to long speeches or written opinions. "The parliament and ultimately the people write the laws and the constitution," a staff member who works with justice Nordmann-Zimmerman told me, "which frees our justices to decide particular cases. There is not a need for detailed instructions from our court on constitutional issues; Switzerland is a democracy."

By way of an overview, Table 7.1 compares some of the salient features of the Swiss judiciary with those of several other countries.

The combination of a large number of justices and the division of cases by type, as well as the limited powers of the court, have the effect of rendering it far less ambitious than many other federal courts. There is no striving upward, little calculation as to how to make great pronouncements or innovations in the law. The Swiss federal court is about deciding cases. This, in turn, has an impact on what sort of person seeks nomination to the federal court. It is certainly not coveted by the most brilliant attorneys as a kind of cap to their careers or an opportunity to make history.

Some of the persons nominated to the court, in fact, are not even attorneys but members of parliament, businessmen, and other professionals. It is not that these nonlawyers predominate; they constitute normally six to ten of the thirty-five to thirty-nine justices (much of the time, several seats are vacant). Their presence, however, has a leavening effect on the court, and the mere fact that there are some is a reminder to the attorneys who predominate that the law is meant to serve people from different walks of life. Ideas and concepts from outside the legal profession are able to make a regular entry, and thus help a little bit to prevent the high court from becoming an aloof oligarchy trapped in certain legal orthodoxies.

The sheer number of justices, as well, helps reinforce the idea of public service and, if you will, judicial humility. A body of some sixty persons, with more frequent turnover, does not develop into the same sort of cozy clique as a body of a dozen or so persons typically serving thirty years or more on the bench. (Although it is rare for the justices to be rejected in seeking a reappointment, it does happen. As well, it happens frequently that a justice will stand down after two or three terms. The position does not carry the almost lord-like prestige of a position in other supreme courts, and the pay is at the same low level the Swiss extend to all public servants.)

The spirit of this supreme court was summed up for me by a Swiss attorney, Dr. iur. Wilhelm Boner, who studied comparative law at Tulane University in the U.S. before returning to his native canton of Aargau to practice law. Asked to review some of the more famous or important Swiss supreme court decisions, Boner said, "It is possible to name some, but it would be misleading if you mean 'great cases' in the sense of Marbury vs. Madison or DredScott. Our federal court does not exist to produce those sort of rulings, but to settle individual cases."

Likewise, the Swiss judges are denied the lifetime tenure that is accorded supreme court justices in most other developed democracies. They are not, however, subject to frequent partisan campaigns or bitter denunciation. In fact, by virtue of the number of court members, and the fact that they are not nominated for life, the nomination debates tend to be far more civilized than those commonly seen in the United States or Great Britain. Nor are the justices "lobbied" or pressured during their early years as they pursue reelection. Reelection is more or less assumed for good behavior; it is extremely likely. It is not, however, automatic. More than 95 percent of the justices who seek reappointment after six years receive it. But that 5 percent possibility is all that is needed to concentrate the mind of the justices. And the fact that most justices receive reelection does not alter the fact that they must periodically receive it.

The result is a judiciary much more attuned to the attitudes and wisdom, but also the whims, of the people. In other countries this might have proven a dangerous mix. In Switzerland it has not, both because of the limited powers of the judiciary and the relative conservatism -- in the sense of having an aversion to radical innovations -- of the Swiss people.

The most important difference between the Swiss high court and others, however, is its want of the power, common in Western countries, to void federal laws on constitutional grounds. As Bryce writes,

The Swiss Tribunal cannot declare any Federal law or part of a law to be invalid as infringing some provision of the Federal Constitution....This principle does not commend itself to American lawyers.

This power has evolved in some countries, such as the U.S., where it was not specifically enumerated in the constitution. More recent constitutions have often tended to grant the authority explicitly, and some (such as Russia) even provide for a kind of judiciary veto -- the opportunity to pass on the constitutionality of statues before there is an actual case in controversy, or even before the laws have taken effect. Why is it that in Switzerland the justices of the federal court have been so restrained?

Swiss federalism is a partial answer, but not satisfactory. Other countries enjoy various degrees of federalism, but regardless, have found irresistible the march of legal authorities to judicial constitutional review. Federalism can cut both ways, moreover. In the United States, judicial review was established in Marbury in what on the surface was an act of judicial restraint. The Dred Scott decision enforcing slave-holder rights even in nonslave states was put forward -- whether fairly or not -- as a matter of states' rights.

The culture of republicanism -- the ethic of keeping powers small, ambitions in check -- likewise is a part of the answer, but seems unsatisfying. Chance or necessity normally puts someone in a position to expand the powers of an office or institution, and human nature being what it is, some occupant eventually embraces the opportunity. As well, this consideration too often makes it necessary for the judiciary to exert power on its own, in order to block a greater accumulation or abuse of power by another. If the Supreme Court of the United States has acted with a heavy hand in matters such as Dred Scott, it has also blocked abuses of powers by Presidents Richard Nixon, William Clinton, and others, and been a bulwark for defending individual rights of all sorts against federal intrusions.

Another partial explanation can be seen if we look at the Swiss legal system from the bottom up. It is essentially a cantonal affair -- recall that the twenty-three cantons each set their own rules for both civil and criminal procedure. Although there is increasing harmonization, there are limits to this, and the legal culture is still based on law firms doing the bulk of their business by canton or on a canton-by-canton basis. As well, Switzerland has a number of provisions that discourage professionals from thinking of legal practice as a way to amass great wealth or fame. There is a loser-pays provision for lawsuits: If Smith brings an action against Jones, and Smith loses the case, he not only does not receive judgment, but must pay Jones's reasonable attorney's fees. This discourages attorneys from rolling the dice and filing numerous lawsuits for large amounts on the hopes of cashing in on one or two big awards. It also toughens the attitude of defendants in such lawsuits; they know that if they can persuade the judge they have committed no grave harm to the opposing party, their costs in having to prove this will be partially covered.

As well, the Swiss mindset of Willensnation, its position as a potential gatekeeper, plays a role. The Swiss know that their position depends on providing the services of an honest broker if they are to be a trading, transportation, and communications hub. If its Swiss legal system were a capricious thing, given to change-at the whim of judges or manipulation by highly skilled attorneys, Switzerland would be like a vending machine center which can't reliably offer change. Angry customers would turn away, or even kick the machines, and business would decline. All nations, of course, pay these costs when their legal system is unwieldy or their currency unstable, or any of several other vagaries. The Swiss, however, being so small, so strategically located, and so dependent on foreign trade, are acutely aware of these tradeoffs. This has helped restrain them in all manner of behavior.

To understand why the federal courts have almost no authority to void federal law and only limited authority to void cantonal statutes, it is helpful to remember who may: the people. This right to review laws, and change the constitution itself, is in use continuously throughout Switzerland. Thus the concept that a particular body would be necessary to protect the constitution is somewhat alien. To do so would be to protect the people from the people, the constitution from its authors. Of course, Swiss professionals engaged in international business, especially those familiar with the United States, understand the concept of judicial review as practiced here and in some European countries. Even for them, though, the notion is regarded as somewhat confused -- and troublesome. For working-class Swiss, one must explain the doctrine many times to get it across, and even then one has the feeling that the concept is regarded as somewhat antidemocratic.

In the United States, there is much debate among legal scholars about what the "original intent of the framers" was regarding this or that clause -- or even, whether this matter has relevance. In Switzerland, to a much greater extent, the "framers" are still alive and they are not a particular group of men, but all the citizens. There is no need to perform highly speculative debates about what they meant; and if an error is made, it is easily corrected by those same authors themselves.

A more positive way of putting this is to say that Switzerland has a Supreme Court for constitutional review -- but it is the voters.


Note

1. This chapter is concerned wholly with the Swiss federal court, its functioning, and especially its constitutional role. For a related discussion of the Swiss legal system at the cantonal and local levels, for civil and criminal law, see Chap. 13.