« 瑞士的国内法律框架 » : différence entre les versions

De Baripedia
(Page créée avec « 根据维克多-莫尼埃的课程改编<ref>[https://www.unige.ch/droit/collaborateur/profshonoraires/victor-monnier/ Profil de Victor Monnier sur le site de l'UNIGE]</ref><ref>[https://www.unige.ch/droit/collaborateur/profshonoraires/victor-monnier/publications/ Publications du professeur Victor Monnier]</ref><ref>[https://www.unige.ch/droit/actus/archives/2019/hommage-victor-monnier/ Hommage au professeur Victor Monnier - Faculté de droit - UNIGE]</ref> {{Tr... »)
 
Ligne 17 : Ligne 17 :
}}
}}


= Principles of the hierarchy of legal norms =
= 法律规范等级原则 =
The concept of the hierarchy of norms in a legal system such as Switzerland's is a fundamental principle that ensures the coherence and legitimacy of the legal order. At the top of this hierarchy is international law, which includes international treaties and agreements such as the European Convention on Human Rights, ratified by Switzerland in 1974. Once ratified, these treaties become part of domestic law and take precedence over national laws.
在瑞士这样的法律体系中，规范等级的概念是确保法律秩序一致性和合法性的基本原则。国际法处于这一等级的顶端，其中包括国际条约和协定，如瑞士于1974年批准的《欧洲人权公约》。这些条约一经批准，即成为国内法的一部分，并优先于国内法。


Under international law, the Swiss Federal Constitution, substantially revised in 1999, plays a central role. It defines not only the fundamental principles of the State and the rights of citizens, but also the political and administrative structures. As the supreme standard, it guides the drafting of federal laws, which apply to the entire country. For example, the Federal Act on Equality between Women and Men, adopted in 1995, illustrates how federal laws can give concrete form to constitutional principles. To implement these laws, ordinances are issued by the government or administrative authorities. Although less formal than laws, these ordinances are essential for specifying practical and technical details. For example, the Health Insurance Ordinance details the practical aspects of the 1994 Health Insurance Act.
根据国际法，1999年大幅修订的《瑞士联邦宪法》发挥着核心作用。它不仅规定了国家的基本原则和公民权利，还规定了政治和行政结构。作为最高标准，它指导着适用于全国的联邦法律的起草工作。例如，1995 年通过的《联邦男女平等法》说明了联邦法律如何具体落实宪法原则。为了执行这些法律，政府或行政当局颁布了法令。这些法令虽然不如法律那么正式，但对于具体规定实际和技术细节却至关重要。例如，《医疗保险条例》详细规定了 1994 年《医疗保险法》的实际内容。


At the level of the cantons, which enjoy a high degree of autonomy under Swiss federalism, cantonal constitutions govern the organisation and operation of cantonal institutions. These constitutions must comply with the Federal Constitution. For example, the Constitution of the canton of Vaud, adopted in 2003, illustrates this hierarchical relationship. Cantonal laws, adopted by the cantonal parliaments, deal with matters that fall within the remit of the cantons, such as education or the police. They must comply with both the cantonal and federal Constitutions. The introduction of women's suffrage at cantonal level before the federal level, as in the canton of Vaud in 1959, shows how cantonal laws can sometimes precede changes at federal level. Finally, cantonal ordinances, which are similar to federal ordinances, are crucial to the implementation of cantonal laws. They allow for adaptation to specific local circumstances.
在瑞士联邦制度下，各州享有高度自治权，州宪法规定了各州机构的组织和运作。这些宪法必须符合联邦宪法。例如，2003 年通过的沃州宪法就体现了这种等级关系。州法律由州议会通过，涉及各州职权范围内的事务，如教育或警察。这些法律必须符合州宪法和联邦宪法。1959 年，沃州先于联邦在州一级引入了妇女选举权，这表明州法律有时可以先于联邦法律的变化。最后，与联邦法令类似的州法令对州法律的实施至关重要。它们可以根据当地的具体情况进行调整。


This hierarchical system ensures that Swiss law remains consistent and aligned with its constitutional and international principles. It also illustrates the flexibility and adaptability of Swiss law in the face of societal and international change, while respecting the diversity and autonomy of its various cantons.
这种分级制度确保瑞士法律与其宪法和国际原则保持一致。它还表明瑞士法律在面对社会和国际变化时的灵活性和适应性，同时尊重各州的多样性和自治性。


The emergence and increasing integration of rules of international law, particularly those originating from the European Community, have begun to disrupt the traditional hierarchy of norms in countries such as Switzerland. Although Switzerland is not a member of the European Union, it maintains close relations with it, which has led to the adoption of many European rules and standards in its legal system. A prime example of this influence is the agreement on the free movement of persons between Switzerland and the EU, which came into force in 2002. This agreement has necessitated adjustments to Swiss legislation, particularly in the areas of labour law and migration policy, in order to comply with European standards. This increasing integration of European standards into Swiss law raises complex questions about national sovereignty and how these standards fit into the existing hierarchy of norms. Traditionally, the Swiss Federal Constitution and federal laws have taken precedence, but the adoption of European standards can sometimes create tensions or contradictions with domestic law.
国际法规则，尤其是源自欧洲共同体的国际法规则的出现和日益融合，已开始打破瑞士等国传统的规范等级制度。虽然瑞士不是欧盟成员国，但与欧盟保持着密切的关系，这导致瑞士的法律体系采用了许多欧洲规则和标准。瑞士与欧盟之间的人员自由流动协议就是这种影响的一个典型例子，该协议于2002年生效。该协议要求瑞士调整立法，特别是在劳动法和移民政策方面，以符合欧洲标准。欧洲标准越来越多地融入瑞士法律，引发了有关国家主权以及这些标准如何融入现有规范等级的复杂问题。传统上，瑞士联邦宪法和联邦法律具有优先地位，但采用欧洲标准有时会与国内法产生矛盾或冲突。


In addition, the question of the conformity of Swiss legislation with international agreements is regularly referred to the Swiss Federal Supreme Court. These situations have sometimes led to public and political debate about how Switzerland should balance its legal autonomy with the requirements of international and European agreements. This phenomenon is not unique to Switzerland; many other countries that are not members of the EU, but participate in certain European agreements, face similar challenges. This development reflects the increasingly interconnected nature of international and European law, which is influencing national legal systems and challenging traditional hierarchies of norms. Switzerland incorporates international treaties into its domestic legal order, giving them primacy over national laws. This incorporation means that, once an international treaty has been ratified by Switzerland, its provisions become directly applicable in the Swiss legal system, without the need to transpose them into specific domestic legislation.
此外，瑞士立法与国际协定的一致性问题也经常提交给瑞士联邦最高法院。这些情况有时会引发公众和政治辩论，讨论瑞士应如何平衡其法律自治与国际和欧洲协议的要求。这种现象并非瑞士独有，许多其他非欧盟成员国但参加了某些欧洲协议的国家也面临着类似的挑战。这一发展反映出国际法和欧洲法的相互关联性日益增强，对国家法律体系产生了影响，并对传统的规范等级制度提出了挑战。瑞士将国际条约纳入国内法律秩序，使其优先于国内法律。这种纳入意味着，国际条约一旦获得瑞士批准，其条款就直接适用于瑞士的法律体系，而无需将其转化为具体的国内立法。


This primacy of international norms is a fundamental principle of public international law, known as "monism", where international and national rules form a unified legal system. In Switzerland, this principle is reflected in legal and constitutional practice. The Swiss Federal Constitution explicitly recognises the primacy of international law, stating that ratified international treaties take precedence over conflicting federal laws. However, this primacy does not mean that international norms take precedence over the Swiss Federal Constitution. In the event of a conflict between an international standard and the Constitution, the issue becomes complex and may require legislative intervention or even a constitutional amendment. For example, the adjustments needed to comply with international agreements, such as the bilateral agreements between Switzerland and the European Union, have sometimes required legislative changes or popular votes to resolve potential conflicts with Swiss law or the Constitution. This legal framework underlines Switzerland's commitment to international law and its willingness to comply with international standards and obligations. It also reflects the complexity of the balance between respecting international commitments and preserving national sovereignty in the context of globalisation and the growing interdependence of states.[[Fichier:Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 5.png|vignette|center|400px|[http://www.admin.ch/opc/fr/classified-compilation/19995395/index.html Constitution fédérale de la Confédération suisse du 18 avril 1999] - [http://www.admin.ch/opc/fr/classified-compilation/19995395/index.html#a5 article 5]]]  
国际准则的这种优先地位是国际公法的一项基本原则，被称为 "一元论"，即国际规则和国内规则构成一个统一的法律体系。在瑞士，这一原则体现在法律和宪法实践中。瑞士联邦宪法》明确承认国际法的优先地位，规定已批准的国际条约优先于与之冲突的联邦法律。但这一优先地位并不意味着国际准则优先于《瑞士联邦宪法》。如果国际标准与宪法发生冲突，问题就会变得复杂，可能需要立法干预，甚至需要修改宪法。例如，为遵守国际协议（如瑞士与欧盟之间的双边协议）而需要进行的调整，有时需要修改立法或进行民众投票，以解决与瑞士法律或宪法的潜在冲突。这一法律框架强调了瑞士对国际法的承诺以及遵守国际标准和义务的意愿。它也反映了在全球化和各国日益相互依存的背景下，尊重国际承诺和维护国家主权之间平衡的复杂性。[[Fichier:Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 5.png|vignette|center|400px|[http://www.admin.ch/opc/fr/classified-compilation/19995395/index.html Constitution fédérale de la Confédération suisse du 18 avril 1999] - [http://www.admin.ch/opc/fr/classified-compilation/19995395/index.html#a5 article 5]]]  


   
   


Article 5 of the Swiss Federal Constitution, which defines the principles of state activity governed by law, plays a crucial role in Switzerland's legal and political architecture. This constitutional provision highlights the country's deep respect for the rule of law and democratic governance. The first paragraph of this article emphasises that the law is both the basis and the limit of state activity. This reflects the Swiss tradition of legality, dating back to the creation of the modern federal state in 1848, where respect for the law is considered fundamental to the legitimacy of government action. This approach ensures that all actions taken by the State have a legal basis and are contained within the confines of the law, thus preventing arbitrariness and tyranny. The second paragraph introduces the concepts of public interest and proportionality. Historically, this principle has been essential in balancing the needs of society with individual rights. For example, in implementing environmental policies such as the Federal Environmental Protection Act of 1983, the state has had to ensure that measures taken are not only in the public interest, but also proportionate to the aim pursued, thus avoiding excessive restrictions. The third paragraph, which insists on good faith in the activity of the State and private individuals, is a pillar of trust between government and citizens. This requirement of good faith is a principle that guides the interpretation of laws and the conduct of public affairs. It reinforces transparency and fairness, values that are at the heart of Swiss political culture. Finally, the fourth paragraph, affirming that the Confederation and the cantons must respect international law, is particularly relevant in the contemporary context of globalisation. Switzerland, through its adherence to international treaties such as the Geneva Conventions, has historically demonstrated its commitment to international law. This constitutional provision ensures that Switzerland remains faithful to its international commitments, while maintaining its legal and political integrity. Article 5 of the Swiss Federal Constitution thus embodies the fundamental principles that have guided the development of the Swiss state since the 19th century. It reflects the country's commitment to principles such as legality, proportionality, good faith and respect for international law, which are essential for maintaining legal order and political stability in a democratic society.
瑞士联邦宪法》第 5 条规定了依法治国的原则，在瑞士的法律和政治架构中发挥着至关重要的作用。这一宪法条款强调了瑞士对法治和民主治理的高度尊重。该条第一款强调，法律既是国家活动的基础，也是国家活动的界限。这反映了瑞士的法制传统，可追溯到 1848 年现代联邦国家的建立，在这一传统中，尊重法律被视为政府行为合法性的根本。这种做法确保国家采取的所有行动都有法律依据，并在法律范围内，从而防止任意和专制。第二段介绍了公共利益和相称性的概念。从历史上看，这一原则对于平衡社会需求与个人权利至关重要。例如，在执行 1983 年《联邦环境保护法》等环境政策时，国家必须确保所采取的措施不仅符合公共利益，而且与所追求的目标相称，从而避免过度限制。第三款坚持要求国家和个人在活动中保持善意，这是政府和公民之间信任的支柱。这一诚信要求是解释法律和处理公共事务的指导原则。它加强了透明度和公正性，而这些价值观正是瑞士政治文化的核心。最后，第四段申明联邦和各州必须尊重国际法，这在当代全球化背景下尤为重要。瑞士通过遵守《日内瓦公约》等国际条约，在历史上表明了其对国际法的承诺。这一宪法条款确保瑞士在保持其法律和政治完整性的同时，继续忠实于其国际承诺。因此，《瑞士联邦宪法》第 5 条体现了自 19 世纪以来指导瑞士国家发展的基本原则。它反映了瑞士对合法性、相称性、善意和尊重国际法等原则的承诺，这些原则对于维护民主社会的法律秩序和政治稳定至关重要。


The principle of the primacy of international treaties in the Swiss legal system has its roots in the Latin adage "Pacta sunt servanda", which means "agreements must be respected". This principle is a cornerstone of public international law and stipulates that states are obliged to respect and apply the treaties they have ratified. When Switzerland adopts an international treaty, it undertakes to incorporate the provisions of that treaty into its domestic legal system and to respect them. This means that international law has a direct influence on Swiss law, and that international treaties take precedence over national laws in the event of conflict. This practice is consistent with Switzerland's commitment to international law and reflects its desire to participate responsibly in the international community.
瑞士法律体系中的国际条约优先原则源于拉丁格言 "Pacta sunt servanda"，意为 "协议必须得到尊重"。该原则是国际公法的基石，规定各国有义务遵守和适用其批准的条约。瑞士在通过一项国际条约时，承诺将该条约的规定纳入国内法律体系并予以遵守。这意味着国际法对瑞士法律具有直接影响，在发生冲突时，国际条约优先于国内法律。这种做法符合瑞士对国际法的承诺，也反映了瑞士以负责任的方式参与国际社会的愿望。


Historically, Switzerland has always valued international law, as demonstrated by its role in hosting international organisations and promoting international peace and cooperation. For example, International Geneva is the headquarters of many international organisations and has been a key location for diplomacy and treaty negotiations. Switzerland also played an important role in drafting the Geneva Conventions, which are fundamental to international humanitarian law. Respect for the principle of "Pacta sunt servanda" and the primacy of international law in Swiss law are not only legal obligations, but also a manifestation of the Swiss tradition of neutrality and respect for international agreements. This approach has enabled Switzerland to maintain its international reputation as a reliable state that respects the law, and to play an active and constructive role in the international community.
从历史上看，瑞士一直重视国际法，瑞士在主办国际组织和促进国际和平与合作方面发挥的作用就证明了这一点。例如，日内瓦国际组织是许多国际组织的总部，也是外交和条约谈判的重要地点。瑞士还在起草日内瓦四公约方面发挥了重要作用，这些公约是国际人道主义法的基础。尊重 "条约必须遵守 "原则和国际法在瑞士法律中的优先地位不仅是法律义务，也是瑞士中立和尊重国际协议传统的体现。这种做法使瑞士得以保持其作为一个尊重法律的可靠国家的国际声誉，并在国际社会中发挥积极和建设性的作用。


The principle of good faith, embodied in the adage "Pacta sunt servanda", is in fact a fundamental pillar of international law, as established by Hugo Grotius, one of the founding fathers of modern international law. In his seminal work De Jure Belli ac Pacis ("On the Law of War and Peace"), published in 1625, Grotius laid the foundations of what is now recognised as the law of nations (or public international law). According to Grotius, good faith is essential in relations between states. It implies that states must respect their commitments, in particular the international treaties and agreements they have ratified. This notion is based on the idea that the promises made by states under these treaties must be honoured, which is a guarantee of stability and predictability in international relations. Respect for good faith in the performance of treaties is crucial to maintaining international peace and order. This means that a state cannot ignore its international commitments once they have been made, and must act consistently with the promises made. This approach is reflected in the legal practice of many countries, including Switzerland, where compliance with international treaties is an integral part of the national legal system. In the Swiss context, respect for good faith and the primacy of international law is also in line with its tradition of neutrality and its role as a mediator in international conflicts. By scrupulously respecting its international commitments, Switzerland strengthens its credibility and reputation on the international stage, which is essential for a country that hosts numerous international organisations and often serves as neutral ground for diplomatic negotiations.
现代国际法的奠基人之一雨果-格劳秀斯（Hugo Grotius）所确立的 "条约必须遵守 "的格言所体现的诚信原则实际上是国际法的一个基本支柱。在其于 1625 年出版的开创性著作《战争与和平法》（De Jure Belli ac Pacis）中，格劳秀斯为现在公认的万国法（或国际公法）奠定了基础。根据格劳秀斯的观点，善意在国家间关系中至关重要。这意味着各国必须遵守自己的承诺，尤其是它们批准的国际条约和协定。这一理念的基础是，国家根据这些条约做出的承诺必须兑现，这是国际关系稳定性和可预测性的保证。尊重履行条约的诚意对于维护国际和平与秩序至关重要。这意味着国家一旦做出国际承诺，就不能置之不理，必须言行一致。包括瑞士在内的许多国家的法律实践都体现了这一方针，在瑞士，遵守国际条约是国家法律体系的组成部分。就瑞士而言，尊重诚信和国际法的首要地位也符合瑞士的中立传统及其作为国际冲突调解人的角色。通过严格遵守其国际承诺，瑞士加强了其在国际舞台上的信誉和声望，这对于一个作为众多国际组织的东道国并经常作为外交谈判的中立国来说是至关重要的。


The primacy of federal law over cantonal law in Switzerland is an essential principle in the country's federalist legal system, expressed in the adage "Bundesrecht bricht kantonales Recht", which literally translates as "federal law breaks cantonal law". This principle, also known as the "derogatory force of federal law", stipulates that in the event of a conflict between a federal law and a cantonal law, the federal law prevails. This rule reflects Switzerland's federalist structure, where power is shared between the Confederation (the federal government) and the cantons. Although the cantons enjoy broad autonomy and can legislate in many areas, their laws must comply with the Federal Constitution and federal laws. The primacy of federal law ensures the unity and coherence of the legal framework throughout the country, while allowing a certain amount of diversity and autonomy at local level. Historically, this principle was established to maintain a balance between the autonomy of the cantons and the need for uniform legislation in certain areas of national interest. For example, in areas such as civil rights, foreign policy or national defence, it is essential that federal laws prevail to ensure a coherent and unified approach at national level. The primacy of federal law is also a key element in resolving potential tensions between cantonal and federal legislation. For example, if a canton passes a law that conflicts with a federal law, the Federal Supreme Court, as Switzerland's highest court, may be called upon to resolve the conflict, applying the principle of "Bundesrecht bricht kantonales Recht".[[Fichier:Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 49.png|vignette|center|400px|[http://www.admin.ch/opc/fr/classified-compilation/19995395/index.html Constitution fédérale de la Confédération suisse du 18 avril 1999] - [http://www.admin.ch/opc/fr/classified-compilation/19995395/index.html#a49 article 49]]]Article 49 of the Swiss Federal Constitution, which establishes the primacy of federal law over cantonal law, plays a central role in maintaining Switzerland's legal order and national unity. This provision reflects the country's federalist structure, in which a balance is sought between the autonomy of the cantons and the integrity of the federal state. Historically, since its modern foundation in 1848, Switzerland has evolved as a federal state, with the cantons having their own government and legislation. However, in matters of national interest, it is essential that federal law has primacy. This has been illustrated in various historical contexts, such as the harmonisation of transport or trade policies, where the need for a coherent approach at national level has proved crucial to the economic development and integration of the country. Article 49 confirms that, although the cantons have the right to legislate in various areas, such as education or public health, their laws cannot contradict federal legislation. For example, when it comes to energy policy, the cantons may draw up their own regulations, but these must comply with federal standards, such as those set out in the Energy Act. The role of the Confederation in ensuring that the cantons comply with federal law is also highlighted in this article. It involves a supervisory mechanism to ensure that the actions of the cantons do not run counter to federal law. The Federal Supreme Court, as the country's highest judicial body, has regularly been called upon to rule on disputes between federal and cantonal law, thereby affirming the pre-eminence of federal law. The importance of this article lies in its ability to preserve legislative unity and legal consistency in Switzerland, while respecting the diversity and autonomy of the cantons. This has enabled Switzerland to maintain its stability and integrity as a federal state, while adapting to contemporary developments and challenges. In short, Article 49 is an eloquent example of how Switzerland reconciles its commitment to federal governance with national unity.
在瑞士，联邦法律优先于州法律是该国联邦制法律体系中的一项基本原则，具体表现为 "Bundesrecht bricht kantonales Recht"（直译为 "联邦法律优先于州法律"）。该原则也被称为 "联邦法律的贬损力"，规定当联邦法律与州法律发生冲突时，以联邦法律为准。这一规则反映了瑞士的联邦制结构，即联邦（联邦政府）和各州共享权力。虽然各州享有广泛的自治权，可以在许多领域进行立法，但其法律必须符合联邦宪法和联邦法律。联邦法律至上的原则确保了全国法律框架的统一性和一致性，同时也允许地方享有一定程度的多样性和自治权。从历史上看，这一原则的确立是为了在各州的自治与某些涉及国家利益的领域的统一立法需求之间保持平衡。例如，在公民权利、外交政策或国防等领域，必须以联邦法律为准，以确保在国家层面采取一致和统一的方法。联邦法律的优先地位也是解决州立法与联邦立法之间潜在矛盾的关键因素。例如，如果某州通过的法律与联邦法律相冲突，联邦最高法院作为瑞士的最高法院，可能会被要求适用 "Bundesrecht bricht kantonales Recht "原则来解决冲突。[[Fichier:Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 49.png|vignette|center|400px|[http://www.admin.ch/opc/fr/classified-compilation/19995395/index.html Constitution fédérale de la Confédération suisse du 18 avril 1999] - [http://www.admin.ch/opc/fr/classified-compilation/19995395/index.html#a49 article 49]]]瑞士联邦宪法》第49条规定联邦法律优先于各州法律，在维护瑞士法律秩序和国家统一方面发挥着核心作用。该条款反映了瑞士的联邦制结构，即在各州自治和联邦国家完整之间寻求平衡。从历史上看，自 1848 年建立现代国家以来，瑞士一直是一个联邦制国家，各州拥有自己的政府和立法机构。但是，在涉及国家利益的问题上，联邦法律必须具有优先权。这一点在不同的历史背景下都有所体现，例如运输或贸易政策的协调，在这些情况下，需要在国家层面采取协调一致的方法，这对国家的经济发展和一体化至关重要。第 49 条规定，尽管各州有权在教育或公共卫生等不同领域进行立法，但其法律不得与联邦法律相抵触。例如，在能源政策方面，各州可以制定自己的法规，但这些法规必须符合联邦标准，如《能源法》中规定的标准。本文还强调了联邦在确保各州遵守联邦法律方面的作用。这涉及到一个监督机制，以确保各州的行动不违背联邦法律。联邦最高法院作为国家的最高司法机构，经常被要求对联邦法律和州法律之间的争议做出裁决，从而确认了联邦法律的优先地位。该条款的重要性在于，它既能维护瑞士立法的统一性和法律的一致性，又能尊重各州的多样性和自治性。这使瑞士能够保持其作为联邦国家的稳定性和完整性，同时适应当代的发展和挑战。简而言之，第 49 条是瑞士如何协调其联邦治理承诺与国家统一的有力例证。


= The Constitution =
= 宪法 =


The Swiss Federal Constitution of 1999, regarded as a fundamental norm, plays a crucial role in Switzerland's legal and social framework. This Constitution, in the formal sense, is much more than just a collection of laws; it is the expression of the social order and the very existence of state civil society, as emphasised by Lorenz von Stein, an influential 19th century jurist and sociologist. In his conception of the constitution, Von Stein emphasised that a constitution is a reflection of the social and political structures of a society. In his view, a constitution not only regulates the legal aspects of a state, but also encompasses the values, principles and aspirations of a society. This vision is clearly illustrated in the Swiss Constitution of 1999, which replaced the previous version dating from 1874.
被视为基本准则的1999年《瑞士联邦宪法》在瑞士的法律和社会框架中发挥着至关重要的作用。正如 19 世纪颇具影响力的法学家和社会学家洛伦茨-冯-斯坦因（Lorenz von Stein）所强调的那样，这部宪法在形式上不仅仅是法律的集合，它还是社会秩序和国家公民社会存在的体现。冯-斯坦因在其宪法概念中强调，宪法是一个社会的社会和政治结构的反映。他认为，宪法不仅规范国家的法律方面，还包含社会的价值观、原则和愿望。1999 年《瑞士宪法》取代了 1874 年的旧版宪法，清楚地表明了这一观点。


The 1999 revision was not simply an update of existing laws, but a complete overhaul aimed at modernising the Constitution and making it more accessible and comprehensible to citizens. It incorporates principles such as direct democracy, federalism and respect for human rights, reflecting the fundamental values of Swiss society. The Swiss Constitution, as a fundamental norm, serves as a framework for all the country's other laws. It guarantees individual freedoms, establishes the principles of the rule of law, and defines the division of powers between the federal government and the cantons. This constitutional structure enables Switzerland to maintain a balance between national unity and regional diversity, an essential aspect of its national identity.
1999 年的宪法修订不仅仅是对现有法律的更新，而是对宪法的全面修订，目的是使宪法现代化，让公民更容易理解和使用。它纳入了直接民主、联邦制和尊重人权等原则，反映了瑞士社会的基本价值观。瑞士宪法作为一项基本准则，是瑞士所有其他法律的框架。它保障个人自由，确立法治原则，并规定联邦政府和各州之间的权力划分。这种宪法结构使瑞士能够在国家统一和地区多样性之间保持平衡，这也是瑞士民族特性的一个重要方面。


== The Constitution in the formal sense ==
== 正式意义上的宪法 ==
In the legal context, the notion of a constitution in the formal sense is of crucial importance, as illustrated by the 1999 Federal Constitution of Switzerland. A constitution in the formal sense is distinguished by its written form, the solemnity with which it is adopted and its status as the supreme authority in the hierarchy of legal norms. The written constitution is a pillar of legal and political stability, providing a clear and accessible framework for the governance of a state. This contrasts with systems where the constitution is not a single, codified document, such as the United Kingdom, where the constitution is instead a collection of laws, conventions and case law.
在法律方面，正如 1999 年《瑞士联邦宪法》所示，正式意义上的宪法概念至关重要。正式意义上的宪法以其书面形式、通过时的庄严性及其在法律规范等级中的最高权威地位而与众不同。成文宪法是法律和政治稳定的支柱，为国家治理提供了清晰易懂的框架。这与那些宪法不是单一的成文法文件的制度形成鲜明对比，如英国，其宪法是法律、公约和判例法的集合。


The process of adopting a constitution in the formal sense is generally characterised by its solemnity and rigour. For example, the Swiss Federal Constitution of 1999 replaced that of 1874, reflecting a major change in the country's governance and values. Its drafting and adoption involved scrutiny and direct participation by the Swiss people, underlining the democratic and participatory nature of governance in Switzerland. The supremacy of a formal constitution is also a fundamental aspect. Ordinary laws and government policies must comply with constitutional provisions. In the Swiss case, this means that all legislation, whether federal or cantonal, must be aligned with the principles established by the 1999 Federal Constitution. This hierarchy ensures that fundamental rights, democratic principles and the rule of law are upheld and protected.
正式意义上的宪法通过过程通常以庄严和严格为特点。例如，1999 年的瑞士联邦宪法取代了 1874 年的宪法，反映了国家治理和价值观的重大变化。宪法的起草和通过都有瑞士人民的监督和直接参与，突出了瑞士治理的民主性和参与性。正式宪法的至高无上性也是一个基本方面。普通法律和政府政策必须符合宪法规定。就瑞士而言，这意味着所有立法，无论是联邦立法还是州立法，都必须符合 1999 年《联邦宪法》确立的原则。这种等级制度确保基本权利、民主原则和法治得到维护和保护。


The constitution also encapsulates the essential rules governing the functioning of the state. In the case of Switzerland, this includes the structure of the federal government, the division of powers between the Confederation and the cantons, and the guarantee of citizens' rights and freedoms. For example, the Swiss Constitution establishes the principle of direct democracy, allowing citizens to play an active role in the legislative process through referendums and popular initiatives. Thus, the Swiss Federal Constitution of 1999, as a constitution in the formal sense, is more than just a legal document; it reflects the values, history and identity of the Swiss people, playing a central role in defining the country's social and political order.
宪法还规定了国家运作的基本规则。就瑞士而言，这包括联邦政府的结构、联邦与各州之间的权力划分以及对公民权利和自由的保障。例如，瑞士宪法确立了直接民主原则，允许公民通过全民公决和民众倡议在立法过程中发挥积极作用。因此，作为正式意义上的宪法，1999 年《瑞士联邦宪法》不仅仅是一份法律文件，它还反映了瑞士人民的价值观、历史和身份认同，在确定国家的社会和政治秩序方面发挥着核心作用。


The Constitution, as a set of written rules, is distinguished in the legal system by the superiority of its formality over other rules. This superiority is particularly evident in the procedure for revising the constitution, which is generally more rigorous and demanding than that applicable to ordinary laws. The procedure for revising a constitution underlines its special status. Unlike ordinary laws, which can be amended or repealed relatively easily by legislators, amending a constitution often requires more complex processes. This may include requirements such as qualified majorities in the legislative chambers, or even the need for a popular referendum. These more stringent requirements reflect the fundamental role of the constitution as the bedrock of the principles and organisation of the state, and ensure that changes are not made lightly or without broad consensus. For example, Switzerland's Federal Constitution, adopted in 1999, replaced and modernised the previous constitution of 1874. This process was not only a legislative exercise, but also an act of democratic participation, as it involved a national referendum. This demonstrates respect for the will of the people and recognition of the importance of the constitution as the foundation of the country's legal and political order. This rigour in the revision procedure confirms the status of the constitution as the supreme norm of the State. It ensures that constitutional changes are the result of careful consideration and general agreement, rather than hasty or unilateral decisions. This contributes to the stability of the legal and political system, ensuring that the constitution continues to faithfully reflect the fundamental values and principles of society.
作为一套成文规则，宪法在法律体系中的独特之处在于其形式优于其他规则。这种优越性尤其体现在修改宪法的程序上，该程序通常比适用于普通法律的程序更加严格和苛刻。修改宪法的程序凸显了宪法的特殊地位。与立法者可以相对容易地修改或废除的普通法律不同，修改宪法往往需要更为复杂的程序。这可能包括在立法院获得法定多数票等要求，甚至需要全民公决。这些更严格的要求反映了宪法作为国家原则和组织基石的根本作用，并确保不会轻易或在未达成广泛共识的情况下进行修改。例如，1999 年通过的瑞士联邦宪法取代了之前的 1874 年宪法，并使之现代化。这一过程不仅是一项立法工作，也是一项民主参与行动，因为它涉及全国公民投票。这表明了对人民意愿的尊重，以及对宪法作为国家法律和政治秩序基础的重要性的认可。修订程序的这种严格性确认了宪法作为国家最高准则的地位。它确保宪法的修改是深思熟虑和普遍同意的结果，而不是仓促或单方面的决定。这有助于法律和政治制度的稳定，确保宪法继续忠实地反映社会的基本价值观和原则。


The procedure for revising a constitution in the formal sense is indeed characterised by greater rigour and a more democratic nature than that for other legal norms. This rigour is essential because the constitution represents the legal and political foundation of the State and embodies its fundamental principles and values. The rigour of the constitutional revision procedure is reflected in the stricter requirements for amending the constitutional text. For example, in many countries, including Switzerland, amending the constitution requires not only the approval of the legislators, often by a qualified majority, but also, in many cases, the direct approval of the people by referendum. This qualified majority and popular referendum requirement ensures that any amendment to the constitution reflects a collective will and is not the product of temporary or partisan political decisions. On the other hand, the more democratic nature of this procedure is underlined by the direct participation of citizens in the revision process. In the case of Switzerland, direct democracy plays a central role in governance, and this is particularly true for constitutional amendments. Referendums offer a unique opportunity for citizens to express their views directly on issues of national importance, thereby strengthening the democratic commitment and legitimacy of constitutional changes. By comparison, the procedure for passing, amending and repealing ordinary laws is generally less rigorous. These laws can often be amended by a simple parliamentary majority and do not systematically require direct consultation of the people. This flexibility is necessary to enable legislators to respond effectively to the changing needs and developments of society.
与其他法律规范相比，正式意义上的宪法修订程序确实具有更严格和更民主的特点。这种严格性至关重要，因为宪法代表着国家的法律和政治基础，体现着国家的基本原则和价值观。修宪程序的严格性体现在对宪法文本的修改有更严格的要求。例如，在包括瑞士在内的许多国家，修改宪法不仅需要立法者的批准（通常是特定多数），而且在许多情况下还需要人民通过全民公决直接批准。这种特定多数和全民公决的要求确保了对宪法的任何修改都能反映集体意愿，而不是临时或党派政治决定的产物。另一方面，公民直接参与修宪过程也凸显了这一程序的民主性。在瑞士，直接民主在治理中发挥着核心作用，这一点在宪法修正案中尤为突出。全民公决为公民提供了一个独特的机会，直接表达他们对国家重大问题的看法，从而加强宪法修改的民主承诺和合法性。相比之下，通过、修改和废除普通法律的程序通常没有那么严格。这些法律通常只需议会简单多数通过即可修改，不需要系统地直接征求人民的意见。这种灵活性对于立法者有效应对不断变化的社会需求和发展是必要的。


In the Swiss legal framework, the process of revising the Federal Constitution is characterised by its rigorous and democratically demanding nature, embodied in the requirement for a referendum and the double majority rule. This procedure underlines Switzerland's strong tradition of direct democracy and reflects the country's respect for federalism. When a constitutional revision is proposed in Switzerland, it must be submitted to a national referendum, involving the direct participation of the Swiss electorate. This requirement ensures that any changes to the Federal Constitution are approved directly by the people. This process ensures that the will of the people is at the heart of the legislative process, reinforcing the legitimacy of constitutional changes. In addition to a majority of the people, a constitutional amendment must also be approved by a majority of the Swiss cantons, the second component of the double majority. This requirement reflects Switzerland's federal structure, where the interests of the cantons are carefully taken into account in national decision-making. This rule ensures that constitutional amendments are not only approved by a broad cross-section of the population, but are also acceptable to the majority of the country's federated entities, thereby respecting regional and cultural specificities. A historical example of this procedure can be found in the major constitutional revisions that have taken place in Switzerland, such as the 1999 revision, which replaced the 1874 Constitution. This major revision, involving substantial changes to the structure and principles of Swiss government, had to receive the support not only of the majority of Swiss citizens in a referendum, but also of the majority of the cantons. This process not only demonstrated Switzerland's democratic commitment, but also ensured that the changes reflected both a national and regional consensus. The need for a double majority for constitutional revisions in Switzerland therefore illustrates the country's dedication to governance that respects both the will of the people and the federal balance between the cantons. This process ensures that fundamental changes to the country's supreme law are made with careful thought and broad agreement, contributing to Switzerland's long-term political and legal stability.
在瑞士的法律框架中，《联邦宪法》的修订程序具有严格和民主要求高的特点，体现在全民公决和双重多数规则的要求上。这一程序强调了瑞士强大的直接民主传统，也反映了瑞士对联邦制的尊重。当瑞士提出修宪建议时，必须提交由瑞士选民直接参与的全国公民投票。这一规定确保对联邦宪法的任何修改都直接得到人民的批准。这一程序确保人民的意愿成为立法程序的核心，加强了宪法修改的合法性。除了人民的多数之外，宪法修正案还必须获得瑞士各州多数的批准，这是双重多数的第二个组成部分。这一要求反映了瑞士的联邦制结构，即在国家决策中认真考虑各州的利益。这一规则确保了宪法修正案不仅能得到广大民众的认可，也能为瑞士大多数联邦实体所接受，从而尊重了地区和文化的特殊性。瑞士历次重大宪法修订（如 1999 年宪法修订取代了 1874 年宪法）都体现了这一程序。这一重大修订涉及对瑞士政府的结构和原则进行重大修改，不仅要在全民公决中获得大多数瑞士公民的支持，还要获得大多数州的支持。这一过程不仅表明了瑞士的民主承诺，也确保了修改反映了国家和地区的共识。因此，瑞士的宪法修订需要双重多数，这表明瑞士致力于尊重人民意愿和各州之间的联邦平衡的治理。这一过程确保了对国家最高法律的根本性修改是经过深思熟虑和广泛同意的，有助于瑞士长期的政治和法律稳定。


== The Constitution in the substantive sense ==
== 实质意义上的宪法 ==
The concept of a constitution in the material sense refers to a set of rules which, irrespective of their form or legal nature, govern the organisation and functioning of the state and the exercise of political power. This conception of the constitution focuses less on the legal form or formal process of adoption, and more on the substance of the rules themselves. From this perspective, a constitution in the substantive sense encompasses not only the rules written down in a document formally recognised as a constitution, but also other norms, practices and principles that are fundamental to the functioning of the state and the exercise of power. This includes principles such as the separation of powers, respect for fundamental rights, the balance between the branches of government, and the arrangements for democratic participation.
实质意义上的宪法概念指的是一套规则，这些规则不论其形式或法律性质如何，都制约着国家的组织和运作以及政治权力的行使。这种宪法概念较少关注通过宪法的法律形式或正式程序，而更多关注规则本身的实质内容。从这一角度来看，实质意义上的宪法不仅包括正式承认为宪法的文件中规定的规则，还包括对国家运作和权力行使至关重要的其他规范、惯例和原则。这包括三权分立、尊重基本权利、政府各部门之间的平衡以及民主参与安排等原则。


For example, in some legal systems, key elements of governance and state organisation may not be formally enshrined in the constitutional text, but are considered to be an integral part of the constitution in a substantive sense. This could include constitutional conventions, legal principles established by case law, or deeply rooted democratic traditions. In the Swiss context, although the 1999 Federal Constitution is the formal document defining the structure of the state, the constitution in the substantive sense would also encompass other fundamental principles and practices that are not necessarily codified in the constitutional text. This could include, for example, the practice of direct democracy through referendums and popular initiatives, which is an essential element of Swiss governance, or principles established by the Federal Court.
例如，在某些法律体系中，治理和国家组织的关键要素可能并未正式载入宪法文本，但在实质意义上被视为宪法的组成部分。这可能包括宪法惯例、判例法确立的法律原则或根深蒂固的民主传统。就瑞士而言，尽管 1999 年《联邦宪法》是确定国家结构的正式文件，但实质意义上的宪法还包括不一定编入宪法文本的其他基本原则和惯例。例如，这可能包括通过全民公决和民众倡议实现直接民主的做法（这是瑞士治理的一个基本要素），或联邦法院制定的原则。


The constitution in the material sense, encompassing a set of fundamental rules, whether written or unwritten, plays a crucial role in defining the structure and governance of a state. These rules are not limited to those formalised in a written document, but also include conventions, traditions and legal principles that have a significant influence on how the state operates. The structure of the state, one of the key elements of the constitution in the material sense, is defined by these rules and principles. This includes the way in which the various organs of the state are organised, their respective relationships, and the separation of powers between the legislature, the executive and the judiciary. For example, although the Swiss Federal Constitution formally defines the structure of government, the practices and conventions that have evolved over time complement and enrich this structure. The way in which jurisdiction is designated is another essential aspect. It determines how powers and responsibilities are allocated to the different levels of government, particularly in federal systems such as Switzerland's, where jurisdiction is shared between the Confederation and the cantons. The material rules here include not only written provisions, but also the interpretations and established practices that guide the exercise of power.
实质意义上的宪法包括一整套成文或不成文的基本规则，在确定国家的结构和治理方面发挥着至关重要的作用。这些规则不仅限于书面文件中的正式规定，还包括对国家运作方式有重大影响的惯例、传统和法律原则。国家结构是实质意义上宪法的关键要素之一，它由这些规则和原则确定。这包括国家各机关的组织方式、各自的关系以及立法、行政和司法之间的分权。例如，虽然《瑞士联邦宪法》正式规定了政府的结构，但随着时间的推移而形成的惯例和公约补充并丰富了这一结构。指定管辖权的方式是另一个重要方面。它决定了如何将权力和责任分配给各级政府，特别是在瑞士这样的联邦制国家，联邦和各州共享管辖权。这里的实质性规则不仅包括成文规定，还包括指导权力行使的解释和惯例。


The operation of the various State bodies is also dictated by these fundamental rules. This concerns the way in which decisions are taken, the way in which power is exercised and the way in which bodies interact with each other. Elements such as direct democracy in Switzerland, where citizens have the right to vote directly on important issues, are an integral part of this dynamic, even if they transcend written provisions. Finally, the constitution in the material sense defines the relationship between the individual and the state, particularly as regards the rights and freedoms of citizens. While fundamental rights are often enshrined in constitutional texts, their interpretation and application are influenced by judicial decisions, conventions and unwritten legal principles.
各种国家机构的运作也受这些基本规则的制约。这涉及作出决定的方式、行使权力的方式以及各机构之间的互动方式。瑞士的直接民主（公民有权就重要问题直接投票）等要素是这一动态不可分割的一部分，即使它们超越了成文规定。最后，实质意义上的宪法界定了个人与国家之间的关系，特别是在公民权利和自由方面。虽然基本权利通常都写入了宪法文本，但其解释和适用却受到司法判决、公约和不成文法律原则的影响。


It is fair to say that every state has a constitution in the material sense, as each state establishes a set of fundamental rules that define its structure, how it operates and how it interacts with society. These fundamental rules, whether written or unwritten, are essential to the existence and functioning of any state, because they lay the foundations for its political and legal organisation. The constitution in the material sense is not limited to a written document or a formal law. It also encompasses principles, norms and practices that are woven into the political and social fabric of the state, even if they are not formalised in a legal text. For example, countries such as the United Kingdom do not have a constitution codified in a single document, but they do have a set of laws, conventions and judicial practices that together form their constitution in the material sense.
可以说，每个国家都有一部实质意义上的宪法，因为每个国家都制定了一套基本规则来界定其结构、运作方式以及与社会的互动方式。这些基本规则，无论是成文的还是不成文的，对任何国家的存在和运作都至关重要，因为它们为国家的政治和法律组织奠定了基础。实质意义上的宪法不仅限于书面文件或正式法律。它还包括交织在国家政治和社会结构中的原则、规范和惯例，即使这些原则、规范和惯例没有正式写入法律文本。例如，像英国这样的国家并没有一部编纂成单一文件的宪法，但它们确实有一套法律、公约和司法惯例，它们共同构成了实质意义上的宪法。


In each state, these fundamental rules determine the structure of government, the way in which power is distributed and exercised, the rights and responsibilities of citizens, and the decision-making mechanisms. They ensure the coherence and stability of the political and legal system and serve as a framework for governance and conflict resolution. Even in states with formal constitutions, such as Switzerland, the constitution in the material sense goes beyond the written text. It includes deeply rooted democratic practices, such as direct democracy, as well as jurisprudential interpretations of laws and constitutional principles.
在每个国家，这些基本规则决定了政府的结构、权力分配和行使的方式、公民的权利和责任以及决策机制。它们确保政治和法律制度的连贯性和稳定性，是治理和解决冲突的框架。即使在瑞士这样拥有正式宪法的国家，实质意义上的宪法也不仅仅是书面文本。它包括直接民主等根深蒂固的民主实践，以及对法律和宪法原则的法理解释。


The example of England (or, more broadly, the United Kingdom) is a perfect illustration of the situation of a state that has a constitution in the material sense but not in the formal sense. In the British legal system, there is no single, codified document that is recognised as the country's constitution. Instead, the British constitution is made up of a mosaic of statutes, conventions, case law and historical documents.
英国（或更广义地说，联合王国）的例子很好地说明了一个国家拥有实质意义上的宪法但没有形式意义上的宪法的情况。在英国的法律体系中，没有一个单一的、成文的文件被公认为国家宪法。相反，英国宪法是由成文法、公约、判例法和历史文件拼凑而成的。


One of the key principles of the British constitution is the supremacy of Parliament. This means that Parliament has the ultimate legislative power and can theoretically create or repeal any law by a simple majority. This principle differs markedly from systems where the formal constitution limits and frames the powers of the legislature. Several historical documents are considered to be part of the British constitution in the material sense. The Magna Carta of 1215 is an early example, establishing important principles of justice and limiting the power of the King. The Bill of Rights of 1689 is another key document, which established fundamental principles such as limiting the powers of the monarch, freedom of speech in Parliament and certain citizens' rights. In addition to these historical documents, the British constitution is also shaped by constitutional conventions (practices and procedures that are not legally binding but are followed by tradition) and court decisions that have interpreted and shaped governance over time. This system offers a degree of flexibility, as it allows the constitution to be adapted to social and political developments without the need for a formal constitutional review process. However, it is also based on a deep-rooted tradition of respect for established norms and restraint on the part of political actors, thus guaranteeing the stability and continuity of the system of governance.
英国宪法的主要原则之一是议会至上。这意味着议会拥有最终立法权，理论上只需简单多数即可制定或废除任何法律。这一原则与正式宪法限制和框定立法机构权力的制度明显不同。有几份历史文件被认为是实质意义上的英国宪法的一部分。1215 年的《大宪章》就是一个早期的例子，它确立了重要的正义原则并限制了国王的权力。1689 年的《权利法案》是另一份重要文件，它确立了限制君主权力、议会言论自由和某些公民权利等基本原则。除这些历史文件外，英国宪法还受到宪法惯例（不具法律约束力但遵循传统的做法和程序）和法院判决的影响，随着时间的推移，这些惯例和判决对治理进行了解释和塑造。这种制度具有一定程度的灵活性，因为它允许宪法根据社会和政治发展进行调整，而无需经过正式的宪法审查程序。不过，它也建立在根深蒂固的传统基础上，即尊重既定规范和对政治行为者的克制，从而保证了治理体系的稳定性和连续性。


The State of Israel offers another interesting example of a country that has a constitution in the material sense, but not in the formal sense. Instead of a single formal constitution, Israel is governed by a series of Basic Laws which function as a de facto constitution. These Basic Laws, although of constitutional importance, are not differentiated from other ordinary laws in terms of the procedure for their adoption or revision. These Basic Laws cover various essential aspects of the governance and organisation of the State, such as the powers of parliament, citizens' rights and the administration of justice. They have been adopted at various times since the creation of the State in 1948, and together they form a constitutional framework for the country. A distinctive feature of Israel's Basic Laws is that they can be amended by a simple majority of parliament (the Knesset), just like ordinary laws. This is in contrast to countries with formal constitutions, where revision of the constitution often requires more rigorous procedures and larger majorities. Although Fundamental Laws are designated as "fundamental", they are not distinguished from ordinary laws in terms of legal status or legislative procedure. This lack of formal distinction has raised questions about the protection of fundamental rights and the stability of constitutional principles in Israel, particularly when it comes to legislation that may affect the balance of power or citizens' rights.
以色列国提供了另一个有趣的例子，即一个国家拥有物质意义上的宪法，但没有正式意义上的宪法。以色列没有一部单一的正式宪法，而是由一系列基本法作为事实上的宪法。这些基本法虽然在宪法方面具有重要意义，但在通过或修订程序方面与其他普通法律没有区别。这些基本法涵盖了国家治理和组织的各个重要方面，如议会权力、公民权利和司法。自 1948 年建国以来，以色列在不同时期通过了这些基本法，它们共同构成了国家的宪法框架。以色列《基本法》的一个显著特点是，与普通法律一样，只需议会（以色列议会）的简单多数通过，即可对其进行修改。这与拥有正式宪法的国家形成鲜明对比，在这些国家，修改宪法往往需要更严格的程序和更多的多数票。虽然基本法被称为 "根本法"，但在法律地位或立法程序方面与普通法并无区别。这种缺乏正式区分的做法引发了有关以色列基本权利保护和宪法原则稳定性的问题，特别是在涉及可能影响权力平衡或公民权利的立法时。


== The process of revising the Swiss constitution ==
== 瑞士宪法的修订过程 ==
The process of revising the Swiss Federal Constitution is an important aspect of the country's governance and legal structure. Articles 193 and 194 of the Swiss Federal Constitution set out the details of this revision, whether total or partial.
The process of revising the Swiss Federal Constitution is an important aspect of the country's governance and legal structure. Articles 193 and 194 of the Swiss Federal Constitution set out the details of this revision, whether total or partial.


Version du 14 décembre 2023 à 10:54

根据维克多-莫尼埃的课程改编[1][2][3]

Languages

Deutsch

Español Français Italiano


Português

法律入门：关键概念和定义 ● 国家：职能、结构和政治制度 ● 法律的不同部门 ● 法律渊源 ● 法律的主要形成传统 ● 法律关系的要素 ● 法律的适用 ● 法律的实施 ● 瑞士从起源到20世纪的发展 ● 瑞士的国内法律框架 ● 瑞士的国家结构、政治制度和中立 ● 19世纪末至20世纪中叶国际关系的演变 ● 世界组织 ● 欧洲组织及其与瑞士的关系 ● 基本权利的类别和世代 ● 基本权利的起源 ● 十八世纪末的权利宣言 ● 二十世纪基本权利普遍概念的构建

法律规范等级原则

在瑞士这样的法律体系中，规范等级的概念是确保法律秩序一致性和合法性的基本原则。国际法处于这一等级的顶端，其中包括国际条约和协定，如瑞士于1974年批准的《欧洲人权公约》。这些条约一经批准，即成为国内法的一部分，并优先于国内法。

根据国际法，1999年大幅修订的《瑞士联邦宪法》发挥着核心作用。它不仅规定了国家的基本原则和公民权利，还规定了政治和行政结构。作为最高标准，它指导着适用于全国的联邦法律的起草工作。例如，1995 年通过的《联邦男女平等法》说明了联邦法律如何具体落实宪法原则。为了执行这些法律，政府或行政当局颁布了法令。这些法令虽然不如法律那么正式，但对于具体规定实际和技术细节却至关重要。例如，《医疗保险条例》详细规定了 1994 年《医疗保险法》的实际内容。

在瑞士联邦制度下，各州享有高度自治权，州宪法规定了各州机构的组织和运作。这些宪法必须符合联邦宪法。例如，2003 年通过的沃州宪法就体现了这种等级关系。州法律由州议会通过，涉及各州职权范围内的事务，如教育或警察。这些法律必须符合州宪法和联邦宪法。1959 年，沃州先于联邦在州一级引入了妇女选举权，这表明州法律有时可以先于联邦法律的变化。最后，与联邦法令类似的州法令对州法律的实施至关重要。它们可以根据当地的具体情况进行调整。

这种分级制度确保瑞士法律与其宪法和国际原则保持一致。它还表明瑞士法律在面对社会和国际变化时的灵活性和适应性，同时尊重各州的多样性和自治性。

国际法规则，尤其是源自欧洲共同体的国际法规则的出现和日益融合，已开始打破瑞士等国传统的规范等级制度。虽然瑞士不是欧盟成员国，但与欧盟保持着密切的关系，这导致瑞士的法律体系采用了许多欧洲规则和标准。瑞士与欧盟之间的人员自由流动协议就是这种影响的一个典型例子，该协议于2002年生效。该协议要求瑞士调整立法，特别是在劳动法和移民政策方面，以符合欧洲标准。欧洲标准越来越多地融入瑞士法律，引发了有关国家主权以及这些标准如何融入现有规范等级的复杂问题。传统上，瑞士联邦宪法和联邦法律具有优先地位，但采用欧洲标准有时会与国内法产生矛盾或冲突。

此外，瑞士立法与国际协定的一致性问题也经常提交给瑞士联邦最高法院。这些情况有时会引发公众和政治辩论，讨论瑞士应如何平衡其法律自治与国际和欧洲协议的要求。这种现象并非瑞士独有，许多其他非欧盟成员国但参加了某些欧洲协议的国家也面临着类似的挑战。这一发展反映出国际法和欧洲法的相互关联性日益增强，对国家法律体系产生了影响，并对传统的规范等级制度提出了挑战。瑞士将国际条约纳入国内法律秩序，使其优先于国内法律。这种纳入意味着，国际条约一旦获得瑞士批准，其条款就直接适用于瑞士的法律体系，而无需将其转化为具体的国内立法。

国际准则的这种优先地位是国际公法的一项基本原则，被称为 "一元论"，即国际规则和国内规则构成一个统一的法律体系。在瑞士，这一原则体现在法律和宪法实践中。瑞士联邦宪法》明确承认国际法的优先地位，规定已批准的国际条约优先于与之冲突的联邦法律。但这一优先地位并不意味着国际准则优先于《瑞士联邦宪法》。如果国际标准与宪法发生冲突，问题就会变得复杂，可能需要立法干预，甚至需要修改宪法。例如，为遵守国际协议（如瑞士与欧盟之间的双边协议）而需要进行的调整，有时需要修改立法或进行民众投票，以解决与瑞士法律或宪法的潜在冲突。这一法律框架强调了瑞士对国际法的承诺以及遵守国际标准和义务的意愿。它也反映了在全球化和各国日益相互依存的背景下，尊重国际承诺和维护国家主权之间平衡的复杂性。

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 5


瑞士联邦宪法》第 5 条规定了依法治国的原则，在瑞士的法律和政治架构中发挥着至关重要的作用。这一宪法条款强调了瑞士对法治和民主治理的高度尊重。该条第一款强调，法律既是国家活动的基础，也是国家活动的界限。这反映了瑞士的法制传统，可追溯到 1848 年现代联邦国家的建立，在这一传统中，尊重法律被视为政府行为合法性的根本。这种做法确保国家采取的所有行动都有法律依据，并在法律范围内，从而防止任意和专制。第二段介绍了公共利益和相称性的概念。从历史上看，这一原则对于平衡社会需求与个人权利至关重要。例如，在执行 1983 年《联邦环境保护法》等环境政策时，国家必须确保所采取的措施不仅符合公共利益，而且与所追求的目标相称，从而避免过度限制。第三款坚持要求国家和个人在活动中保持善意，这是政府和公民之间信任的支柱。这一诚信要求是解释法律和处理公共事务的指导原则。它加强了透明度和公正性，而这些价值观正是瑞士政治文化的核心。最后，第四段申明联邦和各州必须尊重国际法，这在当代全球化背景下尤为重要。瑞士通过遵守《日内瓦公约》等国际条约，在历史上表明了其对国际法的承诺。这一宪法条款确保瑞士在保持其法律和政治完整性的同时，继续忠实于其国际承诺。因此，《瑞士联邦宪法》第 5 条体现了自 19 世纪以来指导瑞士国家发展的基本原则。它反映了瑞士对合法性、相称性、善意和尊重国际法等原则的承诺，这些原则对于维护民主社会的法律秩序和政治稳定至关重要。

瑞士法律体系中的国际条约优先原则源于拉丁格言 "Pacta sunt servanda"，意为 "协议必须得到尊重"。该原则是国际公法的基石，规定各国有义务遵守和适用其批准的条约。瑞士在通过一项国际条约时，承诺将该条约的规定纳入国内法律体系并予以遵守。这意味着国际法对瑞士法律具有直接影响，在发生冲突时，国际条约优先于国内法律。这种做法符合瑞士对国际法的承诺，也反映了瑞士以负责任的方式参与国际社会的愿望。

从历史上看，瑞士一直重视国际法，瑞士在主办国际组织和促进国际和平与合作方面发挥的作用就证明了这一点。例如，日内瓦国际组织是许多国际组织的总部，也是外交和条约谈判的重要地点。瑞士还在起草日内瓦四公约方面发挥了重要作用，这些公约是国际人道主义法的基础。尊重 "条约必须遵守 "原则和国际法在瑞士法律中的优先地位不仅是法律义务，也是瑞士中立和尊重国际协议传统的体现。这种做法使瑞士得以保持其作为一个尊重法律的可靠国家的国际声誉，并在国际社会中发挥积极和建设性的作用。

现代国际法的奠基人之一雨果-格劳秀斯（Hugo Grotius）所确立的 "条约必须遵守 "的格言所体现的诚信原则实际上是国际法的一个基本支柱。在其于 1625 年出版的开创性著作《战争与和平法》（De Jure Belli ac Pacis）中，格劳秀斯为现在公认的万国法（或国际公法）奠定了基础。根据格劳秀斯的观点，善意在国家间关系中至关重要。这意味着各国必须遵守自己的承诺，尤其是它们批准的国际条约和协定。这一理念的基础是，国家根据这些条约做出的承诺必须兑现，这是国际关系稳定性和可预测性的保证。尊重履行条约的诚意对于维护国际和平与秩序至关重要。这意味着国家一旦做出国际承诺，就不能置之不理，必须言行一致。包括瑞士在内的许多国家的法律实践都体现了这一方针，在瑞士，遵守国际条约是国家法律体系的组成部分。就瑞士而言，尊重诚信和国际法的首要地位也符合瑞士的中立传统及其作为国际冲突调解人的角色。通过严格遵守其国际承诺，瑞士加强了其在国际舞台上的信誉和声望，这对于一个作为众多国际组织的东道国并经常作为外交谈判的中立国来说是至关重要的。

在瑞士，联邦法律优先于州法律是该国联邦制法律体系中的一项基本原则，具体表现为 "Bundesrecht bricht kantonales Recht"（直译为 "联邦法律优先于州法律"）。该原则也被称为 "联邦法律的贬损力"，规定当联邦法律与州法律发生冲突时，以联邦法律为准。这一规则反映了瑞士的联邦制结构，即联邦（联邦政府）和各州共享权力。虽然各州享有广泛的自治权，可以在许多领域进行立法，但其法律必须符合联邦宪法和联邦法律。联邦法律至上的原则确保了全国法律框架的统一性和一致性，同时也允许地方享有一定程度的多样性和自治权。从历史上看，这一原则的确立是为了在各州的自治与某些涉及国家利益的领域的统一立法需求之间保持平衡。例如，在公民权利、外交政策或国防等领域，必须以联邦法律为准，以确保在国家层面采取一致和统一的方法。联邦法律的优先地位也是解决州立法与联邦立法之间潜在矛盾的关键因素。例如，如果某州通过的法律与联邦法律相冲突，联邦最高法院作为瑞士的最高法院，可能会被要求适用 "Bundesrecht bricht kantonales Recht "原则来解决冲突。

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 49

瑞士联邦宪法》第49条规定联邦法律优先于各州法律，在维护瑞士法律秩序和国家统一方面发挥着核心作用。该条款反映了瑞士的联邦制结构，即在各州自治和联邦国家完整之间寻求平衡。从历史上看，自 1848 年建立现代国家以来，瑞士一直是一个联邦制国家，各州拥有自己的政府和立法机构。但是，在涉及国家利益的问题上，联邦法律必须具有优先权。这一点在不同的历史背景下都有所体现，例如运输或贸易政策的协调，在这些情况下，需要在国家层面采取协调一致的方法，这对国家的经济发展和一体化至关重要。第 49 条规定，尽管各州有权在教育或公共卫生等不同领域进行立法，但其法律不得与联邦法律相抵触。例如，在能源政策方面，各州可以制定自己的法规，但这些法规必须符合联邦标准，如《能源法》中规定的标准。本文还强调了联邦在确保各州遵守联邦法律方面的作用。这涉及到一个监督机制，以确保各州的行动不违背联邦法律。联邦最高法院作为国家的最高司法机构，经常被要求对联邦法律和州法律之间的争议做出裁决，从而确认了联邦法律的优先地位。该条款的重要性在于，它既能维护瑞士立法的统一性和法律的一致性，又能尊重各州的多样性和自治性。这使瑞士能够保持其作为联邦国家的稳定性和完整性，同时适应当代的发展和挑战。简而言之，第 49 条是瑞士如何协调其联邦治理承诺与国家统一的有力例证。

宪法

被视为基本准则的1999年《瑞士联邦宪法》在瑞士的法律和社会框架中发挥着至关重要的作用。正如 19 世纪颇具影响力的法学家和社会学家洛伦茨-冯-斯坦因（Lorenz von Stein）所强调的那样，这部宪法在形式上不仅仅是法律的集合，它还是社会秩序和国家公民社会存在的体现。冯-斯坦因在其宪法概念中强调，宪法是一个社会的社会和政治结构的反映。他认为，宪法不仅规范国家的法律方面，还包含社会的价值观、原则和愿望。1999 年《瑞士宪法》取代了 1874 年的旧版宪法，清楚地表明了这一观点。

1999 年的宪法修订不仅仅是对现有法律的更新，而是对宪法的全面修订，目的是使宪法现代化，让公民更容易理解和使用。它纳入了直接民主、联邦制和尊重人权等原则，反映了瑞士社会的基本价值观。瑞士宪法作为一项基本准则，是瑞士所有其他法律的框架。它保障个人自由，确立法治原则，并规定联邦政府和各州之间的权力划分。这种宪法结构使瑞士能够在国家统一和地区多样性之间保持平衡，这也是瑞士民族特性的一个重要方面。

正式意义上的宪法

在法律方面，正如 1999 年《瑞士联邦宪法》所示，正式意义上的宪法概念至关重要。正式意义上的宪法以其书面形式、通过时的庄严性及其在法律规范等级中的最高权威地位而与众不同。成文宪法是法律和政治稳定的支柱，为国家治理提供了清晰易懂的框架。这与那些宪法不是单一的成文法文件的制度形成鲜明对比，如英国，其宪法是法律、公约和判例法的集合。

正式意义上的宪法通过过程通常以庄严和严格为特点。例如，1999 年的瑞士联邦宪法取代了 1874 年的宪法，反映了国家治理和价值观的重大变化。宪法的起草和通过都有瑞士人民的监督和直接参与，突出了瑞士治理的民主性和参与性。正式宪法的至高无上性也是一个基本方面。普通法律和政府政策必须符合宪法规定。就瑞士而言，这意味着所有立法，无论是联邦立法还是州立法，都必须符合 1999 年《联邦宪法》确立的原则。这种等级制度确保基本权利、民主原则和法治得到维护和保护。

宪法还规定了国家运作的基本规则。就瑞士而言，这包括联邦政府的结构、联邦与各州之间的权力划分以及对公民权利和自由的保障。例如，瑞士宪法确立了直接民主原则，允许公民通过全民公决和民众倡议在立法过程中发挥积极作用。因此，作为正式意义上的宪法，1999 年《瑞士联邦宪法》不仅仅是一份法律文件，它还反映了瑞士人民的价值观、历史和身份认同，在确定国家的社会和政治秩序方面发挥着核心作用。

作为一套成文规则，宪法在法律体系中的独特之处在于其形式优于其他规则。这种优越性尤其体现在修改宪法的程序上，该程序通常比适用于普通法律的程序更加严格和苛刻。修改宪法的程序凸显了宪法的特殊地位。与立法者可以相对容易地修改或废除的普通法律不同，修改宪法往往需要更为复杂的程序。这可能包括在立法院获得法定多数票等要求，甚至需要全民公决。这些更严格的要求反映了宪法作为国家原则和组织基石的根本作用，并确保不会轻易或在未达成广泛共识的情况下进行修改。例如，1999 年通过的瑞士联邦宪法取代了之前的 1874 年宪法，并使之现代化。这一过程不仅是一项立法工作，也是一项民主参与行动，因为它涉及全国公民投票。这表明了对人民意愿的尊重，以及对宪法作为国家法律和政治秩序基础的重要性的认可。修订程序的这种严格性确认了宪法作为国家最高准则的地位。它确保宪法的修改是深思熟虑和普遍同意的结果，而不是仓促或单方面的决定。这有助于法律和政治制度的稳定，确保宪法继续忠实地反映社会的基本价值观和原则。

与其他法律规范相比，正式意义上的宪法修订程序确实具有更严格和更民主的特点。这种严格性至关重要，因为宪法代表着国家的法律和政治基础，体现着国家的基本原则和价值观。修宪程序的严格性体现在对宪法文本的修改有更严格的要求。例如，在包括瑞士在内的许多国家，修改宪法不仅需要立法者的批准（通常是特定多数），而且在许多情况下还需要人民通过全民公决直接批准。这种特定多数和全民公决的要求确保了对宪法的任何修改都能反映集体意愿，而不是临时或党派政治决定的产物。另一方面，公民直接参与修宪过程也凸显了这一程序的民主性。在瑞士，直接民主在治理中发挥着核心作用，这一点在宪法修正案中尤为突出。全民公决为公民提供了一个独特的机会，直接表达他们对国家重大问题的看法，从而加强宪法修改的民主承诺和合法性。相比之下，通过、修改和废除普通法律的程序通常没有那么严格。这些法律通常只需议会简单多数通过即可修改，不需要系统地直接征求人民的意见。这种灵活性对于立法者有效应对不断变化的社会需求和发展是必要的。

在瑞士的法律框架中，《联邦宪法》的修订程序具有严格和民主要求高的特点，体现在全民公决和双重多数规则的要求上。这一程序强调了瑞士强大的直接民主传统，也反映了瑞士对联邦制的尊重。当瑞士提出修宪建议时，必须提交由瑞士选民直接参与的全国公民投票。这一规定确保对联邦宪法的任何修改都直接得到人民的批准。这一程序确保人民的意愿成为立法程序的核心，加强了宪法修改的合法性。除了人民的多数之外，宪法修正案还必须获得瑞士各州多数的批准，这是双重多数的第二个组成部分。这一要求反映了瑞士的联邦制结构，即在国家决策中认真考虑各州的利益。这一规则确保了宪法修正案不仅能得到广大民众的认可，也能为瑞士大多数联邦实体所接受，从而尊重了地区和文化的特殊性。瑞士历次重大宪法修订（如 1999 年宪法修订取代了 1874 年宪法）都体现了这一程序。这一重大修订涉及对瑞士政府的结构和原则进行重大修改，不仅要在全民公决中获得大多数瑞士公民的支持，还要获得大多数州的支持。这一过程不仅表明了瑞士的民主承诺，也确保了修改反映了国家和地区的共识。因此，瑞士的宪法修订需要双重多数，这表明瑞士致力于尊重人民意愿和各州之间的联邦平衡的治理。这一过程确保了对国家最高法律的根本性修改是经过深思熟虑和广泛同意的，有助于瑞士长期的政治和法律稳定。

实质意义上的宪法

实质意义上的宪法概念指的是一套规则，这些规则不论其形式或法律性质如何，都制约着国家的组织和运作以及政治权力的行使。这种宪法概念较少关注通过宪法的法律形式或正式程序，而更多关注规则本身的实质内容。从这一角度来看，实质意义上的宪法不仅包括正式承认为宪法的文件中规定的规则，还包括对国家运作和权力行使至关重要的其他规范、惯例和原则。这包括三权分立、尊重基本权利、政府各部门之间的平衡以及民主参与安排等原则。

例如，在某些法律体系中，治理和国家组织的关键要素可能并未正式载入宪法文本，但在实质意义上被视为宪法的组成部分。这可能包括宪法惯例、判例法确立的法律原则或根深蒂固的民主传统。就瑞士而言，尽管 1999 年《联邦宪法》是确定国家结构的正式文件，但实质意义上的宪法还包括不一定编入宪法文本的其他基本原则和惯例。例如，这可能包括通过全民公决和民众倡议实现直接民主的做法（这是瑞士治理的一个基本要素），或联邦法院制定的原则。

实质意义上的宪法包括一整套成文或不成文的基本规则，在确定国家的结构和治理方面发挥着至关重要的作用。这些规则不仅限于书面文件中的正式规定，还包括对国家运作方式有重大影响的惯例、传统和法律原则。国家结构是实质意义上宪法的关键要素之一，它由这些规则和原则确定。这包括国家各机关的组织方式、各自的关系以及立法、行政和司法之间的分权。例如，虽然《瑞士联邦宪法》正式规定了政府的结构，但随着时间的推移而形成的惯例和公约补充并丰富了这一结构。指定管辖权的方式是另一个重要方面。它决定了如何将权力和责任分配给各级政府，特别是在瑞士这样的联邦制国家，联邦和各州共享管辖权。这里的实质性规则不仅包括成文规定，还包括指导权力行使的解释和惯例。

各种国家机构的运作也受这些基本规则的制约。这涉及作出决定的方式、行使权力的方式以及各机构之间的互动方式。瑞士的直接民主（公民有权就重要问题直接投票）等要素是这一动态不可分割的一部分，即使它们超越了成文规定。最后，实质意义上的宪法界定了个人与国家之间的关系，特别是在公民权利和自由方面。虽然基本权利通常都写入了宪法文本，但其解释和适用却受到司法判决、公约和不成文法律原则的影响。

可以说，每个国家都有一部实质意义上的宪法，因为每个国家都制定了一套基本规则来界定其结构、运作方式以及与社会的互动方式。这些基本规则，无论是成文的还是不成文的，对任何国家的存在和运作都至关重要，因为它们为国家的政治和法律组织奠定了基础。实质意义上的宪法不仅限于书面文件或正式法律。它还包括交织在国家政治和社会结构中的原则、规范和惯例，即使这些原则、规范和惯例没有正式写入法律文本。例如，像英国这样的国家并没有一部编纂成单一文件的宪法，但它们确实有一套法律、公约和司法惯例，它们共同构成了实质意义上的宪法。

在每个国家，这些基本规则决定了政府的结构、权力分配和行使的方式、公民的权利和责任以及决策机制。它们确保政治和法律制度的连贯性和稳定性，是治理和解决冲突的框架。即使在瑞士这样拥有正式宪法的国家，实质意义上的宪法也不仅仅是书面文本。它包括直接民主等根深蒂固的民主实践，以及对法律和宪法原则的法理解释。

英国（或更广义地说，联合王国）的例子很好地说明了一个国家拥有实质意义上的宪法但没有形式意义上的宪法的情况。在英国的法律体系中，没有一个单一的、成文的文件被公认为国家宪法。相反，英国宪法是由成文法、公约、判例法和历史文件拼凑而成的。

英国宪法的主要原则之一是议会至上。这意味着议会拥有最终立法权，理论上只需简单多数即可制定或废除任何法律。这一原则与正式宪法限制和框定立法机构权力的制度明显不同。有几份历史文件被认为是实质意义上的英国宪法的一部分。1215 年的《大宪章》就是一个早期的例子，它确立了重要的正义原则并限制了国王的权力。1689 年的《权利法案》是另一份重要文件，它确立了限制君主权力、议会言论自由和某些公民权利等基本原则。除这些历史文件外，英国宪法还受到宪法惯例（不具法律约束力但遵循传统的做法和程序）和法院判决的影响，随着时间的推移，这些惯例和判决对治理进行了解释和塑造。这种制度具有一定程度的灵活性，因为它允许宪法根据社会和政治发展进行调整，而无需经过正式的宪法审查程序。不过，它也建立在根深蒂固的传统基础上，即尊重既定规范和对政治行为者的克制，从而保证了治理体系的稳定性和连续性。

以色列国提供了另一个有趣的例子，即一个国家拥有物质意义上的宪法，但没有正式意义上的宪法。以色列没有一部单一的正式宪法，而是由一系列基本法作为事实上的宪法。这些基本法虽然在宪法方面具有重要意义，但在通过或修订程序方面与其他普通法律没有区别。这些基本法涵盖了国家治理和组织的各个重要方面，如议会权力、公民权利和司法。自 1948 年建国以来，以色列在不同时期通过了这些基本法，它们共同构成了国家的宪法框架。以色列《基本法》的一个显著特点是，与普通法律一样，只需议会（以色列议会）的简单多数通过，即可对其进行修改。这与拥有正式宪法的国家形成鲜明对比，在这些国家，修改宪法往往需要更严格的程序和更多的多数票。虽然基本法被称为 "根本法"，但在法律地位或立法程序方面与普通法并无区别。这种缺乏正式区分的做法引发了有关以色列基本权利保护和宪法原则稳定性的问题，特别是在涉及可能影响权力平衡或公民权利的立法时。

瑞士宪法的修订过程

The process of revising the Swiss Federal Constitution is an important aspect of the country's governance and legal structure. Articles 193 and 194 of the Swiss Federal Constitution set out the details of this revision, whether total or partial.

According to article 193, the Swiss Constitution may be revised at any time, either in whole or in part. This flexibility ensures that the Constitution can evolve and adapt to social, economic and political changes. A total revision, i.e. a complete overhaul of the Constitution, is a major undertaking and is not common. The last total revision of the Swiss Constitution was completed in 1999, replacing the previous version dating from 1874. Partial revision, which concerns specific amendments to certain provisions of the Constitution, is more common. These partial revisions may be proposed by Parliament or by means of a popular initiative, a distinctive feature of Swiss direct democracy. The popular initiative allows citizens to propose constitutional amendments, provided they gather the required number of signatures.

Article 194 describes the ratification process for constitutional amendments. Any revision of the Constitution, whether total or partial, must be approved by a double majority: a majority of the Swiss people and a majority of the cantons. This double majority requirement ensures that any amendment to the Constitution receives broad support at both national and regional level, reflecting Swiss federalism and respect for the country's diverse regions and linguistic and cultural communities. This revision process ensures that the Swiss Constitution remains a living document, reflecting the values and aspirations of the Swiss people while preserving the stability and integrity of the country's legal and political framework. The combination of flexibility for revisions and the requirement of a broad consensus for their adoption is a key element of Swiss democracy, allowing a balance between continuity and adaptation to the new challenges and needs of society.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 193

The Federal Constitution of the Swiss Confederation, established on 18 April 1999, presents a distinct and democratic approach to the total revision of the constitution, as stipulated in Article 193. This revision process is a profound illustration of Switzerland's commitment to direct democracy and respect for international law. The possibility of revising the Constitution may be initiated by several actors: the Swiss people themselves, one of the two legislative councils (the National Council or the Council of States), or by the Federal Assembly as a whole. This plurality of initiation mechanisms ensures that diverse groups within Swiss society can play an active role in shaping their constitutional framework. Historically, this provision has allowed the Swiss Constitution to evolve gradually, reflecting changes in social attitudes, political needs and international contexts.

In the event of a proposal for a total revision by the people, or in the event of a disagreement between the two Councils, the power rests with the Swiss people to decide, by means of a vote, whether a total revision should be undertaken. This principle reinforces the nature of direct democracy in Switzerland, where citizens have a significant right of scrutiny and decision on major constitutional issues. The example of the 1999 revision, which replaced the 1874 constitution, demonstrates the effectiveness of this process, with the people directly involved in overhauling their fundamental law. If the people approve a total revision, both councils are renewed, ensuring that the revision is carried out by representatives who reflect the current views and aspirations of the electorate. This unique provision ensures that any major revision of the Constitution is in line with the contemporary perspectives of the people.

Finally, Article 193 strongly emphasises that revisions to the Constitution must not violate the mandatory rules of international law. This reflects Switzerland's commitment to international norms and its responsibilities as a member of the international community. This respect for international law is a fundamental principle of Swiss policy, reflecting its historic role as a neutral nation and host of numerous international organisations. This process of revising the Swiss Constitution, by combining direct democracy, legislative representation and adherence to international law, shows how Switzerland maintains a balance between traditional values and adaptability to new realities, ensuring that its Constitution remains a living and relevant document for future generations.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 194

Article 194 of the Federal Constitution of the Swiss Confederation deals with the partial revision of the Constitution, providing a mechanism for making specific changes to the Constitution without requiring a total revision. This process is a key element in the flexibility and evolvability of the Swiss constitutional framework. Under this article, partial revision may be initiated either by the people, via a popular initiative, or by the Federal Assembly. This provision allows both elected representatives and citizens to play an active role in the constitutional amendment process. The possibility for the people to initiate partial revisions illustrates the strength of direct democracy in Switzerland, where citizens have significant power to influence legislation.

Article 194 also stipulates that any partial revision must respect the principle of unity of subject matter. This means that the proposed amendments must be coherent and focus on a single subject or theme. This principle is intended to avoid confusion and ensure that the revisions are clear, focused and easy for voters to understand. In addition, the article stresses that partial revisions must not violate peremptory rules of international law. This respect for international norms is consistent with Switzerland's long-standing commitment to international law and its reputation as a nation that respects international agreements and treaties. Finally, any popular initiative for a partial revision of the Constitution must respect the principle of unity of form. This means that the proposal must be presented in a way that is coherent and structured, making it easier for the people and the legislative bodies to understand and assess.

Switzerland's first formal constitution was drawn up in 1798, marking a significant milestone in the country's political and legal development. Prior to that date, Switzerland was not a unified state in the modern sense, but rather a confederation of cantons linked by a network of alliances and treaties. The Swiss Confederation was founded in 1291 with the Federal Pact, considered to be the founding act of Switzerland. This pact, and subsequent treaties between the cantons, created a complex network of alliances that governed relations between the Swiss cantons. These agreements focused primarily on mutual defence and the management of common affairs, but they did not constitute a constitution in the formal sense. This confederal structure continued until the Peace of Aarau in 1712, which marked the end of the wars between the Swiss cantons. Throughout this period, Switzerland was characterised by its decentralised nature, with each canton retaining a high degree of autonomy in terms of governance and legislation. There was no centralised document or written constitution governing all the cantons.

This changed in 1798 with the introduction of the first formal constitution, often referred to as the Constitution of the Helvetic Republic. This constitution was influenced by the ideals of the French Revolution and marked a significant break with Switzerland's confederal past. It introduced concepts such as the unification of the state, centralisation of power and common citizenship, laying the foundations for the modern Swiss state. This first formal constitution laid the foundations for the subsequent development of Switzerland's constitutional and legal structure, ultimately leading to the Federal Constitution of 1848, which established Switzerland's modern federalist structure, and its revision in 1999, which is the version currently in force. These developments show how Switzerland evolved from a decentralised network of alliances into a unified federal state with a formal, structured constitution.

The Constitution of 1798 represents a significant milestone in Switzerland's constitutional history, as it is the country's first constitution in the formal sense. It marked a radical departure from the previous system of treaties and alliances between cantons, introducing ideas inspired by the French Revolution and laying the foundations for a centralised state. The Constitution of 1798, known as the Constitution of the Helvetic Republic, was imposed under French influence after the invasion of Switzerland. It replaced the decentralised confederal structure with a centralised government, establishing a model of common citizenship and uniform administration. However, this constitution was not welcomed by all sections of Swiss society, as it represented a significant break with the tradition of cantonal autonomy.

The Constitution of 1848 marked another decisive turning point. It introduced the federal structure that characterises the Swiss political system today. Inspired by the failures of the Helvetic Republic and the liberal movements of 1848 in Europe, this constitution sought to balance the autonomy of the cantons with the need for a strong central government. It established a federal system in which power is shared between the federal government and the cantons, with each canton retaining a degree of autonomy in its internal affairs. The Constitution of 1848 laid the foundations of the modern Swiss political system. It introduced key institutions such as the Federal Council, the Federal Assembly and the Federal Supreme Court, and established principles such as direct democracy, federalism and neutrality, which are still essential elements of the Swiss identity.

The first principle of the revision of Switzerland's Federal Constitution is that it can be revised at any time, providing great flexibility to make changes in response to changing needs and circumstances in society. This principle is fundamental in a political system that values direct democracy and adaptability. The initiative to revise the Swiss Constitution can be launched either by the people (popular initiative) or by parliament (parliamentary initiative). A popular initiative requires the collection of a specified number of signatures from eligible citizens in order to propose a revision, while a parliamentary initiative begins in the Federal Assembly.

Once a proposal for constitutional revision has been formulated, it must be approved by both the Swiss people and the cantons, according to the principle of the double majority, as stipulated in article 195 of the Constitution. This means that for a (total or partial) revision of the Constitution to be adopted, it must not only win a majority of votes at national level in a popular vote, but also be approved by a majority of the Swiss cantons. This double majority requirement ensures that any amendment to the Constitution receives broad support, reflecting both the will of the majority of the Swiss population and the consent of the country's different regions and cultural communities. This process underlines the importance of consensus and fair representation in the Swiss political system, ensuring that constitutional changes are made with careful consideration and broad agreement.

The distinction between partial and total revision of the Constitution is an important aspect of the legal framework in Switzerland, reflecting the flexibility and depth of the constitutional process. A partial revision of the Constitution focuses on amending a number of specific articles. This allows targeted changes to be made without calling into question the constitutional framework as a whole. Partial revisions are often used to meet specific needs or to update particular aspects of the Constitution in response to changes in society, the economy or the political landscape. Such revisions may be initiated by a popular initiative, where a group of citizens collects the necessary signatures to propose a change, or by the Federal Assembly. A total revision, on the other hand, involves revising the entire Constitution. This means re-examining and potentially rewriting the entire constitutional document. Such an undertaking is much more complex and far-reaching than a partial revision, as it calls into question the very foundations of the country's legal and political system. A total revision can be proposed by the people or by the Federal Assembly, and if it is approved by a popular vote, it entails the renewal of both councils to reflect the current will of the people. The last total revision of the Swiss Constitution took place in 1999, replacing the previous constitution of 1874. The revision process, whether total or partial, is subject to the approval of the people and the cantons, in keeping with Switzerland's tradition of direct democracy and federalism. This approach ensures that any changes to the Constitution are the result of a broad consensus and careful consideration, thereby respecting the fundamental democratic principles on which Switzerland is founded.

The requirement that any revision of the Swiss Constitution, whether total or partial, must respect the mandatory rules of international law is a fundamental principle that underlines Switzerland's commitment to international law. This condition is crucial to maintaining the integrity of the Swiss legal system and ensuring that Switzerland remains in compliance with its international obligations. Peremptory rules of international law, often referred to as "jus cogens", are fundamental norms of general international law recognised by the international community as unchangeable and from which no state may derogate. They include principles such as the prohibition of torture, genocide and aggression, as well as respect for human rights and fundamental freedoms. By incorporating this requirement into the constitutional review process, Switzerland is ensuring that its domestic laws, including its Constitution, not only comply with international standards, but also reflect universal principles of justice and human rights. This demonstrates Switzerland's commitment as a responsible member of the international community and its desire to promote and support global peace and justice. This respect for the imperative rules of international law in the constitutional revision process strengthens Switzerland's credibility and respect on the international stage. It also illustrates how international principles and obligations can be integrated into the national legal framework, contributing to the harmonisation of domestic and international law.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 192

Article 192 of the Federal Constitution of the Swiss Confederation, dated 18 April 1999, establishes the general principle that the Constitution may be revised at any time, either in whole or in part. This principle is a demonstration of the flexibility and adaptability of the Swiss constitutional framework, enabling the country to respond effectively to contemporary developments and challenges. The first paragraph of Article 192 emphasises that the Constitution may be revised at any time, providing the opportunity to make adjustments or updates as required. This provision guarantees that the Swiss Constitution is not a static document, but a living framework that can evolve in line with changes in society, politics or the economy. The second paragraph specifies that, unless otherwise stipulated in the Constitution or in legislation deriving from it, the revision of the Constitution follows the ordinary legislative procedure. This means that proposed amendments must go through the same stages as other laws, including consideration and approval by both chambers of the Swiss Parliament. However, in practice, due to the importance and scope of constitutional revisions, these processes are often accompanied by a higher level of deliberation and consensus than for ordinary laws. This framework for constitutional revision reflects the balance between stability and flexibility in the Swiss legal system. It allows for necessary adjustments to reflect the current values and needs of Swiss society, while maintaining an orderly and democratic process that guarantees legitimacy and careful consideration in the process of constitutional change.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 194

Article 194 of the Federal Constitution of the Swiss Confederation, incorporated in the 1999 revision, sets out the framework for the partial revision of the Constitution, a process that illustrates the combination of direct and representative democracy in the Swiss political system. This procedure makes it possible to amend specific sections of the Constitution without undertaking a complete overhaul. Partial revision can be initiated either by the Swiss people, through a popular initiative, or by the Federal Assembly. This possibility for the people to initiate partial revisions highlights the significant power granted to citizens in the Swiss legislative process. Popular initiatives, in particular, bear witness to the strength of direct democracy in Switzerland, enabling citizens to actively propose constitutional changes. The importance of unity of subject matter in any partial revision is also emphasised, requiring the proposed changes to be coherent and focused on a single subject. This rule is intended to ensure that proposed amendments are clear and focused, avoiding the confusion that could result from amendments that are too broad or diverse. In addition, the article stipulates that revisions must not violate peremptory rules of international law, reflecting Switzerland's commitment to respecting international legal norms.

As far as popular initiatives are concerned, the principle of unity of form is another crucial aspect. Proposals must be presented in a coherent and structured manner, ensuring that they are clearly formulated and comprehensible to the public and legislative bodies. This requirement ensures that popular initiatives are well thought out before being put to the vote. These aspects of Article 194 reflect Switzerland's balanced and democratic approach to constitutional revision. They ensure that the changes made to the Constitution are the result of careful thought, of a general consensus, and are consistent with the country's international commitments and fundamental values. This demonstrates how Switzerland, while adapting to contemporary developments, maintains a balance between fundamental democratic principles and respect for international standards.

In Switzerland, the right of constitutional initiative enables the people to play an active role in the constitutional revision process. This form of direct democracy is a characteristic feature of the Swiss political system, giving citizens the opportunity to directly influence legislation. A constitutional initiative is launched when 100,000 Swiss citizens sign a petition calling for the Constitution to be revised within 18 months. This threshold, set at 100,000 signatures, ensures that only proposals that enjoy significant support among the population are taken into consideration. This requirement represents a balance between facilitating popular participation and ensuring that initiatives are seriously considered and supported by a substantial proportion of the population. Once a constitutional initiative meets this criterion, it is subject to a process that includes consideration and voting by the Swiss people, as well as by the cantons. The initiative must obtain a double majority to be adopted: a majority of the Swiss voters and a majority of the cantons. This process ensures that the proposed constitutional changes not only reflect the will of the majority of the population, but are also acceptable to Switzerland's various regions and linguistic and cultural communities. The existence of the constitutional initiative testifies to Switzerland's deep commitment to direct democracy. This feature of the Swiss political system allows citizens to play a significant role in shaping their legal and constitutional framework, reflecting democratic values and the active participation of citizens in the governance of their country.

In the context of a total revision of the Swiss Federal Constitution, if an impasse arises between the two chambers of Parliament (the National Council and the Council of States) over the approval of a revision initiative, the decision is then transferred to the Swiss electorate. This situation arises when the chambers are unable to reach agreement on whether to adopt or reject a proposal for a total revision of the Constitution. When the question is put to a popular vote, it must be presented in general terms. This means that the Swiss people are voting on the principle of a total revision, not on specific changes or details of the new Constitution. Once the people have approved the principle of a total revision, a process is set in motion to draft the new Constitution.

This process is an example of how direct democracy works in Switzerland, giving the people the ultimate power to decide on major changes to the country's fundamental law. If the people approve the principle of a total revision, both chambers of parliament are renewed to reflect the current will of the people. These new chambers are then responsible for drafting the text of the new Constitution. This total revision procedure ensures that fundamental changes to the Constitution are not only the result of a parliamentary decision, but are also backed by a popular mandate. It illustrates Switzerland's commitment to a political system in which the people play a central role in important constitutional decisions, reflecting the deeply rooted democratic values of Swiss society.

Total revision of the Constitution: Popular initiative and parliamentary review

In the Swiss constitutional system, the distinction between total and partial revisions of the Constitution is based on the way in which they are formulated and proposed. A total revision of the Swiss Constitution must be presented in general terms. This means that when the principle of a total revision is put to the vote, voters are voting on the overall idea of revising the Constitution in its entirety, without going into the specific details or content of the revision. If the principle of a total revision is approved by the people and the cantons, the process of drafting a new constitution begins, often involving in-depth debate and extensive collaboration to determine the specific content and structure of the new constitution.

On the other hand, a partial revision of the Constitution can be proposed in two ways: either in general terms or in the form of a draft. When proposed in general terms, the principle or idea behind the revision is presented without a specific text, similar to the total revision. However, a partial revision can also be presented in draft form, where the specific text of the proposed change is formulated and presented for approval. This approach allows a more focused examination and debate on the specific changes suggested to the Constitution. These methods of formulating constitutional amendments reflect the flexibility and democratic approach of the Swiss constitutional system. They allow for adjustments tailored to the nature and extent of the changes desired, whether for a complete update of the constitutional framework or for targeted amendments to specific aspects of the Constitution.

In the context of the total revision of Switzerland's Federal Constitution, if a popular initiative for a total revision of the Constitution is approved by a vote of the people, an important step follows: the renewal of Parliament (the Federal Assembly) and the Federal Council. When the Swiss people vote in favour of a total revision, this indicates a desire for significant change in the country's constitutional framework. To reflect this desire for change and to ensure that the new Constitution is drafted in a spirit that is representative of the population's current aspirations, a renewal of the legislative and executive bodies is necessary.

The renewal of Parliament means that new elections are held for both chambers of the Federal Assembly, namely the National Council (the lower house) and the Council of States (the upper house). This ensures that the members of Parliament who will be involved in drafting the new Constitution faithfully represent the political mandate and opinions of the electorate at that particular time. Similarly, the renewal of the Federal Council, the executive body of the Swiss government, is part of this drive for renewal and representativeness. The Federal Council is responsible for executing laws and plays a crucial role in the administration of the country. The renewal of this body ensures that the executive is in step with the new political and legislative framework that will be established by the new Constitution.

This process of renewal following the approval of an initiative for a total revision of the Constitution is a testament to the democratic and responsive structure of Swiss governance. It ensures that major constitutional changes are carried out with full legitimacy and reflect the current wishes of the Swiss people.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 140

Article 140 of the Federal Constitution of the Swiss Confederation, enshrined in the 1999 revision, is an outstanding example of Switzerland's commitment to direct democracy. Under this article, certain key decisions, including constitutional amendments and membership of international organisations, must be approved by the people and the cantons via a compulsory referendum. This procedure ensures that major changes to the country's governance and foreign policy receive direct democratic support.

Revisions to the Constitution, whether total or partial, are subject to the approval of the people and the cantons. This process was crucial during the total revision of 1999, which saw a complete updating of the constitutional text to better reflect the contemporary realities and values of Swiss society. Similarly, any decision on Switzerland's membership of collective security organisations or supranational communities must pass through this democratic filter, underlining the importance of Swiss autonomy and neutrality. In addition, federal laws considered urgent and without a constitutional basis, if they are to be in force for more than a year, also require popular approval. This provision ensures that even in extraordinary situations, the will of the people remains paramount.

In addition, popular initiatives aimed at a total revision of the Constitution, as well as those designed in general terms for a partial revision that have been rejected by the Federal Assembly, must be put to the vote of the people. This principle has been applied on numerous occasions, giving Swiss citizens direct power over the development of their constitutional framework. In the event of disagreement between the two chambers of parliament on the principle of a total revision, the matter is resolved by popular vote, thus ensuring that such fundamental disagreements are decided directly by the voters. Article 140 thus reflects a distinctive feature of the Swiss political system, where direct citizen participation in major government decisions is not only valued, but institutionalised. This approach ensures that major changes to the law or to the country's policy benefit from a broad consensus, thereby entrenching direct democracy and federalism at the heart of Swiss governance.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 193

Article 193 of the Federal Constitution of the Swiss Confederation, incorporated in the 1999 revision, lays down the procedure for a total revision of the Constitution. This procedure reflects the democratic nature and respect for international law that are fundamental to the Swiss political system. According to Article 193, a total revision of the Constitution may be initiated in three different ways. Firstly, it can be proposed by the Swiss people, which demonstrates the strength of direct democracy in the Swiss political system. Secondly, the initiative can come from one of the two councils of the Swiss Parliament - the National Council or the Council of States. Thirdly, the total revision can be decreed by the Federal Assembly itself, which is the joint meeting of these two councils.

If the initiative for a total revision comes from the people, or if the two councils fail to reach agreement, it is the Swiss people who must decide by referendum whether the total revision should be undertaken. This step underlines the importance attached to the will of the people in major constitutional decisions in Switzerland. If the complete revision is approved by the people, Article 193 provides for both Councils of Parliament to be renewed. This provision ensures that the new Constitution is drafted by freshly elected representatives, reflecting the current perspectives and expectations of the Swiss population. In addition, Article 193 stipulates that total revisions of the Constitution must respect the imperative rules of international law. This requirement underlines Switzerland's commitment to international legal norms and its desire to ensure that constitutional amendments are in harmony with its international obligations and principles.

Mechanisms for partial revision of the Constitution

Under the Swiss constitutional system, when a popular initiative in favour of a partial revision of the Constitution, formulated in general terms, succeeds and receives the approval of the Federal Assembly, a specific stage in the legislative process is set in motion to implement the initiative.

Once such an initiative has garnered the necessary support and been approved by the Federal Assembly, the latter is tasked with drafting the concrete text of the partial revision. This involves a detailed drafting process in which the general aspects of the initiative are translated into specific legislative proposals. The Federal Assembly, comprising the National Council and the Council of States, thus works to formulate a text that reflects the spirit of the initiative while being legally viable and consistent with the rest of the Constitution. Once the text of the partial revision has been finalised, it is put to the vote of the people and the cantons. In keeping with Switzerland's tradition of direct democracy, this vote is crucial to the adoption of any constitutional amendment. The text must receive the approval of the majority of voters at national level as well as the majority of cantons. This double majority process ensures that the partial revision of the Constitution enjoys broad support, reflecting the will of the Swiss people and respecting the federal balance between the various cantons.

This procedure for partial revisions of the Constitution illustrates the dynamic interplay between direct and representative democracy in Switzerland. It allows citizens to propose constitutional changes while ensuring that these changes are carefully crafted and assessed before they are adopted. This ensures that changes to the Constitution are both considered and legitimately supported by the population.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 195

Article 195 of the Federal Constitution of the Swiss Confederation clearly states that any revision of the Constitution, whether total or partial, only comes into force once it has been accepted by the people and the cantons. This principle underlines the democratic nature of the constitutional process in Switzerland and ensures that changes to the Constitution are legitimised by broad support. According to this article, the adoption of a constitutional amendment requires the approval of both a majority of Swiss voters in a national referendum and a majority of Swiss cantons. This double majority requirement is an essential element of direct democracy in Switzerland, ensuring that changes to the country's basic law reflect the will of the majority of citizens and take account of regional interests.

This procedure ensures that any revision of the Constitution enjoys democratic support at both national and cantonal level, thereby ensuring that changes are representative and balanced. It also reflects Switzerland's respect for its federal system, where the cantons have a significant role in national decision-making, particularly on constitutional issues. Article 195 is therefore an example of Switzerland's commitment to governance that balances cantonal autonomy and national unity, while allowing direct citizen participation in major government decisions. This approach ensures that revisions to the Constitution are carried out with full legitimacy and consensus, reflecting the fundamental principles on which the Swiss political system is based.

Under Switzerland's system of direct democracy, if the Federal Assembly rejects a popular initiative for a partial revision of the Constitution, it must nevertheless submit the initiative to a vote of the people. This means that, even if the initiative does not win the support of Parliament, Swiss citizens still have the right to decide its fate directly. This process, known as an "advance referendum", allows Swiss voters to decide on the initiative. If the people vote in favour of proceeding with the initiative, then the Federal Assembly must draw up a text of constitutional revision in line with the initiative and submit it to a new vote by the people and the cantons. This process is an example of how direct democracy works in Switzerland, allowing citizens to have a direct impact on political decisions, even when these are initially rejected by their elected representatives. The prior referendum is an important mechanism for ensuring that the voices of the people are heard and respected in the legislative process. It illustrates Switzerland's commitment to maintaining a balance between representative democracy, where elected representatives make decisions on behalf of their constituents, and direct democracy, which allows citizens to play an active and direct role in political decision-making.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 139

Article 139 of the Federal Constitution of the Swiss Confederation, established in the 1999 revision, introduces a crucial mechanism in the Swiss democratic system: the popular initiative for partial revision of the Constitution. This process allows 100,000 Swiss citizens with the right to vote to propose a partial revision of the Constitution. They have 18 months from the official publication of their initiative to collect the necessary signatures. This procedure is a pillar of Swiss direct democracy, enabling citizens to play an active part in constitutional legislation. Popular initiatives may be formulated either in general terms or in the form of a draft proposal. Initiatives in general terms define principles or general ideas for revision, while draft initiatives provide a specific text. This flexibility allows citizens to make a significant contribution to the legislative process, whether by proposing new concepts or suggesting specific textual changes.

The Federal Assembly plays an essential role in this process. It examines initiatives to ensure that they respect the principles of unity of form and unity of subject matter, and that they comply with the mandatory rules of international law. If an initiative does not meet these criteria, it may be declared null and void. This ensures that proposals comply with legal standards and are consistent in content. If the Federal Assembly approves an initiative formulated in general terms, it must draw up a text that complies with the spirit of the initiative and then submit it to the vote of the people and the cantons. If the initiative is rejected by the Federal Assembly, it is nevertheless put to a popular vote, giving citizens the final say. In cases where initiatives take the form of a draft, they are put directly to the vote, with the Federal Assembly recommending acceptance or rejection, and may present a counter-proposal.

This article illustrates Switzerland's commitment to governance where citizens have a direct and meaningful right to shape the Constitution. Historical examples, such as popular initiatives on various social and political issues, demonstrate the effectiveness of this mechanism in shaping Swiss legislation. By allowing citizens to propose constitutional revisions and by putting these proposals to a popular vote, Switzerland ensures that its fundamental laws reflect the will of the people and remain relevant and responsive to changes in society.

Under the Swiss constitutional system, if a popular initiative for a partial revision of the Constitution is approved by the people in a referendum, the Federal Assembly is then obliged to draft the text of the proposed revision in line with the initiative. This process illustrates how direct democracy influences legislation in Switzerland. When a broadly worded initiative is adopted by popular vote, this indicates that voters support the principle or idea proposed for constitutional revision. Following this, the Federal Assembly, which comprises the National Council and the Council of States, is responsible for drafting a bill that reflects the intentions of the initiative. This process requires careful consideration of the legal and practical implications of the initiative to ensure that the final text is workable, consistent with the rest of the Constitution and respects the norms of international law.

Once the Federal Assembly has drawn up the draft revision, it is again put to the vote of the people and the cantons. This ensures that the final revision of the Constitution, as drawn up by the elected representatives, receives the direct democratic approval of the Swiss people. This process highlights the active role played by Swiss citizens in shaping their Constitution. It also ensures that changes to the Constitution are the result of an ongoing dialogue between the people and their elected representatives, reflecting a deep commitment to democratic and participatory governance.

When a popular initiative in Switzerland results in a draft for a partial revision of the Constitution, the ratification process involves a crucial democratic step: the draft must be put to the vote of the people and the cantons. This means that for a specific constitutional revision detailed in the draft to come into force, it must receive the direct approval of the Swiss electorate and a majority of the cantons. In this process, the Federal Assembly plays an important advisory and decision-making role. It examines the draft and takes a position on it, recommending its acceptance or rejection. The Federal Assembly also has the option of proposing a counter-proposal to the initiative. This counter-proposal option makes it possible to offer an alternative that may better reflect Parliament's views or address the concerns raised by the original draft in a different way. The counter-proposal is also put to the vote of the people and the cantons. In cases where there is both a draft and a counter-proposal, voters have the option of choosing between the two proposals or rejecting both. This procedure ensures that proposed constitutional revisions not only reflect the will of the people, but are also subject to scrutiny and careful consideration by elected representatives. This approach demonstrates the Swiss democratic system, where the direct participation of citizens is balanced by the role of the Federal Assembly. It ensures that changes to the Constitution are the result of a participatory and considered process, guaranteeing that the changes are supported by a broad consensus and are in harmony with the needs and values of Swiss society.

Since 1987, a significant change in the process of Swiss direct democracy has enabled the people and the cantons to vote not only on a popular initiative, but also on a counter-proposal put forward by the Federal Assembly. This change introduced the concept of the "double yes" vote, giving voters greater flexibility in their choices in referendums on constitutional initiatives. The "double yes" vote allows voters to vote in favour of both the popular initiative and the counter-proposal. This means that they can express their support for the general objective or idea of the initiative while preferring the alternative wording or approach proposed by the counter-proposal. The result of this system is that, even if the original popular initiative is not directly adopted, its spirit or main objectives can still be achieved if the counter-proposal, which is often seen as a more moderate or workable compromise, is adopted.

This procedure has strengthened the right of initiative in Switzerland for several reasons. Firstly, it has encouraged the Federal Assembly to propose counter-proposals more frequently, thereby recognising the importance of the concerns raised by popular initiatives. Secondly, it has increased the likelihood that the ideas behind popular initiatives will be implemented, even if not in the exact form originally proposed. Finally, it has allowed greater nuance and flexibility in the voting process, enabling voters to support initiatives while opting for more pragmatic or workable solutions. The "double yes" vote is therefore an example of how Switzerland is continually adapting its system of direct democracy to better reflect the will of the people, while ensuring a balanced and considered decision-making process.

Prior to the introduction of the "double yes" concept in Switzerland in 1987, the voting process on popular initiatives and counter-projects had a different dynamic, which could sometimes lead to the status quo being maintained, even if a majority of citizens wanted change. Under the previous system, when a popular initiative and a counter-proposal were put to the vote simultaneously, voters had to choose between the two, without the option of expressing support for the general aims of the initiative while preferring the counter-proposal approach. This situation created a dispersion of votes between the initiative and the counter-proposal. In many cases, although the majority of voters might be in favour of some form of constitutional reform (whether via the original initiative or the counter-proposal), this majority found itself divided, preventing any constitutional amendment.

This dispersal of votes often favoured maintaining the status quo. Even if a significant proportion of voters wanted change, having to choose exclusively between the initiative or the counter-proposal could lead to a result where neither received the majority needed to pass. As a result, despite a general desire for reform among the population, the legislative and constitutional system remained unchanged. The introduction of the "double yes" vote was a response to this problem. By allowing voters to support both the initiative and the counter-proposal, this system increased the chances that some form of constitutional change, reflecting the population's desire for reform, would be adopted. This change has strengthened the effectiveness of direct democracy in Switzerland, ensuring that the voices for change are not diluted, and increasing the likelihood that the concerns of the people will be translated into legislative action.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 139

Before the introduction of the possibility of voting 'yes' to both a popular initiative and a counter-proposal in Switzerland, voters had to choose between one or the other, which could lead to a dispersal of votes. This posed a particular challenge when voters were in favour of constitutional change in general, but were divided between the original initiative and the counter-proposal put forward by the Federal Assembly. As a result, this dispersion of votes could often favour maintaining the status quo, even if a majority of citizens preferred some form of constitutional change. The introduction of the possibility of voting "yes" for both proposals has significantly altered this dynamic. It allows voters to support both the initiative and the counter-proposal, providing a better indication of the general will of the people in favour of change. This "double yes" option makes it possible to measure support for each proposal more accurately, while preventing votes in favour of change from being diluted between the initiative and the counter-proposal. This change to the voting process has strengthened the right of initiative in Switzerland. It has enabled a more faithful representation of the will of the electorate, ensuring that preferences for constitutional change are not hampered by a compulsion to choose between two options. As a result, it has increased the chances that some form of constitutional change, either through the original initiative or the counter-proposal, will be adopted. This change in the voting process illustrates Switzerland's adaptability and commitment to effective and representative direct democracy.

Since the adoption of the Federal Constitution of the Swiss Confederation in 1848, it has undergone two total revisions, one in 1874 and another in 1999. These total revisions represent key moments in Swiss political and legal history, when substantial changes were made in response to developments in society and the political landscape. The Swiss Constitution is designed to allow a degree of flexibility, which is reflected in the popular initiative procedure. This procedure, which allows 100,000 citizens with voting rights to propose a partial revision of the Constitution, illustrates the strength of direct democracy in Switzerland. It offers citizens a direct and tangible means of influencing the fundamental law of their country, which is a concrete expression of the nation's democratic aspirations. However, although the process is accessible, it is true that a minority of popular initiatives ultimately result in a constitutional revision. Several factors contribute to this phenomenon. Firstly, obtaining 100,000 signatures within 18 months is a significant challenge, requiring considerable organisation and support. Secondly, even if a popular initiative passes this stage, it still needs to be approved by a majority of the people and the cantons before it can be adopted. This voting process requires widespread support and acceptance of the proposal among the Swiss population. Finally, the success of an initiative often depends on its content, timeliness and acceptability in the eyes of the population and political representatives. Initiatives that are too radical, ill-conceived or out of touch with society's current concerns are less likely to succeed.

The law

Definition and scope of the law

Law" is the form that rules take to become legally binding. The law is the means by which rules become legally binding. In any legal system, the law is an essential instrument that formalises the norms, guidelines and principles that govern society. It is the mechanism by which state authority establishes the rules that individuals and organisations are required to follow, and it provides a framework for regulating behaviour, resolving conflicts and protecting rights and freedoms. Laws are typically created through a legislative process, which involves the formulation, discussion and adoption of legislative texts by the relevant legislative bodies, such as parliaments or legislative assemblies. Once adopted and promulgated, these rules acquire legal force, which means that they can be applied by government institutions, including the courts. The law serves several essential functions in a society. It establishes standards of behaviour, offers clear predictions and expectations about the consequences of certain actions, and provides a mechanism for resolving disputes in a fair and orderly manner. Laws also help to protect individual rights and freedoms, by delimiting what the state can and cannot do, and by providing remedies for violations of those rights.

A law is an act adopted through a legislative procedure and containing rules of law. The law, as a legal act, is adopted according to a defined legislative procedure, which gives it official authority and binding force. It is an instrument by which the State, through its legislative institutions, establishes rules of law that govern the conduct of individuals, organisations and institutions within society. The legislative procedure involved in passing a law varies from one legal system to another, but generally consists of several key stages: proposal, examination, debate, possible amendments and, finally, adoption and promulgation of the law. This procedure ensures that the law is the result of a process of reflection and deliberation, and that it represents the collective will as expressed by the elected representatives of the people. The content of a law consists of rules of law that define rights and obligations, regulate relationships, establish standards of behaviour, and provide sanctions or remedies for non-compliance. These rules are designed to maintain social order, protect individual and collective rights, and promote justice and fairness within society. Once passed, a law has a higher authority than other forms of regulation or guidance, and there may be legal consequences if it is not complied with. Laws are enforced by the executive and interpreted by the judiciary, ensuring that they are applied and comply with the overall constitutional and legal framework.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 163

Article 163 of the Federal Constitution of the Swiss Confederation, a key element of the country's legal framework, defines the way in which legislative acts are formalised by the Federal Assembly, Switzerland's national legislative body. This provision of the Constitution, incorporated in the major revision of 1999, carefully distinguishes between different forms of legislative acts, reflecting the methodical organisation and rigour of the Swiss legislative process. According to this article, the Federal Assembly issues rules of law in the form of federal laws or ordinances. Federal laws represent the highest level of legislative acts, adopted for important and often complex issues. These laws are the result of a thorough deliberation process within the Federal Assembly and must comply with the Constitution. Ordinances, on the other hand, are more detailed or technical regulations designed to implement or clarify federal laws. They are often used for administrative matters or to specify the details of existing laws. In addition, Article 163 introduces federal decrees, which are used for administrative or organisational decisions. These decrees are divided into two categories: those subject to referendum and simple federal decrees, which are not. Federal decrees subject to referendum are generally reserved for decisions of major importance and can be contested by popular vote, reflecting the principle of direct democracy in Switzerland. Simple federal decrees are used for matters that do not require direct consultation of the people.

This legislative system allows a clear distinction between different types of legislation, ensuring that each category is tailored to the specific nature of the issue being addressed. For example, the Federal Health Insurance Act, adopted in 1994, is an example of major legislation passed in the form of a federal law, reflecting its importance and complexity. On the other hand, the ordinances issued to regulate specific aspects of this law illustrate the use of ordinances for more technical details. Article 163 of the Swiss Constitution therefore ensures that the legislative process is both structured and flexible, enabling legislation to be adapted and effective, while incorporating the principles of direct and representative democracy that are at the heart of the Swiss political system.

A federal law in Switzerland is a law in both the formal and substantive sense, which underlines its importance and scope in the Swiss legal system. In the formal sense, a federal law is a legislative act that has been drafted, debated and adopted by the Swiss Parliament, made up of the National Council and the Council of States. This formal process ensures that the law has been subjected to scrutiny and democratic debate, reflecting the collective will of the elected representatives of the Swiss people. The process of drafting a federal law involves several stages, including the proposal, discussion in committee, debate in plenary session, and finally adoption by both houses of parliament. This formal process gives the law its authority and legitimacy. In the material sense, a federal law contains rules of law. This means that it establishes legally binding standards that govern behaviour, rights and obligations within society. Federal laws cover a variety of areas, such as civil law, criminal law, administrative law and constitutional law, and have a direct impact on the daily lives of citizens. The rules they contain are enforceable and serve as the basis for judicial and administrative decisions. Thus, a federal law in Switzerland is a complete legal instrument, incorporating both the formal process of its creation by Parliament and the material content of its provisions. It represents a balance between the democratic procedure of legislation and the establishment of clear and enforceable legal norms, which are essential to the maintenance of order and justice in Swiss society.

The definition of law in the substantive sense, as you have described it, effectively embraces a broad conception of law, focusing on its content rather than on the procedure for making it. This approach is essential for understanding the scope and application of laws in different legal systems, including Switzerland. In its broadest definition, law in the substantive sense encompasses all legal acts that set out rules of law. This includes not only laws passed by parliaments or legislative assemblies, but also constitutions, international treaties and regulatory acts issued by executive or administrative authorities. What characterises these acts as laws in the substantive sense is their content: they establish general and abstract norms that are applicable to a variety of situations and persons. In the Swiss context, laws in the material sense emanating from the Federal Assembly include provisions that set out rights, obligations and standards of behaviour. These laws are drawn up by the Federal Assembly, which consists of the National Council and the Council of States, representing the democratic process of legislation. Laws in the substantive sense may also be derived from other sources, such as Federal Council ordinances, which are regulatory acts detailing or implementing federal laws. Law in the substantive sense is an all-encompassing concept that designates any legal text that sets out general and abstract standards, whether it be laws adopted by legislative bodies, the constitution, international treaties or regulations. This conception of law emphasises its central role in structuring and regulating society, by providing a legal framework for interactions and behaviour within it.

Important norms can only be made in the form of formal law insofar as it is representative of the people. These formal laws are created through the legislative process and adopted by the elected representatives of the people, thus ensuring that important decisions reflect the will of the people and are the result of democratic debate. Under the Swiss legislative system, the Federal Assembly, made up of the National Council and the Council of States, plays a central role in drafting and adopting formal laws. Formal laws are legislative acts that have been carefully examined, debated and finally adopted by these representative chambers. This process not only guarantees the democratic legitimacy of the laws, but also allows for a thorough examination of the implications and consequences of the proposed rules. The adoption of important standards in the form of formal legislation ensures a degree of transparency and accountability. Elected representatives are accountable to their constituents for the laws they pass, and the open legislative process provides opportunities for public participation and comment. It also ensures that laws are consistent with the Constitution and the fundamental principles of the rule of law.

In Switzerland, formal laws deal with the most important and fundamental issues for society, such as the protection of human rights, economic regulation, the environment, public health and safety. By reserving the creation of important norms to the formal legislative procedure, Switzerland ensures that these crucial decisions are taken in a well-considered, representative manner and in accordance with democratic principles. The principle of reserving the law is the principle that requires important rules of law to be enacted in the form of legislation. However, the Constitution does not prohibit Parliament from dealing with a matter falling within the scope of Article 164 of the Constitution.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 164

Article 164 of the Federal Constitution of the Swiss Confederation, a crucial element of the Swiss legal framework, stipulates that important legislative provisions must be enacted in the form of federal laws. This requirement reflects the importance of democratic representation and deliberation in the Swiss legislative process. The article specifies that federal laws must cover key areas such as the exercise of political rights, restrictions on constitutional rights, the rights and obligations of individuals, taxation aspects, the tasks and services of the Confederation, the obligations of the cantons in implementing federal law, and the organisation and procedure of the federal authorities. Historically, this approach has been adopted to ensure that significant legal decisions are taken with an appropriate level of democratic control. For example, reform of the Swiss healthcare system and changes to federal tax laws were dealt with by federal statute, reflecting their importance to the public welfare and the need for thorough debate and consensus.

In addition, Article 164 allows legislative powers to be delegated to other authorities, but only within the limits defined by the Constitution. This flexibility allows the government to respond more effectively to technical or specialist issues, while ensuring that the legislative process remains consistent with constitutional and democratic principles. However, this delegation is carefully controlled to avoid abuse of power and to maintain the legitimacy and transparency of the legislative process. Switzerland's approach, as illustrated by Article 164, strikes a balance between the need for an efficient legislative process and the preservation of representative democracy. It ensures that important laws, affecting the daily lives of citizens, are adopted in a considered and responsible manner, reflecting the collective will of Swiss society.

The Swiss Parliament, represented by the Federal Assembly, can delegate the power to enact legislation to the executive in the form of ordinances. This delegation is generally used when the executive, typically the Federal Council in Switzerland, is deemed to be better equipped to manage specific or technical aspects of a legislative matter. This delegation of power is a flexible legislative tool that allows a quicker and more specialised response to certain issues that may require technical expertise or a responsiveness that the traditional parliamentary legislative process cannot always offer effectively. For example, in areas such as environmental regulation, public health standards or financial regulation, where technical detail and specific expertise are required, the Federal Council may be better placed to draw up the appropriate regulations in the form of ordinances.

However, this practice is subject to constitutional limits. The Constitution stipulates that certain areas must be regulated by federal law and therefore cannot be delegated to the executive. This ensures that matters of the greatest importance, or those that affect the fundamental rights and freedoms of citizens, remain under the direct control of Parliament, thereby preserving the primacy of the democratic legislative process. The Swiss Parliament's ability to delegate the power to enact legislation in the form of ordinances reflects a balance between administrative efficiency and democratic oversight. It allows for flexible governance adapted to contemporary realities, while ensuring that essential areas remain under the direct legislative jurisdiction of Parliament.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 36

Article 36 of the Federal Constitution of the Swiss Confederation is a fundamental pillar in the protection of human rights in the Swiss legal framework. This article stipulates that any restriction of a fundamental right must not only have a solid legal basis, but must also be justified, proportionate and respect the very essence of fundamental rights. The need for a legal basis for any restriction means that limitations on rights cannot be imposed arbitrarily. They must be established by law, thus ensuring a democratic and transparent process. In the case of serious restrictions, the Constitution requires that such limitations be explicitly mentioned in a formal law, thus ensuring thorough debate and reflection. However, in exceptional situations, where there is a serious, direct and imminent danger, restrictions may be imposed even in the absence of a formal law, although this remains an exception.

A historical example of the application of this article can be seen in the measures taken by Switzerland in emergency situations, such as health crises or security threats. In these cases, although restrictions were imposed to protect public health or national security, they had to be justified by a legitimate public interest, such as protecting the life and health of citizens. In addition, Article 36 emphasises that any restrictions must be proportionate to the aim pursued. This means that the measures taken must not be excessive and must be appropriate to the objective pursued. This proportionality requirement is a key principle in ensuring that fundamental rights are not unnecessarily or unfairly restricted. Finally, the Article affirms that the essence of fundamental rights is inviolable, thus establishing a core of inalienable rights that cannot be restricted under any pretext. This provision protects fundamental rights such as human dignity, ensuring that even in extreme circumstances, respect for the human person remains paramount.

Two fundamental aspects of the legislative process in Switzerland should be highlighted, concerning both the primacy of the legislature in important areas and the possibility of delegating legislative powers. Firstly, in areas deemed important, decision-making is reserved for the legislator, i.e. the Federal Assembly, which is the Swiss parliament. This means that for essential matters - such as those affecting constitutional rights, tax obligations or the organisation of the State - the law-making process must follow the formal legislative procedure. This includes the proposal, debate, amendment and voting of laws by both houses of parliament, the National Council and the Council of States. This process ensures that laws in these crucial areas are the result of careful scrutiny and democratic deliberation, reflecting the collective will and values of Swiss society. Secondly, the Swiss Parliament has the ability to delegate the power to pass certain laws to other bodies, often to the Federal Council, which is the executive arm of government. This delegation is, however, subject to constitutional limits. This means that for certain areas specifically reserved by the Constitution for Parliament's legislative competence, no delegation is possible. Delegation is generally used for more technical or specialised matters, where the executive's expertise and flexibility are particularly useful.

This ability to delegate allows a degree of flexibility in the Swiss legislative system, enabling a more rapid and specialised response to issues that may require technical expertise or responsiveness that the traditional legislative process cannot always provide effectively. However, this is balanced by the need to maintain the primacy of the democratic legislative process for issues of the greatest importance. The Swiss legislative system, as illustrated by these principles, shows a balance between the need for democratic and representative legislation for important issues and the flexibility offered by the delegation of powers for more technical or specific matters. This guarantees both effective governance and respect for democratic and constitutional principles.

The intrinsic characteristics of the Swiss political system, in particular the referendum and the popular will, are at the heart of its direct democracy. These elements illustrate Switzerland's deep commitment to citizen participation in the political and legislative process. The referendum is a key tool of direct democracy in Switzerland. It allows citizens to vote directly on a range of issues, from laws passed by parliament to constitutional amendments and major political decisions. In Switzerland, there are two types of referendum: the optional referendum, which can be triggered by a certain number of citizens' signatures against a law passed by parliament, and the mandatory referendum for certain major decisions, such as revisions to the Constitution or membership of supranational organisations. These mechanisms ensure that Swiss citizens have a direct and meaningful say in the laws and policies that affect them. The will of the people is a fundamental principle of the Swiss political system. It manifests itself not only through referendums, but also through popular initiatives, where citizens can propose changes to the Constitution. This principle recognises that sovereignty resides with the people and that citizens have the power to actively shape their country's legislation and politics. Popular initiatives require the collection of a specified number of signatures in order to be considered, which ensures that only proposals with significant support among the population can progress. The characteristics of referendums and popular will in Switzerland reflect a system in which citizen participation is valued and facilitated. These elements of direct democracy allow for a concrete expression of the popular will, ensuring that political and legislative decisions reflect the desires and concerns of Swiss citizens.

The legislative process

The legislative process in Switzerland begins with the crucial initiative stage, which is the starting point for any bill. The initiative can come from either Parliament or the Federal Council. This initial stage is essential because it defines the direction and content of the legislative proposal. Parliamentary initiatives reflect the diversity of opinions and interests represented in Parliament, while Federal Council initiatives are generally based on administrative considerations or the need to react to specific developments. Once a proposal has been accepted and approved by Parliament, it enters the drafting phase. This phase is carried out under the supervision of the Federal Council, in coordination with the Federal Office of Justice. This collaboration ensures that the preliminary draft is legally sound and meets legislative and constitutional requirements. The involvement of the Federal Office of Justice is particularly important to ensure that the draft is legally sound and in line with existing principles and standards. Once the draft bill has been drawn up, it is submitted to a consultation process. During this stage, the draft is circulated to various government departments and other stakeholders for their views and comments. This consultation process allows diverse perspectives to be incorporated and potential problems or improvements to be identified before the draft legislation is finalised. Departments and stakeholders can offer criticisms or suggestions, thereby helping to improve and refine the bill. This initial process in the Swiss legislative cycle demonstrates a commitment to a democratic, transparent and inclusive process. It not only allows for broad participation in shaping legislation, but also ensures that proposed laws are well thought-out, balanced and representative of the diverse interests and needs of Swiss society.

The consultation procedure in Switzerland is a key stage in the legislative process, and is characterised by its inclusive and democratic nature. This stage is essential for the development of well-founded legislation and treaties that are representative of the various perspectives within Swiss society. During the consultation procedure, the cantons, political parties and various interest groups are invited to give their opinions on important draft legislation, large-scale projects currently under development and significant international treaties. This invitation to participate in consultation is an established practice that allows a wide range of stakeholders to contribute to the legislative process. The cantons, as political entities within Switzerland's federal structure, play an important role in representing regional and local interests. Political parties bring the perspectives of their electoral bases, while interest groups such as professional associations, trade unions, non-governmental organisations and other civil society groups offer specific expertise and views on issues affecting their respective areas. Consultation has a constitutional basis in Switzerland, which underlines the importance of this process in Swiss legislation. By formally recognising the consultation procedure, the Constitution ensures that the law-making process is not only a governmental process, but also a participatory one that reflects the democratic character of the country. The involvement of cantons, parties and different interest groups ensures that laws and treaties are not just the result of parliamentary deliberations, but also the product of a wider process of engagement and consultation. This allows potential concerns to be identified, diverse and often competing interests to be balanced, and solutions to be worked towards that enjoy broad support. In short, the consultation procedure in Switzerland is an example of how participatory democracy can be integrated into the legislative process to improve the quality and acceptability of laws and policies.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 147

Article 147 of the Federal Constitution of the Swiss Confederation formally establishes the consultation procedure, an essential element of the Swiss legislative process that underlines its commitment to participatory democracy. According to this article, the cantons, political parties and interested parties are invited to express their opinions on important legislative projects, far-reaching projects during preparatory work, and significant international treaties. This consultation procedure allows for extensive participation in the process of creating laws and policies in Switzerland. The cantons, as sub-national entities within the country's federal structure, play a crucial role in providing regional and local perspectives. Political parties, representing a range of ideological and political views, also contribute to the richness of debate and deliberation. In addition, the participation of stakeholders, including non-governmental organisations, professional associations, trade unions and other civil society groups, ensures that the voices of different sectors of society are heard. This diversity of opinion and expertise contributes to the development of policies and laws that are more balanced, well-informed and responsive to the needs and concerns of society as a whole. In addition, the inclusion of important international treaties in the consultation process reflects Switzerland's recognition of the growing importance of international issues and agreements. This ensures that decisions taken in the field of international relations also benefit from careful consideration and broad input, taking into account the impacts and implications for Switzerland in a global context. Article 147 of the Swiss Constitution is an example of how a political system can effectively integrate democratic participation into the legislative process, thereby enhancing the legitimacy, transparency and acceptability of laws and policies.

The consultation process in Switzerland, as enshrined in the Constitution, plays a vital role in the development of legislation and public policy. Once a draft bill has been drawn up, it is sent by the Federal Chancellery to the various departments concerned for consultation. This initial internal consultation stage ensures that the draft is examined and evaluated by the various branches of the federal government, each contributing its expertise and point of view on the issues addressed in the draft. Once the draft has been revised and refined following this internal consultation, it enters a broader phase of external consultation. This stage is crucial because it opens up the process to a wider range of stakeholders. The cantons, as federated entities, are being invited to give their views, which is essential to ensure that regional and local perspectives are taken into account. Political parties, representing different spectrums of public and ideological opinion, are also consulted, ensuring that diverse political positions are considered. In addition to the cantons and political parties, representatives of interested parties such as non-governmental organisations, industry groups, trade unions and other experts are also consulted. Their participation brings specialist and technical perspectives to bear and ensures that the interests and concerns of different sectors of society are taken into account in the drafting of legislation. This multi-dimensional approach to the consultation process ensures that the legislative process in Switzerland is not only democratic and transparent, but also inclusive and responsive to the needs and concerns of society as a whole. By incorporating the views of multiple stakeholders from the earliest stages of the legislative process, Switzerland ensures that its laws and policies are well-founded, balanced and representative of the diversity of interests and opinions within the country.

The processing of the bill by the Federal Council is a key stage in the Swiss legislative process, following the consultation phase. This stage involves careful revision and finalisation of the bill, as well as the preparation of an official recommendation. Once the consultation procedure has been completed, the relevant federal department proceeds to draft the bill. This drafting process takes into account the feedback and suggestions received during the consultation, as well as the Federal Council's specific directives and instructions. This ensures that the bill not only conforms to the government's political and legal objectives, but also reflects the contributions and concerns of the various stakeholders involved in the consultation process. After this drafting stage, the Federal Council proceeds to the final examination and adoption of the text of the bill. At this stage, the Federal Council assesses the draft in its entirety, ensuring that it is coherent, legally sound and in line with the government's political and legislative objectives. Once the text has been adopted by the Federal Council, an official commentary is published in a document known as a "message". This message accompanies the bill when it is submitted to Parliament for debate and vote. It provides a comprehensive overview of the bill, including the reasons for its introduction, the objectives it seeks to achieve, and the considerations that influenced its formulation. The Federal Council's message plays a crucial role in the legislative process, as it helps members of parliament to understand the background and motivations behind the bill, thereby facilitating informed consideration and debate. The Federal Council's handling of the bill is an essential step in ensuring that the laws proposed in Switzerland are the result of a rigorous, transparent and inclusive process. This stage ensures that laws are well prepared, justified and ready for thorough parliamentary scrutiny.

The fourth stage of the Swiss legislative process involves the transmission of the draft law to Parliament, a crucial phase in which the draft is subjected to scrutiny and debate by the nation's elected representatives. Once the Federal Council has finalised the bill and drafted the corresponding dispatch, it is forwarded to the two chambers of the Swiss Parliament: the National Council and the Council of States. The bill, together with the Federal Council's message, is published in the Federal Gazette, the official newspaper of the Swiss government. This document is essential for informing members of parliament, as well as the public, about the content of the bill and the government's reasons for proposing it. In Parliament, the bill is first allocated to a chamber, which takes responsibility for examining it first. The decision as to which chamber the bill is submitted to first depends on a number of factors, including the subject of the bill and parliamentary practice. A parliamentary committee is then responsible for examining the bill in detail. This committee studies the bill, holds hearings and prepares a report for the chamber. When the priority chamber takes up the bill, it votes on whether or not to enter into a full debate on the bill. If the vote is positive, the chamber discusses and debates the bill clause by clause, making amendments if necessary. If the vote is negative, the bill is forwarded to the other chamber for consideration. The second chamber follows a similar procedure, examining the bill and issuing a report. If this chamber accepts the bill, it also enters into the matter. However, if the second chamber also rejects the bill, it is withdrawn and considered rejected. This parliamentary process is an example of how the Swiss legislative system ensures that proposed laws are carefully considered, debated and amended if necessary by elected representatives, thereby ensuring that the laws passed reflect the collective will and interests of Swiss society as a whole.

The next phase of the Swiss legislative process involves a "shuttle game" between the two chambers of parliament, the National Council and the Council of States, to resolve differences over a bill. This stage is crucial to achieving consensus on the legislative text. When the two chambers have differing opinions on certain aspects of a bill, the text is sent from one chamber to the other, in an iterative process designed to harmonise their positions. Each chamber examines the changes proposed by the other and can either accept them or propose other changes. This shuttle process continues until agreement is reached on all parts of the bill. This shuttle process ensures that the final text of the bill is the product of full deliberation and represents a compromise acceptable to both houses. In situations where differences persist and agreement seems out of reach, a conciliation conference can be set up. This conference is a committee made up of members of both chambers and aims to find a compromise solution. It is particularly useful in cases where one chamber wants to proceed to a full examination of the bill (an entrée en matière) and the other does not. The conciliation conference plays a mediating role, proposing solutions to overcome disagreements and allow the bill to move forward. If the Conciliation Conference succeeds in reaching a compromise, it is then submitted to both houses for approval. If both houses accept the conciliation conference's proposal, the bill can move forward. However, if no agreement is reached, even after conciliation, the bill is generally considered rejected. This shuttle system and the conciliation conference are examples of how the Swiss legislative process fosters consensus and collaboration between the different branches of government. They reflect the country's commitment to a democratic, inclusive and representative legislative process.

The next stage in the Swiss legislative process involves the Drafting Committee, which plays a crucial role in preparing the final text of the law. Once the two houses of parliament, the National Council and the Council of States, have agreed on the content of the bill, it is sent to the Drafting Committee. The main responsibility of the Drafting Committee is to ensure that the text of the law is clear, coherent and legally correct. It scrutinises the text to correct any errors, clarify the wording and ensure the overall coherence of the document. A unique and important aspect of this process in Switzerland is the drafting of the text in the country's three official languages: German, French and Italian. As Switzerland is a multilingual country, it is essential that the laws are available and understandable to all citizens, whatever their mother tongue. The Drafting Committee therefore ensures that the text of the law is correctly translated into each of these languages, while maintaining the same meaning and content in all language versions. This multilingual drafting stage is essential to guarantee the accessibility and fairness of the legislative process in Switzerland. It reflects the country's respect for its linguistic and cultural diversity and its commitment to inclusive and representative government. After this drafting and translation phase, the final text of the law is ready to be promulgated and implemented.

After the drafting and translation phase by the Drafting Committee, the bill in Switzerland reaches a crucial stage: the final vote in both houses of parliament. This stage is decisive in the legislative process, as it marks the final decision on whether or not the bill should be adopted. The final text of the bill, drafted in German, French and Italian to reflect Switzerland's linguistic diversity, is submitted separately to the National Council (the lower house) and the Council of States (the upper house). Each chamber holds a final vote on the bill. This vote is the culmination of the entire legislative process, including the initiation of the law, the discussions and amendments, the consultation and conciliation phases, and the final drafting. For a bill to be passed, it must receive the approval of a majority in each chamber. If one of the chambers rejects the bill, it is deemed to have been rejected, unless the points of disagreement can be resolved by other means, such as a further conciliation conference. If the bill is approved by both chambers, it then moves on to the enactment stage, where it is signed by the presidents of both chambers and the President of the Confederation, before being published in the Official Compendium of Federal Legislation. The final vote in both chambers is a key moment that ensures that all laws passed in Switzerland have been subject to a thorough democratic process, reflecting a broad consensus among the elected representatives of the people. This concludes the Swiss legislative process, which is characterised by its rigour, transparency and respect for diversity and democracy.

The next stage in the Swiss legislative process is the publication of the law in the Federal Gazette, which triggers a crucial period for the optional referendum. After final approval of the bill by both houses of parliament, the law is officially published in the Federal Gazette. This marks the start of the 100-day referendum period, during which the law is subject to the optional referendum process. This mechanism of direct democracy is a distinctive feature of the Swiss political system, allowing citizens to play an active role in legislation. During these 100 days, a referendum may be requested by at least 50,000 citizens entitled to vote or by eight cantons. This requirement ensures that only laws that cause significant concern or interest among the population or the cantons will be put to a referendum. The threshold required to trigger a referendum reflects Switzerland's commitment to citizen participation while ensuring that the process is not used for trivial matters or without a genuine support base. If the referendum is called within the deadline, the law will only take effect if it is approved by the Swiss people in a national vote. This means that even after going through all the stages of the legislative process, a law can still be challenged by a direct vote of the people. This aspect of the Swiss system illustrates the power given to citizens in legislative decision-making, reinforcing the democratic nature of the country's system of governance. If no referendum is requested within 100 days, the law is automatically promulgated and comes into force according to the terms specified in the legislative text. This final process of publication and referendum period ensures that laws in Switzerland are not only the result of a representative democratic process, but are also subject to the direct approval of the people, if necessary.

If, after being submitted to an optional referendum, the law is accepted by the Swiss people, it passes the final stage before becoming fully effective. In this case, the law is officially published in two key documents: the Official Compendium of Federal Legislation and the Systematic Compendium of Federal Law. The Official Compendium of Federal Legislation is the official publication where all new laws and legislative amendments are recorded. This publication is essential for informing the public and institutions about current and official legislative changes in Switzerland. Publication in the Official Compendium is the final step confirming that the law is in force and must be complied with. At the same time, the law is also published in the Systematic Compendium of Federal Law, which is an organised compilation of all Swiss federal legislation. The Compendium is structured systematically to make it easier to access and understand the laws in force in the country. Publication in this compendium helps to maintain a clear and accessible overview of Swiss legislation, enabling citizens, legal professionals and other interested parties to find relevant legal information easily. Approval by the people and subsequent publication of the law in these official compendia underline the importance of direct democracy in the Swiss legislative system. They ensure that the laws adopted reflect not only the will of elected representatives, but also the direct approval of Swiss citizens. This final stage also ensures the transparency and availability of legal information, key elements in a democratic system where access to legal information is crucial to the exercise of civic rights and responsibilities.

Once all the previous stages of the Swiss legislative process have been successfully completed, including approval by both chambers of parliament, publication in the Federal Gazette, the possible referendum process, and finally publication in the Official Compendium of Federal Legislation and the Systematic Compendium of Federal Law (if applicable), the law is officially adopted and comes into force. The final adoption of a law in Switzerland represents the culmination of a rigorous and participatory democratic process. This stage confirms that the law has not only won the support of the people's elected representatives in Parliament, but has also passed the test of acceptance by the Swiss people in cases where a referendum has been requested and organised. Bringing the law into force means that it becomes a legally binding rule that must be respected by all citizens and institutions. The law may come into force immediately or on a date specified in the text of the law. Once adopted, the law has a direct effect on society, influencing behaviour, regulating activities, protecting rights and freedoms, and establishing responsibilities and obligations. The adoption of a law in Switzerland, by following this methodical and inclusive process, illustrates the country's commitment to a legislative system that is transparent, democratic and respectful of the principles of the rule of law. This ensures that laws are well-founded, legitimate and reflect the values and needs of Swiss society.

The enactment of a law in Switzerland is the culmination of a complex and well-structured democratic process, marking the formalisation and entry into force of legislation. The enactment process varies depending on whether or not the law has been put to a referendum. If a law is the subject of a referendum, and the Swiss people approve the law in the referendum, the Federal Council plays a crucial role by officially validating the result of the referendum. This formal step is significant because it recognises the democratic choice made by the people. For example, in popular votes on issues such as healthcare reform or changes to environmental laws, the validation by the Federal Council after a favourable vote by the people is a formal confirmation that the law has been adopted. If the law has not been submitted to a referendum, promulgation occurs automatically after the 100-day referendum period has expired, provided that no request for a referendum has been filed. In this case, the Federal Chancellery is responsible for recording the expiry of the referendum deadline. This procedure ensures that the law is only enacted if there is no opposition strong enough to justify a referendum. This has been the case for many less controversial or more technical laws, where the referendum deadline has passed without significant opposition, allowing the law to be promulgated without a hitch. Enactment is therefore a crucial step, confirming that the law has passed all the necessary stages of the Swiss legislative process, from its proposal to its parliamentary consideration, via public consultation and, if necessary, approval by referendum. It symbolises Switzerland's respect for representative and direct democracy, ensuring that every law adopted is the result of a transparent, inclusive and legitimate process.

In Switzerland, the publication of a law is one of the last stages in the legislative process, and it is at this point that the law is officially brought to the attention of the public. Publication is essential because it marks the point at which the law is considered to be officially in force and applicable. The Act is published in the Official Compendium of Federal Statutes, which is the main tool for disseminating legislative texts to the public. This publication is crucial not only for reasons of transparency and democratic governance, but also because it informs citizens, businesses, institutions and legal players about new laws and regulations in force. It is essential for citizens to be informed about laws, as this enables legislation to be applied and complied with effectively. Publication in the Official Compendium is also a fundamental principle in law, known as the principle of publicity of laws. This principle states that for a law to be enforceable, it must be made public. In Switzerland, this means that the law is not only passed by Parliament and promulgated by the Federal Council, but is also accessible to all citizens. The practice of publishing laws ensures that all players in Swiss society are informed of legislative changes and can adjust their behaviour accordingly. This ensures that the law is applied uniformly and that citizens can exercise their rights and obligations in full knowledge of the rules in force.

The entry into force of a law in Switzerland represents the final stage in the legislative process, where the law becomes binding and enforceable. This stage occurs after the publication of the law, which is a crucial element in informing the public of the new legislation. Once the law has been passed by Parliament, promulgated by the Federal Council and published in the Official Compendium of Federal Statutes, it attains the status of a legally binding rule. The Act may come into force immediately, i.e. as soon as it is published, or it may come into force at a later date specified in the text of the Act. This provision allows a degree of flexibility so that citizens and institutions can adapt to new legal requirements. The date of entry into force is essential because it marks the moment from which the provisions of the law are enforceable. From this date, citizens and institutions are legally obliged to comply with the new legislation. This means that behaviour, actions and transactions must be aligned with the provisions of the law. The importance of entry into force lies in its role in ensuring that laws are not just recommendations or guidelines, but binding rules of conduct. This ensures that the law is respected and applied uniformly, thereby guaranteeing legal order and stability in society. In short, the entry into force of a law in Switzerland is the culmination of a democratic and transparent process, marking the transition from a legislative proposal to an effective legal rule that shapes the structure and functioning of Swiss society.

In Switzerland, the emergency clause is a special provision that allows a law to come into force immediately in exceptional situations. When a law is deemed urgent, it can be applied as soon as it has been passed by Parliament, without waiting for the usual process of promulgation and publication. Declaring a law urgent requires a qualified majority of the members of each council of the Swiss parliament - the National Council and the Council of States. This majority requirement ensures that the decision to declare a law urgent is not taken lightly, but rather in circumstances where swift action is essential to respond to critical situations or immediate needs. Situations justifying such a measure may include national crises, public health emergencies, natural disasters or other exceptional circumstances where a delay in the application of a law could have serious consequences. For example, during a health crisis such as an epidemic, urgent legislation may be required to enable a rapid and effective response to protect public health. By passing laws with the emergency clause, the Swiss Parliament ensures that the government has the necessary tools to act promptly in response to unforeseen and urgent situations. However, this procedure is subject to controls to prevent abuse, ensuring that the emergency clause is used responsibly and only in justified situations.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 165

Article 165 of the Swiss Federal Constitution plays a crucial role in the country's legislative framework, allowing laws to be passed quickly in urgent situations, while maintaining a balance with democratic principles. This constitutional provision enables Parliament to react effectively and immediately in exceptional circumstances that require rapid intervention, such as national crises or emergency situations. The adoption of urgent legislation requires the approval of a majority of the members of each House of Parliament. These laws, characterised by their temporary nature, are designed to meet immediate and specific needs. A relevant historical example might be legislation in response to a health crisis, where rapid action is required to protect public health. Despite their urgent nature, such laws are not exempt from democratic scrutiny. If a referendum is called against an urgent law, the law expires one year after its adoption if it is not accepted by the people. This ensures that even in emergency situations, laws remain subject to popular approval. For example, an emergency law passed to deal with an economic crisis could be put to a referendum, giving the Swiss people an opportunity to vote on measures taken in their name. Furthermore, if an urgent law has no constitutional basis, it must be approved by the people and the cantons within one year of its adoption. This provision ensures that laws passed in extraordinary circumstances without a direct constitutional basis receive special attention and democratic approval. Article 165 also stipulates that emergency laws that fail to win approval in a vote may not be renewed, thereby emphasising the temporary and exceptional nature of such measures. This mechanism ensures that emergency laws are not used in a prolonged or inappropriate manner. Article 165 reflects Switzerland's ability to balance the need for rapid government action in emergencies with respect for democratic processes and the participation of the Swiss people in legislative decision-making. It is an illustration of how a country can maintain legal order and stability while preserving democratic foundations, even in extraordinary circumstances.

The referendum mechanism in Switzerland, particularly in relation to laws enacted under the emergency clause, is an essential element of democratic control in the legislative process. Even when a law is passed quickly under the emergency clause and comes into force immediately, it remains subject to the possibility of a referendum. If an urgent law that complies with the Constitution is brought into force and a referendum is then requested, the law faces a critical period of democratic validation. In accordance with Article 165 of the Swiss Constitution, this urgent law ceases to be effective one year after its adoption by the Federal Assembly if it is not approved by the Swiss people within this period. This mechanism ensures that, despite the need for rapid action in an emergency, democratic consent remains a fundamental pillar of the legislative process. The referendum process allows Swiss citizens to exercise direct control over laws, even those passed in extraordinary circumstances. For example, if the Swiss government were to pass an urgent law in response to an environmental or economic crisis, citizens would have the right to request a referendum on that law. If a referendum is called and the law is not approved by popular vote within a year of being passed, it would cease to have effect. This mechanism illustrates how the Swiss political system balances government efficiency and responsiveness with democratic participation and control. It ensures that even legislative measures taken in emergency situations do not deviate from the principles of direct democracy that lie at the heart of the Swiss political system.

When an emergency law is passed in Switzerland and found to be contrary to the Constitution, the referendum process requires a higher level of validation: the double majority. This means that for the law to remain in force, it must be approved not only by a majority of the Swiss people, but also by a majority of the cantons. This double majority process is a distinctive feature of Swiss democracy, particularly in cases where emergency laws touch on constitutional aspects. The requirement for approval by both the people and the cantons ensures that changes to the law, even in an emergency situation, receive broad and representative support across the country. This reinforces respect for Switzerland's federal structure and ensures that the interests and opinions of all regions are taken into account. If a referendum is requested against an emergency law that affects the Constitution, and that law does not receive the necessary support of the double majority (the people and the cantons) within a year of its adoption, it ceases to be valid. This control mechanism ensures that laws that have a direct impact on the Constitution - the country's fundamental law - cannot be upheld without clear and widespread democratic support. This process underlines the importance attached in Switzerland to the protection of constitutional principles and democratic participation, even in emergency situations. It ensures that emergency laws, particularly those that could run counter to constitutional principles, are subject to rigorous scrutiny and democratic approval, reflecting the country's deep respect for its democratic and federal foundations.

The decree

Article 163 of the Swiss Federal Constitution establishes a formal framework for legislation enacted by the Federal Assembly, ensuring that each type of legislation is appropriate to its purpose and importance. Federal laws and ordinances are the main legislative instruments used by the Federal Assembly to establish rules of law. Federal laws, as formal legislative acts, generally deal with issues of major importance and require careful consideration and democratic discussion. For example, the Federal Health Insurance Act, which marked a turning point in Swiss health policy, is an example of major legislation adopted in the form of a federal act. On the other hand, ordinances are used for more technical or specific issues, enabling federal laws to be implemented in detail. These ordinances are essential for regulating complex areas such as environmental standards or financial regulations, where specific expertise is required.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 163

In addition to federal laws and ordinances, Article 163 also introduces the category of federal decrees. These decrees may be subject to referendum or, if they are not, they may be classified as simple decrees. Federal decrees subject to referendum are used for important decisions, thereby enabling the Swiss people to participate directly in democracy. Simple federal decrees, on the other hand, are used for less crucial administrative or organisational decisions. This structured and diversified legislative framework enables the Federal Assembly to respond effectively to Switzerland's diverse legislative needs. It reflects the country's commitment to a democratic, transparent and well-organised legislative process, ensuring that laws and regulations are appropriate to the nature and importance of the issues being addressed, while including the participation of the Swiss people in major decisions through the referendum.

Federal decree

Under article 163 of the Federal Constitution of the Swiss Confederation, federal decrees are distinguished from federal laws and ordinances. Federal decrees, although adopted by Parliament, do not always contain rules of law in the substantive sense. This means that they do not necessarily define general, abstract norms governing behaviour or establishing rights and obligations, as laws or ordinances do. Instead, federal decrees may concern specific decisions, administrative measures or directives that do not have the same scope or generality as laws. However, even if they do not contain rules of law in the material sense, federal decrees are considered to be laws in the formal sense because they are enacted by the Federal Assembly. Their adoption follows the formal legislative process and, as such, they have legal authority and must be complied with, although they do not create legal norms in the traditional sense. This distinction between rules of law in the substantive sense and legislative acts in the formal sense is important for understanding how the different categories of legislative acts are used in the Swiss legal system. It reflects the complexity and sophistication of the country's legislative system, where different types of enactment are adapted to different needs and circumstances, while maintaining a coherent and functional structure.

These decrees, although issued by the Federal Assembly, differ from federal laws and ordinances in that they do not contain rules of law in the substantive sense. They are more decision-making in nature and are used in specific and often targeted situations. Federal decrees can be used for a variety of decisions that require specific State intervention. These decisions may affect one or more specific persons, or they may concern specific situations that do not require the establishment of new generalised rules of law. For example, a federal decree could be used to allocate funds for a specific project, to respond to a unique emergency situation, or to ratify a specific international agreement. The decision-making nature of federal decrees illustrates the flexibility and adaptability of the Swiss legislative system. Whereas federal laws and ordinances establish general and abstract standards applicable to everyone, federal decrees enable Parliament to act in a targeted and specific manner. This approach ensures that the Federal Assembly can respond effectively to needs or situations that do not require the creation or modification of generalised rules of law, while maintaining coherent and effective governance.

Decisions refer to individual and concrete measures taken by the competent authorities, based on existing law. These decisions are applied to specific cases, and are distinguished from laws and ordinances by their targeted nature and their direct application to particular situations or individuals. These individual measures are taken in the context of specific cases, which means that they are specifically designed to deal with unique circumstances or problems. They are not intended to establish general standards applicable to everyone, but rather to respond to specific needs or situations that arise. For example, a decision may be an authorisation or permit granted to a company for a specific activity, a decision concerning the legal status of an individual, or a resolution of a particular case under existing laws. This type of decision-making is crucial to ensuring that the legal system can respond flexibly and appropriately to the various situations that arise, providing tailor-made legal solutions that respect the established legal frameworks. This approach also allows for flexibility in the administration of justice and the implementation of policy, ensuring that the decisions taken are relevant and effective for the specific cases to which they apply.

In the Swiss legal framework, decisions taken by the authorities are characterised by their specifically targeted and individualised nature. These decisions are distinguished from laws and ordinances by their direct application to particular cases, reflecting a tailored and precise approach to legislation and administration. The concrete nature of these decisions is illustrated by their orientation towards real and immediate situations. Unlike laws, which establish general standards, these decisions are formulated in response to specific circumstances. For example, in the context of the COVID-19 crisis, the Swiss Federal Council took concrete decisions on containment and economic support measures, each tailored to the specific needs and challenges posed by the pandemic. On the other hand, the individual nature of these decisions is evident in their targeting of specific persons or entities. The effects of these decisions are limited to the parties involved. For example, a decision may concern planning permission for a specific building project or a court ruling in a particular dispute. These decisions apply or interpret existing rules, taking into account the unique details of each case. This decision-making model ensures that the Swiss authorities can respond effectively to individual situations while respecting the established legal framework. It balances the universality of laws with the need to treat each situation according to its particularities. This approach reflects the Swiss tradition of precise and considered governance, ensuring that the decisions taken are both fair and tailored to the cases they concern.

In the Swiss legal system, certain federal decrees are considered to be of such importance that they can be submitted to a referendum, in accordance with the provisions of the Federal Constitution or legislation. This possibility of referendum reflects Switzerland's commitment to direct democracy, allowing citizens to have their say on key government decisions. Federal decrees subject to referendum are generally those that have a significant impact on society or are controversial in nature. The referendum provides a direct opportunity for Swiss citizens to have their say on these decisions, ensuring that important policies reflect the will of the people. This procedure guarantees active citizen participation in the decision-making process and strengthens the democratic legitimacy of policies and laws. For example, issues such as major changes in health policy, changes in tax legislation or decisions concerning national security can be put to a referendum, giving citizens the opportunity to play a direct role in these important decisions. This ability to submit federal decrees to a referendum illustrates the balance between executive power and the right of citizens to participate actively in the governance of their country. It is fundamental to the Swiss political system, reflecting a tradition of direct democracy and citizen participation that is central to Swiss decision-making.

The federal decree in Switzerland is a legislative instrument that enables the adoption of acts that are mainly administrative and specific decisions of the State. This includes decisions that do not require the creation of new rules of law in the general sense, but which are essential for the efficient management and regulation of certain activities or situations. A concrete example of the use of a federal decree is the granting of concessions for nuclear power plants. In this case, the federal decree would be used to grant authorisation and establish the specific conditions under which an entity may build and operate a nuclear power plant. These conditions would include aspects such as safety standards, environmental protection measures and monitoring obligations. The use of a federal decree for such decisions allows for detailed assessment and regulation tailored to the specifics of each case. Federal decrees, in this context, are an important tool for the Swiss government, as they provide the flexibility to manage specific cases while ensuring compliance with general policies and laws. This mechanism allows the Swiss authorities to take administrative and regulatory decisions in a targeted manner, ensuring that specific and often technical issues are dealt with effectively and appropriately. This approach is representative of the Swiss legal and administrative system, where the emphasis is on precision, specificity and efficiency, while maintaining a coherent legal framework and compliance with the general principles of legislation and governance.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 53

Article 53 of the Federal Constitution of the Swiss Confederation plays a fundamental role in preserving the integrity and autonomy of the cantons, which are the cornerstones of the country's federal structure. This constitutional provision provides rigorous protection for the existence, status and territory of the cantons, underlining Switzerland's commitment to balanced federalism. By guaranteeing the existence and status of the cantons and their territory, the Swiss Confederation maintains the stability and respect for regional diversity that characterise the Swiss federal system. This guarantee is essential to preserve cantonal autonomy in a country where local traditions and regional particularities are deeply rooted.

With regard to potential changes to the number or status of the cantons, the Constitution requires dual approval: that of the voters in the cantons concerned and that of the people and the cantons at national level. This requirement reflects the democratic principle that such changes must be approved not only by the populations directly affected, but also by the nation as a whole. A historical example of this procedure was the creation of the canton of Jura in 1979, which was separated from the canton of Bern after a democratic process that included a regional vote as well as national approval. Changes to a canton's territory also follow a rigorous democratic process. Following approval by the voters of the cantons concerned, the Federal Assembly intervenes with a federal decree to make the changes official. These provisions ensure that any territorial changes respect the wishes of the local populations while at the same time complying with national interests. For minor border adjustments between cantons, the procedure is simplified, allowing cantons to conclude mutual agreements for border rectifications. This mechanism provides flexibility for adjustments that may be necessary due to geographical developments or other practical considerations. Article 53 embodies the way in which Switzerland preserves national unity while respecting cantonal autonomy, a balance that lies at the heart of its federal structure. It ensures that changes affecting the cantons are made in a democratic and transparent manner, reflecting Switzerland's respect for its federal and democratic principles.

Switzerland's approach to democratic decision-making, particularly on issues of national importance such as the granting of concessions for nuclear power plants or the purchase of military equipment, illustrates its commitment to involving the people in key government processes. This method of decision-making is in line with Switzerland's tradition of direct democracy, where citizens play an active role in important national affairs. The granting of concessions for nuclear power plants, for example, is a subject with significant environmental, economic and safety implications. In Switzerland, such decisions are not taken solely by government authorities; they may also be submitted to the people for approval, especially if they give rise to significant public concern or debate. This ensures that decisions with a major impact on society are taken with the consent and participation of the people. Similarly, the purchase of military equipment, which involves significant public expenditure and strategic considerations, can also be subject to popular approval. This approach ensures that defence spending and policies reflect the will and preferences of the Swiss people. These decision-making processes, involving referendums or popular votes, are essential to maintaining the confidence and legitimacy of the government. They reflect the belief that citizens should have a say in decisions that significantly affect the nation. By directly involving the people in these important decisions, Switzerland strengthens its democratic system and ensures that the policies adopted are in line with the interests and values of its citizens.

Swiss democracy is characterised by a unique balance between centralised power in Berne and the active participation of the people and the cantons in federal affairs. This model reflects a combination of representative and direct democracy, ensuring that decisions taken at federal level both reflect the will of the people and respect regional autonomy. On the one hand, the people and the cantons delegate part of their power to the Federal Assembly and the Federal Council in Berne, where elected representatives and civil servants take decisions on national issues. This delegation is the essence of representative democracy, where voters entrust their representatives with the responsibility of legislating and governing on their behalf. On the other hand, and in a distinctive way, Switzerland attaches great importance to the direct involvement of the people in federal affairs. This participation takes the form of referendums and popular initiatives, in which citizens have the power to challenge laws passed by parliament or to propose new legislation. This form of direct democracy is a central aspect of Swiss governance, giving citizens direct and regular control over government decisions. Swiss democracy also recognises the importance of cantonal autonomy, where cantons retain significant powers in areas such as education, policing, health and other local affairs. The cantons are not simply administrative entities, but key political players with their own governments and parliaments, reflecting Switzerland's cultural, linguistic and regional diversity. This democratic structure, combining the delegation of power to Berne with the active participation of the people and the cantons, creates a robust and flexible system that is able to respond to the needs and concerns of different parts of Swiss society. It ensures that legislation and policies are not only taken into account by elected representatives, but are also subject to the scrutiny and direct approval of citizens.

Simple federal decrees

Simple federal decrees represent a specific category of legislative acts in the Swiss legal system. Unlike federal decrees subject to referendum, simple federal decrees are not subject to popular approval by referendum. They are generally used for government or administrative decisions which, although important, do not require direct consultation of the people.

A notable example of a simple federal decree is the guarantee of cantonal constitutions. When a Swiss canton revises its constitution, the new constitution must be guaranteed by the Confederation. However, this guarantee, which is granted by the Federal Assembly, does not require a referendum at national level. Its purpose is to ensure that cantonal constitutions comply with the Federal Constitution, while respecting cantonal autonomy.

Another example of the use of simple federal decrees is the adoption of the federal budget. Every year, the Federal Assembly votes on the State budget, detailing the planned expenditure and revenue. Although the budget is a crucial document reflecting political and economic priorities, it is ratified in the form of a simple federal decree, without going to a referendum.

These decrees play a vital role in Swiss governance, enabling Parliament to take essential administrative and financial decisions efficiently. At the same time, the Swiss system maintains a balance between these forms of decision-making and direct democratic participation in matters of a more far-reaching or controversial nature. This distinction between simple federal decrees and those subject to referendum illustrates how Switzerland adapts its legislative process to the nature and importance of different government decisions.

The ordinance

In the Swiss legal system, ordinances play an essential role as rules for the application or enforcement of federal laws. These ordinances, as rules of law, are designed to specify, detail or supplement the provisions contained in federal laws, thus enabling legislation to be implemented effectively and practically.

Ordinances are generally issued by the Federal Council, the executive body of the Swiss government, although some may also be issued by administrative departments or other federal authorities. They have legal force and are binding, which means that they must be complied with in the same way as laws. The main role of ordinances is to provide the technical details and practical guidance needed to apply laws. For example, a federal law may establish a general framework for environmental protection, while an associated ordinance will define specific pollution standards, monitoring procedures and penalties for non-compliance.

This hierarchy between laws and ordinances ensures that the legislative framework is both flexible and appropriate. Laws provide general principles and guidelines, while ordinances deal with more specific and technical aspects, facilitating implementation tailored to practical realities and specific needs. Ordinances are a crucial legislative tool in the Swiss legal system, providing an efficient method of detailing and applying federal laws. They ensure that legislation is not only adopted, but also applied effectively and appropriately, thereby contributing to the orderly functioning and respect for the rule of law in Switzerland.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 163


The ordinance, as a form of legislative act specified in Article 163 of the Swiss Federal Constitution, is of particular importance in the country's legal system. According to this article, the Federal Assembly, which is Switzerland's supreme legislative body, has the power to establish rules of law not only in the form of federal laws, but also in the form of ordinances. In this context, ordinances are essential for the practical implementation of federal laws. They enable the principles and general guidelines set out in federal laws to be translated into specific, detailed and operational instructions. This function is crucial to ensuring that laws are not only theoretically sound, but also effectively applicable in day-to-day reality. For example, a federal law might establish a general framework for the regulation of financial services, while the corresponding ordinances would detail specific requirements for banking licences, financial reporting standards, and compliance criteria. In this way, the ordinances provide a concrete and detailed application of the laws, addressing the technical and practical aspects necessary for their implementation.

The distinction between federal laws and ordinances reflects the methodical and hierarchical structure of the Swiss legislative system. While federal laws lay down the legislative foundations and broad policy guidelines, ordinances focus on the details and methods of implementation, offering the flexibility needed to adapt legislation to specific situations and needs. This approach ensures that the Swiss legislative framework is both robust and adaptable, capable of responding to the complex and changing demands of society and the economy, while ensuring precise and effective governance. Ordinances, as a complement to federal laws, play a crucial role in ensuring that Swiss legislation is not only comprehensive, but also relevant and applicable in practice.

Under Swiss federal law, the power to issue ordinances is divided between a number of state bodies, each with a specific role in implementing and enforcing the law. This division of powers illustrates the complexity and efficiency of the Swiss legal and administrative system. The Federal Assembly, as Switzerland's supreme legislative body, has the power to establish rules that are both substantive and formal. This means that it can create laws and ordinances that not only establish general standards applicable to society as a whole, but also do so according to a formally recognised legislative procedure. For example, the Federal Assembly has passed important laws such as the Health Insurance Act, supplemented by ordinances detailing its implementation. The Federal Council, the executive arm of government, also plays a crucial role in issuing ordinances, particularly for the practical implementation of laws. Federal Council ordinances provide precise guidelines for the application of laws in a variety of areas, from economic regulation to environmental protection. For example, in the context of environmental regulation, the Federal Council has issued ordinances specifying pollution standards and reporting requirements for companies. As for the Federal Supreme Court, although its main role is to interpret the law, it has the power to issue orders concerning procedural and administrative aspects of justice. These orders are essential to ensure the smooth running of the Swiss judicial system, by clarifying procedures and guaranteeing the efficiency of judicial administration. This system, in which various State bodies have the power to issue ordinances, ensures that federal law is implemented in a comprehensive and appropriate manner. It provides the flexibility needed to meet the specific needs and complex challenges of governance, while maintaining order and consistency in the application of the law in Switzerland.

The use of ordinances in the Swiss legal system is closely linked to the non-exhaustive nature of laws and the need to adapt legislation to practical realities. Indeed, the role of ordinances is crucial in filling gaps and specifying details that laws, often formulated in terms of broad principles, cannot cover exhaustively. The Federal Council, as the executive body of the Swiss government, plays a central role in this adaptation process. While the Federal Assembly, as the legislative body, establishes the broad outlines and fundamental principles through legislation, the Federal Council is responsible for drawing up ordinances to ensure that these laws are applied effectively and in accordance with the law. In this way, ordinances make it possible to provide the necessary clarifications and adjust legislation to specific circumstances and needs. For example, in the field of public health, the Federal Assembly may adopt a law establishing the general framework for health cover. The Federal Council then issues ordinances detailing how this law is to be implemented, such as reimbursement procedures, quality standards for healthcare services and eligibility criteria. This division of tasks between the legislature and the executive allows for a more flexible and responsive approach to governance. While the legislator establishes the general guidelines and objectives, the executive, through ordinances, ensures that these objectives are achievable and adapted to the actual conditions and challenges. This complementarity between the legislature and the executive is essential for an efficient and responsive legal and administrative system, capable of responding to the changing needs of society.

In the Swiss legal system, ordinances fall into two main categories, each fulfilling distinct and essential functions. Legislative ordinances, on the one hand, act as extensions or clarifications of formal laws passed by Parliament. Although inferior in rank to these formal laws, they have significant legal force and are binding on citizens. They are drawn up according to a specific procedure by an executive, legislative or judicial authority. A historical example can be found in the ordinances relating to banking regulation, where the Federal Council detailed operational and compliance standards for financial institutions, based on principles established by federal legislation. These legislative ordinances are published in the Official Compendium of Federal Legislation and the Systematic Compendium of Federal Law, thus guaranteeing their accessibility and transparency. Administrative ordinances, on the other hand, focus primarily on the internal organisation and procedures of the public administration. They provide guidance to civil servants and administrative bodies on how to carry out their duties and responsibilities. Unlike legislative orders, they are not published officially but are passed on internally. For example, administrative orders may detail internal procedures for processing permit applications or set out guidelines for assessing asylum claims. These documents play a crucial role in the day-to-day running of the Swiss administration, ensuring that it is managed consistently and in accordance with the policies and laws in force. The presence of these two types of ordinance in the Swiss legal system illustrates the complexity and sophistication of governance in the country. While legislative ordinances extend and clarify the scope of laws for the general public, administrative ordinances facilitate efficient and orderly administration. Together, they enable detailed and appropriate implementation of laws, while ensuring a structured and functional public administration.

Legislation in Switzerland, including ordinances, is strictly governed by respect for fundamental rights, as set out in the Federal Constitution. This means that ordinances, although important instruments for implementing laws, must not under any circumstances impede or violate the fundamental rights guaranteed by the Constitution. The Swiss Constitution establishes a framework of rights and freedoms that protect citizens, such as freedom of expression, the right to privacy, and equality before the law. All legislation, including ordinances issued by the Federal Council or other authorities, must comply with these rights. If an ordinance were to conflict with fundamental rights, it would be considered unconstitutional and therefore invalid. In addition, the Constitution imposes certain limits on what can be regulated by ordinance. This ensures that substantial changes in policy or law, particularly those that might affect fundamental rights or other important aspects of public life, are made through appropriate legislative processes, including, where appropriate, parliamentary approval and referendum. This approach reflects Switzerland's commitment to the rule of law and respect for individual rights. It ensures that, even in the effective administration and enforcement of laws, the protection of fundamental rights remains an absolute priority. So, while ordinances are essential for the day-to-day management and implementation of laws, they must always be balanced with respect for fundamental constitutional principles.

Constitution fédérale de la Confédération suisse du 18 avril 1999 - article 36

Article 36 of the Swiss Federal Constitution plays a crucial role in maintaining the balance between the fundamental rights of individuals and the requirements of public order and the general welfare. This constitutional provision emphasises that any restrictions on fundamental rights must be carefully justified, legally founded and proportionate. The legal basis for restrictions on fundamental rights is a fundamental principle of the Swiss rule of law. This means that any restrictions on these rights must be explicitly provided for by law. A historical example might be national security laws, which restrict certain rights for reasons of public security, but which must have a clear legal basis in order to be valid. The need to justify any restriction of fundamental rights by a public interest or the protection of the rights of others is also essential. This provision ensures that restrictions do not serve particular interests, but meet legitimate social needs. For example, the restrictions imposed in the context of the COVID-19 pandemic, such as confinements or masking requirements, were justified by the protection of public health.

The proportionality rule is another pillar of this provision. It ensures that restrictions are not excessive in relation to the objective pursued. In the Swiss legal framework, this means that restrictive measures must be balanced and must not go beyond what is necessary to achieve their aim. For example, censorship of the media would be considered a disproportionate restriction on freedom of expression, except in very specific and justified circumstances. Finally, the inviolability of the essence of fundamental rights is a key principle. This implies that certain fundamental characteristics of individual rights, such as the right to life or freedom of thought, are absolute and cannot be restricted under any pretext. These principles reflect the way in which Switzerland balances the protection of individual freedoms with social and governmental responsibilities, ensuring that restrictions on fundamental rights are legitimate, necessary and fair. They demonstrate Switzerland's commitment to respect for individual rights while recognising the sometimes unavoidable need for certain limitations for the common good.

The power to issue ordinances in Switzerland is framed in such a way as to respect the Constitution while allowing a degree of flexibility in the administration and implementation of laws. This ability to issue ordinances is essential to the effectiveness of government, but it must be exercised within the limits set by the country's supreme legal framework. The Swiss Constitution, as the fundamental law, determines the general principles and limits of government authority, including the ability to issue ordinances. This power is not restricted by the Constitution, but it must be exercised in accordance with its provisions. In other words, ordinances must not contradict the principles or rights set out in the Constitution. In addition, the Constitution or federal legislation may explicitly authorise the Federal Council to issue ordinances in specific areas. This delegation of power is often used to enable the Federal Council to specify technical details or to apply laws appropriately. For example, a federal law may establish a regulatory framework for environmental protection, and the Constitution or the law may then mandate the Federal Council to develop ordinances that detail specific standards, compliance procedures and penalties for non-compliance. This system ensures that ordinances, while essential for flexible and responsive governance, are issued within a clearly defined legal framework, respecting both the sovereignty of the law and constitutional principles. It also ensures that the legislative process remains transparent and accountable to the Swiss people, in line with the principles of democracy and the rule of law that lie at the heart of the Swiss political system.

The special feature of ordinances in the Swiss legal system is that they are not subject to a referendum. This distinguishes ordinances from federal laws, which can be contested and put to a popular vote. The fundamental reason for this distinction is that ordinances do not create new laws in themselves, but rather serve to implement, clarify or supplement provisions already established by federal legislation. Ordinances are generally drawn up by the Federal Council or other administrative authorities and are designed to provide detailed guidelines for the practical application of laws. For example, if a federal law is passed to regulate a certain industry, a corresponding ordinance could specify technical criteria, compliance procedures, or safety standards that companies must follow. By not subjecting ordinances to a referendum, the Swiss system balances administrative efficiency with democratic participation. While fundamental and significant laws are subject to popular consultation, the more technical and administrative aspects of their implementation can be handled more directly and quickly. This approach ensures that, while respecting the principle of direct democracy for major issues, the administration can operate efficiently and responsively, adapting and applying laws to changing needs and circumstances.

The drafting of enabling legislation for ordinances in Switzerland requires a delicate balance to ensure both legal clarity and respect for democratic principles. A well-drafted enabling act must be clear enough for citizens to understand the scope and limits of the power conferred, yet detailed enough to avoid ambiguity. A historical example of this practice can be seen in Swiss laws relating to the regulation of telecommunications. When the Swiss Parliament passed laws governing this sector, it defined the broad outlines of the policies and objectives, while leaving it to the Federal Council to detail the technical aspects through ordinances. In this context, the legislation was clear enough for citizens to understand the guiding principles, and subsequent ordinances were consistent with these principles while offering the flexibility needed to adapt to rapid technological change.

With regard to compliance with the various layers of law, the ordinances must respect the hierarchy of norms, complying not only with federal law but also with the cantonal constitutions. This is essential in order to maintain legislative coherence and respect Switzerland's federal structure. For example, in the implementation of environmental policies, ordinances must not only adhere to federal directives but also take account of the specific characteristics of the cantons, thus ensuring that they are applied effectively and in a way that respects regional particularities. Transparency and information also play a crucial role in this process. The Swiss government endeavours to communicate openly about enabling legislation and the ordinances it generates, ensuring that citizens are well informed and able to understand the implications of these legislative texts. Parliamentary debates, official publications and the media play an essential role in this communication process. Finally, the possibility of revision and control is a key principle of Swiss governance. By allowing ordinances to be reviewed on a regular basis, the Swiss legal system ensures that these texts remain relevant, appropriate to the legislative objectives and open to public scrutiny and criticism. This approach reflects Switzerland's deep commitment to a legislative process that is democratic, transparent and responsive to the needs and concerns of its citizens.

Ordinances in Swiss law occupy a unique position in the legislative hierarchy. It is considered a rule of law in the substantive sense, but is not a law in the formal sense, which distinguishes it from traditional laws passed by the Federal Assembly. This distinction is based on the nature and procedure of its adoption, as well as on the fact that it is not subject to referendum. As a rule of substantive law, the ordinance establishes concrete standards and directives for the implementation of laws. They play a crucial role in providing the detail and precision required for the practical application of the principles set out in federal laws. However, unlike laws in the formal sense, ordinances are generally issued by the Federal Council or other administrative authorities, not by Parliament. This method of drafting means that they do not go through the same full legislative process as formal laws, particularly as regards parliamentary debate and approval. A crucial aspect of ordinances is that they are not subject to referendum. This means that, although they have the force of law, Swiss citizens do not have the opportunity to challenge them directly by popular vote. This feature is justified by the fact that ordinances serve primarily to clarify and apply laws that have already been passed, rather than to establish new, independent legal principles. As such, they are seen as extensions or applications of existing legislation rather than stand-alone legislative innovations. Ordinances in Switzerland are an essential part of the legal system, providing the flexibility to adapt and apply federal laws in a detailed and contextual manner, while respecting the overall structure and principles of Swiss legislation.

Annexes

  1. ↑ Profil de Victor Monnier sur le site de l'UNIGE
  2. ↑ Publications du professeur Victor Monnier
  3. ↑ Hommage au professeur Victor Monnier - Faculté de droit - UNIGE

References

Récupérée de « https://baripedia.org/index.php?title=瑞士的国内法律框架&oldid=63828 »