The application of law

Based on a course by Victor Monnier

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Introduction to law

Introduction to the Law : Key Concepts and Definitions ● The State: Functions, Structures and Political Regimes ● The different branches of law ● The sources of law ● The great formative traditions of law ● The elements of the legal relationship ● The application of law ● The implementation of a law ● The evolution of Switzerland from its origins to the 20th century ● Switzerland's domestic legal framework ● Switzerland's state structure, political system and neutrality ● The evolution of international relations from the end of the 19th century to the middle of the 20th century ● The universal organizations ● European organisations and their relations with Switzerland ● Categories and generations of fundamental rights ● The origins of fundamental rights ● Declarations of rights at the end of the 18th century ● Towards the construction of a universal conception of fundamental rights in the 20th century

The law is made up of legal rules, but reality is made up of factual situations. The rules of law include the laws, regulations and legal principles that form the legal framework. These rules are designed to guide and regulate the behaviour of individuals and organisations in society. On the other hand, "factual situations" refer to the real, concrete and practical circumstances that arise in everyday life. These situations can vary greatly and do not always lend themselves to a simple or straightforward interpretation of existing laws.

Applying the law therefore involves interpreting and adapting the rules of law to apply them to specific factual situations. This often requires legal judgement to balance legal texts with the practical, social and human realities of each case. Judges, lawyers and other legal professionals play a crucial role in this process, ensuring that justice is done fairly and in accordance with established legal principles.

The syllogism

The legal syllogism, or subsumption syllogism, is an essential method in legal reasoning, enabling a rule of law to be applied to a factual situation. There are several stages to this intellectual process. First, it involves identifying the relevant rule of law. This rule, often derived from a statute, regulation, legal principle or case law, establishes a general proposition applicable to various situations. Next, the process requires a careful analysis of the specific facts of the situation concerned. This stage is crucial because it involves a detailed and precise understanding of the actual circumstances involved. For example, in a contractual dispute, the facts may include the terms of the contract, the actions of the parties involved and the context in which the agreement was made. The final stage is subsumption, where the facts are subsumed under the rule of law. This stage determines how the general rule applies to the particular circumstances of the case. For example, if the law states that a contract is not valid without the consent of all the parties involved, and it is established in the facts that one of the parties did not give informed consent, the judge could conclude that the contract is invalid.

The legal syllogism is therefore more than just an intellectual exercise; it is a vital tool that ensures that legal decisions are taken logically, consistently and in accordance with legal standards. This methodology not only ensures that the rules of law are applied correctly, but also helps to maintain predictability and fairness in the administration of justice.

Application of the law over time

The applicability of a law depends on its entry into force and its continuing validity. Once a law has been passed through the legislative process, it is not immediately applicable. It comes into force on a date specified in the text of the law itself or on a date determined by another regulation. This period allows individuals and institutions to prepare to comply with the new law. On the other hand, the question of repeal is also essential in determining the applicability of a law. A law remains in force until it is explicitly repealed or replaced by new legislation. Repeal may be total, where the entire law is rendered inapplicable, or partial, where only certain segments of the law are annulled. In some legal systems, there is also the concept of obsolescence, where a law may become inapplicable if it is not used or is deemed obsolete. Even after a law has been repealed, certain transitional provisions may apply. These provisions are designed to manage the transition from the old to the new regulations and to deal with legal situations that existed under the old law. Thus, entry into force and repeal are key processes that determine how and when a law applies, ensuring the stability and predictability of the legal framework.

The adoption of a law in a bicameral legislative system, where there are two separate chambers (usually a lower and an upper house), requires the approval of both chambers. The process of passing legislation involves several key stages. Initially, a bill is proposed, often by a member of the government or parliament. This bill is then debated and examined in one of the chambers, where it may be amended. After this first stage of debate and approval, the bill moves on to the other chamber. Again, it is subject to debate, and further amendments may be made. For a law to be passed, it must be accepted in its final form by both houses. This often means a back-and-forth process between the chambers, especially if changes are made in one chamber that require further approval by the other. This process ensures a careful review and balanced consideration of the bill. Once both chambers have approved the text in the same version, the bill is considered adopted. Depending on the specific political system, the next step may be sanction or approval by the head of state (such as a president or monarch), after which the bill becomes law and is ready to enter into force on a specified date or according to the provisions of the law itself. This bicameral adoption process aims to ensure thorough scrutiny and diverse representation in the creation of legislation, reflecting the different interests and perspectives within society.

In the context of the Swiss legislative system, the enactment of a law is an essential process that follows its adoption. This stage marks the transition from a bill to an officially recognised and applicable law. The enactment process in Switzerland is distinguished by its incorporation of direct democracy and reflects the country's fundamental democratic principles. On the one hand, when important laws, such as constitutional amendments or those subject to mandatory referendum, are at stake, promulgation follows a particular procedure. After a proposed law has been approved by the Swiss people in a referendum, the Federal Council, acting as the executive body, officially validates the result of the referendum. This happens, for example, in the case of constitutional amendments where the Swiss people play a direct role in decision-making. Validation by the Federal Council marks the promulgation of the law, indicating that it is ready for implementation. On the other hand, for ordinary laws that do not require a referendum, promulgation occurs after the expiry of a referendum deadline. During this period, citizens have the opportunity to challenge the law by collecting enough signatures to request a referendum. If no referendum is requested by the end of the deadline, the Federal Chancellery, acting as the central administrative body, officially promulgates the law. This stage confirms that the law has been adopted in accordance with democratic processes and that there are no major legal obstacles to its coming into force. Promulgation in Switzerland therefore illustrates a unique blend of representative and direct democracy, ensuring that laws are not only passed by elected representatives but also, in some cases, directly approved by the people. This approach enhances the legitimacy and acceptance of laws, ensuring that the Swiss legal framework is in harmony with the will of its citizens.

The publication of a law in the Official Compendium is an essential step in the legislative process, particularly in the context of the Swiss legal system. The main purpose of publication is to make the law accessible and known to everyone, which is a fundamental principle of law: for a law to be applicable, it must be publicly accessible and known to the people it affects. The Official Compendium, as a chronological publication, contains legislative texts in the order in which they were enacted. This publication not only disseminates legislative information to the general public, but also serves as an official reference for legal professionals, government institutions and citizens. Publication in the Official Compendium guarantees the transparency of the legislative process and enables all players in society to follow developments in the legal framework. By making laws easily accessible, the Official Compendium helps to ensure that citizens and legal entities are informed of their rights and obligations. This is crucial to the principle of legality, which stipulates that no one is supposed to ignore the law. The official publication of laws therefore plays a fundamental role in maintaining legal order and promoting justice and predictability in society.

The Swiss legal system has two official publications that play a crucial role in the dissemination and organisation of federal law: the Official Compendium (OR) and the Systematic Compendium (SC). These two collections have distinct characteristics and objectives, reflecting the different ways in which the law can be consulted and analysed. The Official Compendium, abbreviated RO, is a chronological publication. It brings together legal texts in the order in which they were promulgated. This means that laws, ordinances and other legal texts are published in the order in which they came into force. This chronological approach is particularly useful for tracking legislative developments and understanding the historical context in which a law was passed. The RO is therefore essential for legal professionals and researchers interested in legislative history and the sequence of legislative changes. The Recueil systématique, known by the acronym RS, is organised by subject. Instead of following chronological order, the RS groups legal texts by subject area or theme, such as family law, commercial law or criminal law. This thematic organisation makes it easier to find and access legal texts for people seeking specific information on a particular subject. The RS is therefore a valuable tool for legal practitioners, students and anyone who needs to consult the relevant laws in a specific field quickly and efficiently. These two collections offer a comprehensive view of Swiss federal law, each from a different angle. The RO provides a historical and sequential overview, while the RS offers an organised and thematic perspective. Together, they ensure that Swiss federal law is accessible, comprehensible and usable for a wide range of users, from legal professionals to ordinary citizens.

The Swiss Federal Gazette plays a distinct and complementary role in the legislative publication system. As a weekly publication available in the country's three official languages (German, French and Italian), its main objective is to provide up-to-date information on legislative and government activities. Unlike the Official Compendium, which focuses on the publication of enacted laws, the Federal Gazette concentrates on the initial and intermediate phases of the legislative process. It provides information on new laws passed by Parliament, with an emphasis on the referendum deadline. This is crucial in the Swiss democratic system, where citizens have the opportunity to request a referendum on recently adopted laws. Publication in the Federal Gazette triggers the start of this referendum deadline. In addition to notifying the public and stakeholders about referendum deadlines, the Federal Gazette also serves as a means of communication to inform parliamentarians and the public about current bills and legislative debates. It may include reports, press releases, government announcements and other information relevant to the legislative process. The Federal Gazette is therefore an essential tool for government transparency and democratic participation in Switzerland. It enables citizens and parliamentarians to keep abreast of legislative developments and facilitates the exercise of democratic rights, such as referendums, by ensuring that the necessary information is widely available and accessible.

Coming into force of the law and its repeal

The law comes into force

The entry into force of a law is the point at which it becomes binding and applicable. In the Swiss legal system, the process by which a law comes into force is generally defined either by the legislative text itself or by a decision of the Federal Council. When a law is passed by Parliament, it may specify directly in its text the date on which it will come into force. This is common practice for laws whose application requires advance preparation, allowing individuals, businesses and government bodies to adapt to new legal requirements. In cases where the law does not explicitly state when it will come into force, the Federal Council, the executive body of the Swiss federal government, is responsible for setting the date. The Federal Council takes this decision taking into account various factors, such as the need to allow sufficient time for implementation, the practical implications of the law, and coordination with other legislation or policies in force. The entry into force of a law is an important milestone, as it is at this point that the legal provisions become binding and the legal consequences of non-compliance apply. This underlines the importance of communicating and publishing laws, such as through the Federal Gazette and the Official Compendium, to ensure that all stakeholders are informed and ready to comply with new regulations. By setting the date of entry into force, the Federal Council plays a key role in ensuring a smooth transition to the application of the new legal standards.

The process of creating and applying a law in legal systems such as Switzerland's is a structured and meticulous one, beginning with the adoption of the law by Parliament. This first phase sees a bill debated and amended by elected representatives in a bicameral context, where two chambers scrutinise the content and relevance of the proposed legislation. A concrete example might be the adoption of a new environmental law, where Parliament discusses its implications and adjusts its provisions to address environmental and economic concerns. Once Parliament has adopted the law, it is promulgated. This formal step, often carried out by the Federal Council in Switzerland, is an official recognition of the law. Promulgation is a signal that the law has met all the necessary criteria and is ready to be communicated to the public. For example, a law enacted on road safety would be officially announced, indicating its importance and imminent validity. Publication follows enactment. The law is made available in an official compendium, enabling all citizens and interested parties to become acquainted with it. Publication ensures that the law is transparent and accessible, as in the case of new tax regulations, where the precise details and implications for citizens and businesses must be clearly communicated. Finally, entry into force is the stage at which the law becomes applicable. The date of application may be specified in the text of the law or determined by the Federal Council. This stage marks the point at which the provisions of the law must be respected and followed. Take the example of a new data protection law: once it has come into force, companies and organisations must comply with the new standards for managing personal data. This process, from adoption to entry into force, ensures that each law is carefully examined, validated and communicated, reflecting democratic and legal principles, while guaranteeing that citizens are well informed and prepared for future legislative changes.

Repeal of the law

Repeal, in the legal context, is a process by which a legislative act is annulled or suppressed by a new act of the same or higher rank. The act may be repealed in its entirety or only in part. Once repealed, the legislative act ceases to produce legal effects, which means that it is no longer applicable and can no longer be invoked in judicial decisions or legal transactions.

This concept of repeal is fundamental in law and is encapsulated in the Latin adage "Lex posterior derogat priori", which translates as "the later law derogates from the earlier law". This means that in the event of a conflict between two laws, the more recent law generally prevails over the earlier law. This adage is a key principle of the hierarchy of norms in law, ensuring that the legal system remains coherent and up to date. A concrete example of repeal might be the introduction of new privacy legislation that replaces and overrides an earlier law on the same subject. The new law, once enacted and in force, would render the previous law obsolete and inapplicable.

Repeal is an important tool for legislators, ensuring that the body of law remains adapted to changes in society, technological change and new ethical and moral standards. It also makes it possible to repeal laws that have become redundant or have been deemed inappropriate or ineffective. In short, repeal is essential to maintain a dynamic and responsive legal system, capable of responding to the changing needs of society.

The principle of non-retroactivity of the law

The principle you describe is closely linked to the notion of non-retroactivity of laws, a fundamental concept in law. According to this principle, a new legal norm must not retroactively affect situations that arose under the aegis of a previous rule. This means that a law cannot be applied to situations, acts or facts that occurred before it came into force.

This principle of non-retroactivity is rooted in the declarations of fundamental rights dating back to the 18th century. An emblematic example is Article 9 of the Virginia Declaration of Rights of 12 June 1776, as well as Article 8 of the Declaration of the Rights of Man and of the Citizen of 26 August 1789. These fundamental texts, which stemmed from the beginnings of the modern era of human rights, laid the foundations for legal protection against the retroactivity of laws, particularly in the criminal field. Article 8 of the Declaration of the Rights of Man and of the Citizen, adopted at the time of the French Revolution, clearly states that only necessary penalties can be established and that a person can only be punished under a law that was in force at the time the act was committed. This provision is intended to ensure fair justice and protect citizens against the arbitrary application of the law. Similarly, Article 9 of the Virginia Declaration of Rights, a precursor to the American Constitution, reflects these same values of justice and legal predictability. These principles were revolutionary at the time and have greatly influenced the development of modern legal systems. The principle of non-retroactivity, as formulated in these historic documents, is a pillar of the rule of law. It ensures that individuals are not subject to laws that did not exist at the time of their actions, thereby providing protection against ex post facto legal changes that could alter the legal consequences of their actions. This principle strengthens confidence in the legal system, as it assures citizens that laws will not be applied arbitrarily or unfairly.

This principle is essential to guarantee legal certainty and the predictability of the law. It protects individuals against the retroactive application of legislative changes, particularly in cases where such application could be prejudicial or unfair. In practice, this ensures that individuals cannot be held liable under a law that did not exist at the time the action or event occurred. The non-retroactivity of laws is a pillar of justice and fairness, ensuring that individuals are not penalised by unpredictable and sudden legislative changes. This principle helps to maintain confidence in the legal system and to protect the fundamental rights of individuals.

Déclaration des droits de l’homme et du Citoyen du 26 aout 1789 - Article 8

Article 2 of the Swiss Criminal Code is a perfect example of how to implement the principle of non-retroactivity of laws, while incorporating an important exception in favour of the accused. This article sets out the rules for applying the Code in terms of temporality and jurisdiction.

Code pénal suisse - article 2

The first part of the article stipulates that anyone who commits a felony or misdemeanour after the entry into force of the Penal Code shall be judged in accordance with its provisions. This directly reflects the principle of non-retroactivity, stating that actions are assessed according to the law in force at the time they were committed. This ensures that individuals will not be judged according to laws that did not exist at the time of their actions, thus ensuring a fair and predictable application of the law. The second part of the article introduces a notable exception to the principle of non-retroactivity, known as "milder criminal law". Under this provision, if a crime or misdemeanour was committed before the entry into force of the Criminal Code but the perpetrator is not brought to trial until after that date, and the provisions of the new Code are more favourable to the accused than the previous law, then the new Code applies. This exception is an example of the tendency of legal systems to favour interpretations and laws that benefit the accused, an approach that reflects the principle of the presumption of innocence and the desire to avoid unjustly harsh penalties. Article 2 of the Swiss Criminal Code illustrates the complexity and nuance of the principle of non-retroactivity, balancing the need for predictable justice with the principles of fairness and equity for the accused.

There is an important nuance in the application of the principle of non-retroactivity in criminal law, particularly in relation to the doctrine of 'milder criminal law'. This doctrine constitutes a notable exception to the general rule of non-retroactivity, as you mentioned in the context of Article 2 of the Swiss Criminal Code. According to this doctrine, if a new criminal law is more lenient or more favourable to the accused than the old law in force at the time the offence was committed, the new law can be applied retroactively. This exception is based on the principle of fair justice and aims to ensure that the accused benefits from the most lenient legislation possible. This approach reflects an orientation towards protecting the rights of the accused in the legal system. It is based on the idea that justice must not only be fair and predictable, but also adapted to avoid excessively harsh punishments. In practice, this means that if a law is changed between the time of the offence and the time of sentencing, and this change is advantageous to the accused, the change must be applied. This derogation from non-retroactivity demonstrates the adaptability and sensitivity of criminal law to the fundamental principles of human rights. It is essential to maintain a balance between the strict application of the law and the need for justice to take account of changing circumstances and evolving social and legal norms.

Convention européenne des droits de l’Homme - article 7

Article 7 of the European Convention on Human Rights embodies a key principle in criminal law, that of the legality of offences and penalties. This principle states that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. This provision plays a crucial role in protecting individual rights and preserving fair justice. This principle ensures that laws are formulated in a clear and accessible way, enabling citizens to understand the legal consequences of their actions. For example, if an individual commits an act that is not defined as a crime at the time of its commission, they cannot be retroactively prosecuted if that act is subsequently criminalised. This approach protects citizens from arbitrary or unpredictable changes in the law, ensuring that no one is penalised for acts that were not illegal at the time they were carried out.

Article 7 also reflects the commitment of democratic systems to the non-retroactivity of criminal laws. It prevents governments from applying new criminal laws to past actions, a practice that would not only be unjust but also contrary to fundamental principles of justice. This protection against the retroactive application of criminal laws is essential for public confidence in the legal system and for the foreseeability of the law. Finally, this provision of the European Convention on Human Rights serves as a safeguard against the abuse of legislative power. It prevents states from punishing individuals for behaviour that was not considered criminal at the time it was committed, thereby protecting citizens against arbitrariness and abuse of power. Article 7 not only guarantees the clarity and precision of criminal laws; it is also a pillar of the protection of fundamental rights, ensuring that justice is administered in a fair and predictable manner.

Transitional provisions

Transitional law, often embodied in transitional provisions in legislation, plays a crucial role in the process of legislative change. These provisions are special rules of law, designed to be temporary and to facilitate the transition from old to new legislation. They take account of the need for individuals, businesses and government institutions to adjust and adapt to changes in legislation. These transitional provisions serve several essential purposes. Firstly, they provide a period for adaptation, allowing the parties concerned to gradually comply with the new requirements without major disruption. For example, if a new law imposes stricter environmental standards, transitional provisions could give companies time to comply with the new regulations, thus avoiding abrupt or destabilising economic consequences.

Secondly, transitional provisions help to avoid or mitigate retroactive legal effects. They may, for example, specify that certain parts of the new law will not apply to situations already in progress on the date it comes into force. This can be crucial in areas such as tax or contract law, where parties need clarity about how new laws affect existing agreements or past tax obligations. In addition, transitional law can also be used to clarify situations where the provisions of old and new legislation might conflict, by establishing guidelines as to which law applies in specific circumstances. In this way, transitional law is an important tool for ensuring a smooth legislative transition. It helps to preserve legal stability and to ensure that legislative changes are implemented fairly and effectively, without unforeseen or disproportionate consequences.

The application of law in space

The application of law in space, often referred to as private international law or conflict of laws, is a complex area that deals with how laws are applied in situations involving foreign or cross-border elements. This area of law is becoming particularly relevant in an increasingly globalised world, where individuals, goods, services and capital easily cross national borders. The fundamental principle of private international law is to determine which jurisdiction has jurisdiction and which national law is applicable in cases involving several legal systems. For example, if a contract is signed in one country but is to be performed in another, private international law helps to resolve questions such as: which country has jurisdiction to hear the dispute? Which national law should be applied to govern the contract?

To resolve these questions, lawyers rely on rules and principles to determine the applicable law. These rules include, but are not limited to, the law of the place where the contract was signed (lex loci contractus), the law of the place where the obligation is to be performed (lex loci solutionis) or the law of the place with which the case has the closest connection. In addition to national legislation, international conventions and treaties also play an important role in the application of the law in space. For example, the Hague Convention on the Civil Aspects of International Child Abduction establishes procedures for the return of children abducted abroad. Applying the law across borders therefore requires a thorough understanding not only of national laws but also of international rules and conflict-of-law principles, thus ensuring that cross-border cases are handled fairly and consistently.

Principle of the territoriality of law

The principle of the territoriality of law is a cornerstone of international law, affirming that a state's legislation is applicable only within its territorial borders. This concept underlines the sovereignty of each State to establish and enforce its own laws, thus recognising the autonomy and independence of nations in the management of their internal affairs. According to this principle, an individual or entity is subject to the laws of the country in which it is located. For example, an Italian citizen, when in Italy, is governed by Italian laws, but when travelling to Spain, becomes subject to Spanish laws. This rule is essential for legal coherence and predictability, ensuring that individuals know the laws to which they are subject and that states maintain their legislative authority within their territory.

However, the territoriality of the law is not without its complexities and exceptions. In the field of international criminal law, for example, certain serious crimes such as war crimes and genocide can be prosecuted under the principle of universal jurisdiction, which allows a State to try such crimes regardless of where they were committed. This exception reflects an international recognition that certain acts are so damaging to world order that they cannot be limited by territorial borders. In addition, with the advent of digital technology and economic globalisation, certain laws, particularly those relating to cyber security, intellectual property and financial regulations, may have extraterritorial implications. For example, data protection laws, such as the European Union's General Data Protection Regulation (GDPR), can affect companies located outside the EU if they process data from EU citizens.

The principle of territoriality of law, which states that any person or thing located in a country is governed by the law of that country, is a fundamental concept in international law. This principle reinforces the idea that each State has sovereignty over its territory, enabling it to exercise legislative authority over the persons, goods and activities located there. This implies that national laws are the primary norms governing conduct and relationships within a state's borders. However, there are notable exceptions to this principle, especially in the area of public law, where the exercise of public power is concerned. One of the most significant exceptions is that relating to diplomats. Foreign diplomats and the staff of diplomatic missions enjoy a special status under international public law, in particular in accordance with the 1961 Vienna Convention on Diplomatic Relations.

Under this convention, diplomats are granted immunity from the criminal, civil and administrative jurisdiction of the host country. This means that they are not subject to the same laws as ordinary citizens or residents of the host country. For example, a diplomat accredited in France is exempt from French jurisdiction for most acts performed in the exercise of his or her official duties. This immunity is intended to ensure that diplomats can carry out their duties without fear of interference or persecution from the host country, thereby facilitating international relations and communication between states. This exception for diplomats illustrates how the principles of public international law can prevail over the principle of territoriality of law. It underlines the need to balance national sovereignty with the requirements of the harmonious functioning of international relations.

Principle of the extraterritoriality of foreign diplomats

The principle of extraterritoriality of foreign diplomats is a key concept in international law, playing a vital role in maintaining effective and harmonious diplomatic relations between nations. According to this principle, although diplomats and embassies are physically located in a host country, they are not subject to the jurisdiction of that country, but rather to that of their own State. This rule is fundamental to ensuring the independence and security of diplomatic missions. Diplomatic immunity, which is an application of this principle, offers diplomats protection from prosecution in the host country. This immunity extends to both criminal and civil proceedings, ensuring that diplomats can carry out their duties without fear of interference. For example, if a diplomat commits a traffic offence in the host country, he or she cannot be subject to the same legal proceedings as local citizens.

Extraterritoriality also confers on embassy premises a kind of "sovereign territory" of the State they represent. This means that embassy premises cannot be searched or seized by the host country's authorities without the embassy's consent, providing a safe haven for diplomats and allowing them to conduct sensitive business without outside interference. It is important to note that, although diplomats benefit from extraterritoriality, they are still obliged to respect the laws of their own country. They are also encouraged to respect the laws and regulations of the host country, in accordance with the principles of the 1961 Vienna Convention on Diplomatic Relations. This convention establishes the international standards governing diplomatic activities and aims to promote international cooperation within a respectful and secure framework. This approach to extraterritoriality is crucial to the functioning of international relations. It ensures that diplomats can carry out their official duties effectively, while maintaining mutual respect and sovereignty between countries. By balancing the needs of national sovereignty and international cooperation, the principle of exterritoriality contributes significantly to the stability and effectiveness of diplomatic relations around the world.

The principle of exterritoriality is effectively applied in the context of aviation, where an aircraft is considered to be an extension of the territory of the State whose flag it flies. This means that, even when an aircraft is in international flight or on the territory of another country, it is subject to the laws and jurisdiction of the State under which it is registered. This concept is an extension of national sovereignty over airspace and is essential for the regulation and management of international air traffic. When an aircraft registered in a particular country crosses international airspace or lands in another country, the laws of the aircraft's country of origin continue to apply on board. For example, if an incident occurs on board an aircraft registered in France, whether in international airspace or on the ground of another country, it is generally dealt with under French law. This principle ensures a certain consistency and uniformity in the application of laws on board aircraft, which is crucial given the international nature of air transport. However, this rule is subject to certain limitations and exceptions. In particular circumstances, such as serious crimes committed on board or situations that threaten the safety of the country where the aircraft lands, local authorities may intervene and apply their own legislation. In addition, international agreements such as the 1963 Tokyo Convention and the 1971 Montreal Convention lay down specific rules concerning the jurisdictions and laws applicable on board aircraft.

The interpretation of law

Interpreting legal rules is a complex and nuanced intellectual process, essential for determining and clarifying the true meaning of legislative and regulatory texts. This practice is essential in the legal field, as laws are not always explicit or exhaustive in their wording, leaving room for diverse interpretations.

There are several approaches to legal interpretation. One common method is literal interpretation, where the focus is on the ordinary meaning of the words used in the law. For example, if a law prohibits "driving at high speed", the literal interpretation will seek to define what exactly "high speed" means on the basis of ordinary language. However, literal interpretation may not always be sufficient or appropriate. Consequently, lawyers often turn to teleological interpretation, which seeks to understand the purpose or intention behind the law. For example, in the case of environmental legislation, teleological interpretation considers the overall objective of protecting the environment to guide the application of the law.

Systematic interpretation is another important method, which examines the law in the context of the overall legal system. This involves considering how a specific law fits with other laws or with established legal principles. In addition, historical interpretation can be used, particularly in complex cases. This approach takes into account the historical circumstances and legislative debates that preceded the adoption of the law, thus providing insight into the intentions of the legislators. Judges play a crucial role in interpreting legislation, particularly when faced with cases where the law must be applied to specific and sometimes novel situations. Their interpretation has a direct impact on the application of justice, illustrating the vital importance of this practice in maintaining legal order and achieving fair justice in society.

The reality of the application of the law in the life of society effectively highlights the rarity of situations where the law perfectly coincides with the facts. This observation highlights the constant need to interpret the rules of law. Despite their careful wording, legislative texts cannot anticipate all the nuances and complexities of real-life situations. The facts of life in society are extremely diverse, and each case may present unique particularities that are not explicitly covered by existing laws. This diversity of situations makes interpretation not only inevitable, but also essential to ensure that the law is applied fairly and effectively. For example, in the context of a contractual dispute, the terms of a contract may seem clear, but their application to a specific case may require extensive interpretation to understand the intentions of the parties and the context in which the agreement was made. Interpretation also becomes crucial when a law is vague or general in its wording. In interpreting the law, judges seek to give it a meaning that is both faithful to the intention of the legislature and adapted to the particular circumstances of the case in question. This task of interpretation requires a thorough understanding not only of the law itself, but also of wider legal principles and the social and historical context. Ultimately, interpretation is an indispensable component of the legal system, bridging the gap between the letter of the law and the complex and changing reality of life in society. It ensures that the law remains relevant, fair and adapted to the diverse needs and challenges of society.

Interpreting the law is a complex task that involves a variety of players, each bringing a specific perspective and expertise. At the heart of this process are judges, who play an essential role as the principal interpreters of the law. In their judicial role, they analyse and apply the law to the cases before them. Their decisions are not limited to resolving individual disputes; they often set precedents that guide future interpretation of the law. For example, Supreme Court decisions in many countries have a lasting impact on the understanding and application of the law. At the same time, doctrine, which encompasses the work of academics, lawyers and jurists, plays an advisory but influential role in the interpretation of the law. Although their analyses and commentaries are not legally binding, they offer in-depth perspectives that can inform and influence legal reasoning. Academic articles or expert commentaries on specific legislation, for example, can provide arguments and interpretations that are then used by judges in their decisions. Finally, the legislature, the entity responsible for creating laws, holds the power of authentic interpretation. When the legislature intervenes to clarify or amend a law, this intervention is considered definitive, as it comes from the authority that created the law. This form of interpretation may be necessary when laws are ambiguous or incomplete. For example, a parliament may pass new legislation or an amendment to clarify a legal provision that was previously vague or open to different interpretations. Each of these players - judges, academics and legislators - makes a unique contribution to the interpretation and application of the law. Their interaction and mutual influence ensure that the law remains dynamic, adaptive and relevant to the changing challenges and complexities of modern society.

Gaps in the law

Gaps in the law are an inevitable phenomenon in any legal system, resulting from the difficulty, if not the impossibility, for the legislator to foresee all possible situations when drafting legislation. These gaps arise when real situations arise that are not explicitly covered by existing legislation, creating areas of legal uncertainty. There are two types of gaps in positive law: voluntary gaps and involuntary gaps. Voluntary gaps occur when the legislature deliberately chooses not to regulate a certain matter or situation, leaving it to the discretion of judges or other resolution mechanisms. For example, in certain areas of law, the legislature may intentionally leave vague terms or concepts open to interpretation to allow for flexibility in the application of the law.

On the other hand, unintended gaps occur when the legislature, without any particular intention, fails to address an issue or situation that was not contemplated when the law was drafted. These gaps may become apparent with the evolution of society, the emergence of new technologies or new situations. For example, the advent of the Internet and social media has created numerous legal challenges that were not anticipated by traditional laws on communication and privacy. When such gaps arise, it is often up to judges to fill them by interpreting existing law to apply to the new situation. This process may involve extending existing principles to new circumstances or applying analogies with legally regulated situations. In some cases, the recognition of a gap may lead the legislature to intervene to fill the gap through new laws or amendments.When creating a law, the legislature cannot foresee all the actual cases that may arise. If the situation is not mentioned by the legislator, there is a gap in the positive law. This gap may or may not be intentional.

Interpreting the law in the presence of gaps, i.e. when the existing rules do not cover a given situation, requires the use of specific methods of interpretation. These methods aim to fill legal gaps and provide solutions for cases that are not explicitly covered by existing legislation. One of the methods commonly used is interpretation by analogy. This approach involves applying to the situation not covered an existing rule that governs similar cases or shares fundamental principles with the situation in question. For example, if a new form of commercial contract emerges that is not explicitly covered by existing contract law, a judge may look for rules applicable to similar forms of contract and apply them by analogy. Another method is teleological interpretation, which focuses on the intention or objective of the legislature. This method seeks to determine the underlying purpose of existing laws and to extend their application so as to achieve that purpose in the case not covered. For example, if a law aims to protect online privacy, this intention can be used to interpret the law to cover new technological scenarios not explicitly provided for in the statute.

In some legal systems, general principles of law also play an important role in filling gaps. These principles, which represent the conceptual foundations of the legal system, can serve as a guide for interpretation and decision-making in situations not explicitly regulated by law. Finally, in some cases, gaps may prompt the legislature to intervene and create new laws or amend existing laws to deal explicitly with the situation not covered. This is often the case in rapidly evolving fields such as technology or the environment, where new challenges regularly emerge. Overall, interpreting the law in the presence of gaps requires a combination of creativity, analytical rigour and a thorough understanding of legal principles, to ensure that the decisions taken are fair, reasonable and in keeping with the spirit of the legal system.

The intra legem gap (in the law)

The concept of an intra legem lacuna refers to a particular situation where a law, intentionally or not, leaves room for the judge's discretion, often due to the use of vague, unknown or indeterminate terms. This form of lacuna is distinguished by the fact that the legislature, recognising the complexity and diversity of real-life situations, deliberately leaves certain aspects of the law open to interpretation. In these cases, the legislature leaves it to the judge's discretion to determine how the law should be applied in specific situations. For example, a law may use terms such as "reasonable", "fair" or "in the public interest", which are not strictly defined. These terms give the judge some latitude to interpret the law according to the particular circumstances of each case.

This approach recognizes that the legislature cannot anticipate all the particular situations and nuances that may arise. By leaving certain terms open to interpretation, the legislature allows judges, who are directly confronted with the specific facts of each case, to use their expertise and judgment to apply the law in the fairest and most appropriate manner. The intra legem lacuna is therefore an important element of the law that reflects the necessary flexibility in the application of the law. It allows the legal system to adapt to individual cases while remaining faithful to the general intentions and objectives of the legislature. This flexibility is crucial to ensuring that justice is done not only according to the letter of the law, but also according to its spirit.

Code des obligations - article 44

Article 44 of the Swiss Code of Obligations is an illustrative example of referral to the judge by the legislator, where certain formulas are used to confer discretionary power on the judge in the application of the law. This article shows how the legislator can intentionally leave the judge room for manoeuvre to take account of the particular circumstances of each case.

In the first paragraph of section 44, the judge is given the power to reduce damages, or even not to award damages, according to specific criteria. These include situations where the injured party has consented to the injury or where facts for which it is responsible have contributed to the injury. This provision allows the judge to take into account the nuances and shared responsibilities in situations of damage. The second paragraph goes further by allowing the judge to equitably reduce damages in cases where the injury was not caused intentionally or by gross negligence, and where full reparation would expose the debtor to hardship. This clause gives the judge the necessary latitude to assess the economic consequences of the reparation on the debtor and to adjust the damages accordingly.

These provisions illustrate the legislature's recognition of the complexity of legal situations and the need to allow a degree of flexibility in resolving them. By entrusting the judge with the task of interpreting and applying the law in a way that is appropriate to each situation, the Swiss Code of Obligations demonstrates an approach to the law that values fairness and taking individual circumstances into account. This demonstrates the trust placed in the judiciary to show discernment and adaptability in the application of legal principles.

Code civil suisse - article 4

Article 4 of the Swiss Civil Code highlights the concept of the judge's discretion, a crucial element in the application of the law. This provision illustrates how the legislator recognises and frames the role of the judge in interpreting and applying the law, taking into account the unique nature of each case. According to this article, the judge is not only required to apply the rules of law strictly, but also to exercise his or her judgment in accordance with equity when the law permits or requires it. This occurs in cases where the law itself expressly grants the judge the power to take account of the particular circumstances of a case or "just cause". For example, in family or child custody cases, the judge may have to make decisions that depart from the strict application of the law to best protect the interests of the child, based on the specific circumstances of the case.

This discretionary power is fundamental to ensuring that justice is adaptive and personalised. It recognises that legal situations are not always black and white and that rigid application of the law can sometimes lead to unfair or inappropriate outcomes. By entrusting the judge with the power to apply the law in a flexible manner, the Swiss Civil Code allows for an interpretation and application of the law that is both fair and adapted to the complex and diverse realities of life in society. This article reflects the confidence of the Swiss legal system in the discernment and competence of its judges, enabling them to use their expertise to achieve the fairest and most appropriate outcome in each case. Ultimately, the judge's discretion is an essential tool for ensuring that justice is not just a mechanical application of the law, but also a careful consideration of fairness and justice in each particular situation.

The praeter legem gap (beyond the law)

The praeter legem gap, or gap beyond the law, represents a situation where the legislator, often unintentionally, leaves a legal vacuum by not providing any legal provision for a specific situation. This form of lacuna occurs when cases arise that were not envisaged or taken into account by the legislator when drafting the law, leading to the absence of rules or guidelines on how to deal with them. Unlike the intra legem gap, where the legislator intentionally leaves a certain degree of interpretation open, the praeter legem gap is typically unanticipated and results from a lack of foresight or recognition of future developments. Such gaps can be particularly prevalent in rapidly evolving areas, such as technology, where new situations can arise faster than the legislative process is able to regulate them.

For example, legal issues relating to artificial intelligence, online data privacy or the implications of genome editing are areas where praeter legem gaps may be present. In these cases, there is no specific legal framework to guide the application or interpretation of the law. When a praeter legem gap is identified, judges may use various methods to fill the gap. They may rely on general principles of law, on analogies with similar situations regulated by law, or on considerations of equity and justice. In some cases, the recognition of such a gap may stimulate the legislative process, prompting the legislature to draft new laws or amend existing laws to deal explicitly with the situation in question.

Code civil suisse - article 1

Article 1 of the Swiss Civil Code provides a clear illustration of how the legal system deals with situations where existing law does not cover a specific situation. This legal provision highlights the methodology and flexibility required to interpret and apply the law. According to the first paragraph of this article, the law is supposed to govern all matters that fall within the scope of its provisions, either explicitly by their letter or implicitly by their spirit. This means that the judge must first seek a solution within the framework of existing legislation, by interpreting the law not only according to its text but also according to the intention and purpose of the legislature. For example, in a contractual dispute, the judge would seek to apply the principles of contract law as set out in the Code, while taking into account the general intention of the legislature regarding contractual agreements.

Where no specific statutory provision is applicable, the second paragraph of the Swiss Civil Code empowers the judge to turn to customary law. In the event that even customary law is inapplicable, the judge is then invited to act as if he were the legislator, establishing rules for the given situation. This approach gives the judge considerable latitude to develop legal solutions based on the fundamental principles of justice and equity. This could happen, for example, in cases involving new or emerging technologies where neither law nor custom provides clear guidance. Finally, the third paragraph guides the judge towards solutions already established in doctrine and case law. In the absence of applicable laws or customs, the judge should consider academic legal analyses and interpretations, as well as judicial precedents. This may include examining expert commentaries on similar cases or analysing past court decisions in comparable situations. Article 1 of the Swiss Civil Code thus demonstrates the importance of flexible and considered legal interpretation, enabling judges to respond effectively to legal gaps and adapt to changing circumstances in society. This provision ensures that the law remains dynamic and capable of responding to the ever-changing needs of individuals and society.

Annexes

• Code civil suisse
• Déclaration des Droits de l'Homme et du Citoyen de 1789
• Convention européenne des droits de l’Homme

• Déclaration de Virginie : étude de texte
  • version originale
  • version française