|Cours||Introduction to law|
- The definition of law
- The State
- 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 State Confederation from the 13th century to 1798[modifier | modifier le wikicode]
Switzerland before 1798 is composed of the Thirteen Sovereign States and is surrounded by many allied territories including Geneva, Neuchâtel, the Valais and the Prince Abbot of St. Gallen. The allied and sovereign cantons have different regimes, as in Obwalden and Appenzell, where the people make the important decisions themselves. There are oligarchic regimes like Basel and Fribourg, but also monarchical regimes such as in Neuchâtel or ecclesiastical monarchical regimes such as in Valais.
In addition to these sovereign territories, there are subject, i.e. non-sovereign territories, following the example of Geneva, which is a sovereign city, but whose countryside is subject to (territories subject to one or more cantons). For example, the country of Vaud is subject to the canton of Berne, Ticino is subject to several cantons as are Aargau and Thurgau.
To settle inter-cantonal affairs, there is an annual conference called the Confederal Diet where each canton and its allies are gathered. Decisions are taken unanimously. The thirteen sovereign cantons and a number of allies are represented. This together forms the Swiss body and each canton enjoys independence from each other.
Despite social and religious conflicts, for five centuries these different sovereign states have remained united around four common denominators:
- protect against the outside world;
- to maintain peace and public order between them;
- defend their rights and freedoms;
- promote prosperity (money interest alliance).
The consensus rule applies, decisions are taken unanimously because everyone benefits.
Until the 16th century, there were only 4 conflicts and 3 wars.
What kept the Swiss together?
There is no constitution, but a strong network of alliances links the cantons.
The centralized unitary state: the Swiss Republic from 1798 to 1803[modifier | modifier le wikicode]
The French Revolution, which, in the wake of the American Revolution, induces ideas of freedom and equality for individuals, will have a certain echo in Switzerland.
Thus, the principles of freedom and equality, which were excluded from political rights before 1798, will become an inalienable principle.
The French Republic will support the Swiss revolution and invade the territory making Switzerland a Swiss Republic created on the model of the French Republic. However, it has an economic interest. On the other hand, France, which has conquered Northern Italy, is very interested in the strategic position offered by the Swiss territory.
In 1798 the first Swiss constitution was promulgated, inspired by the 1795 constitution in France. The Swiss Republic is a centralized state. The system of cantonal sovereignty is abolished.
From now on, the central state is sovereign. The former territories under subjection are now on an equal footing. The individual is also emancipated, each adult individual is recognized for the exercise of his or her political rights and a political system with universal suffrage is founded. However, this Swiss Republic depends on France.
The Swiss Republic is plagued by many tensions between those who want to maintain this new order and those conservatives who want to return to the old model. In 1802, a civil war engulfed Switzerland for a return to the sovereignty of the cantons.
The Confederation of States from 1803 to 1848[modifier | modifier le wikicode]
The civil war was interrupted by Bonaparte's intervention, which resulted in a return to a confederal state.
Napoleon brought to Paris a constituent assembly of all the Cantons, and drafted the Mediation Act of 1803 which restored the sovereignty of the cantons. However, the gains of the revolution are preserved by affirming the principles of equality and freedom. We are not going back to what was established before 1798.
The cantons that were sovereign remain so and some allied states become full-fledged cantons. This confederal state structure offers all citizens the right to vote and stand for election, but this remains a cantonal matter.
The complex network of alliances was replaced by the Federal Act of 1803, which strengthened the military field: Switzerland had to be able to defend itself against the Austrians in particular. The diet is restored in the form of a diplomatic conference composed of two representatives per canton.
Following Napoleon's fall, the Act was replaced by the Federal Pact of 1815 (very similar to the 1803 Act), which was intended to organize the confederation.
From 1830 onwards, Switzerland experienced political and economic development and the sovereignty of the cantons blocked economic and political development.
The progressives want a centralized state while the Conservatives want the confederal state structure to be maintained.
During the Sonderbund war, the conservative clan was defeated. Leading to the Federal Constitution of 1848. The federal state structure continues to this day, based on the 1815 Federal Pact.
The Federal State from 1848 to the present[modifier | modifier le wikicode]
- 1848: first constitution.
- 1874: Total revision of the Constitution.
- 1999: new total revision.
The federal state structure is a compromise. The progressives wanted a unitary state model inspired by France, with the abolition of cantonal sovereignty as a corollary.
The federal model was put forward by a Genevan James Fasy, who referred to the value of the 1787 American constitution. It will promote American federalism and bicameralism (representative of the American people - House of Representatives - and representative of the States: Senate)
The Conservatives are satisfied with the maintenance of the sovereignty of the cantons as set out in section 3 of the Constitution.
Annexes[modifier | modifier le wikicode]
Important provisions of the Swiss Federal Constitution[modifier | modifier le wikicode]
- Art. 1: Defines the notion of the Swiss Confederation, the names of the 26 cantons.
- Art. 2: Indicates the goals pursued by the country.
- Art. 3: Explains that the cantons are sovereign in areas that are not assigned to the Confederation.
- Art. 5: Ensures that the activities of the State are based on and limit the Law.
- Art. 7: Human dignity is respected and protected as a basic principle of fundamental rights. This right may under no circumstances be limited by the State, even under exceptional conditions.
- Art. 10: Prohibits the death penalty, in the name of the right to life of everyone, and torture.
- Art. 38: Guarantee of the maintenance of the right to blood for the acquisition of Swiss nationality.
- Art. 41: Defines the social aims of the State and guarantees, in particular, access to health care, social protection (unemployment, invalidity, sickness, old age), housing and education.
- Art. 48: The alliance and treaties between cantons that are contrary to the law and the interests of the Confederation and the cantons are prohibited. On the other hand, the cantons have the right to conclude agreements between themselves (on legislation, justice and administration). The Confederation must be informed of these agreements: the Federal Assembly must approve these agreements (art 172.2).
- Art. 49: Primacy of federal law.
- Art. 54: Foreign affairs are the responsibility of the Confederation.
- Art. 184: The Federal Council represents Switzerland abroad. It signs and ratifies international treaties subject to the participation rights of the Federal Assembly (art. 166.2).
- Art. 140.1 letter b and Art. 141.1 letter d: Some international treaties and membership of international organisations are subject to referendum.
- Art. 59: Obligation to serve.
- Art. 72: Specifies that relations between the Church and the State are the responsibility of the cantons.
- Art. 136: Political rights of Swiss citizens.
- Art. 138-142: Definition and functioning of popular rights, such as popular initiative and referendum.
- Art. 173.1 letter a and Art. 185. 1: The Confederation shall take measures to safeguard the security, independence and neutrality of the country.
- Art. 173.1 letter d and Art. 185.4: The Federal Council and the National Assembly have an army, but the Federal Council is only subsidiary in this area.
- Art 173. 2: (By extension) Only the Federal Assembly can decide on War and Peace.
- Art. 177: Principle of collegiality within the Federal Council.
- Art. 191c: Guarantee of the independence of the judiciary.
References[modifier | modifier le wikicode]
- Publication de Victor Monnier repertoriées sur le site de l'Université de Genève
- Hommage à Victor Monnier sur le site de l'Université de Genève
- Publications de Victor Monnier sur Cairn.info
- Publications de Victor Monnier sur Openedition.org
- Page personnelle de Victor Monnier sur le site de l'Université de Aix-Marseille
- En Hommage À Victor Monnier.” Hommages.ch, 11 Mar. 2019, www.hommages.ch/Defunt/119766/Victor_MONNIER.
- Les prêtres français émigrés à St-Maurice en Valais pendant la grande révolution - https://books.google.fr/books?id=fjk_AAAAYAAJ&pg=RA2-PA3&lpg=RA2-PA3&dq=valais+r%C3%A9gime+eccl%C3%A9siastique&source=bl&ots=NVN8bMnY8E&sig=EZhiHCKMCxBUm-BwseH6wQhvij0&hl=en&sa=X&ved=0ahUKEwiVwdXWmafKAhUTyBoKHaFJDmwQ6AEIIDAA#v=onepage&q=valais%20r%C3%A9gime%20eccl%C3%A9siastique&f=false
- Constitution et Lois de la Republique du Valais - https://books.google.fr/books?id=IFVhAAAAcAAJ&pg=PA12&lpg=PA12&dq=valais+r%C3%A9gime+eccl%C3%A9siastique&source=bl&ots=KFoMuB3eqv&sig=9BVxs-1M8Teo5as3hHAc6mcI2Gs&hl=en&sa=X&ved=0ahUKEwiVwdXWmafKAhUTyBoKHaFJDmwQ6AEIQDAF#v=onepage&q=valais%20r%C3%A9gime%20eccl%C3%A9siastique&f=false