Switzerland's domestic legal framework
|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
- 1 The hierarchy of legal norms
- 2 The Constitution
- 3 The law
- 4 Decree
- 5 The ordinance
- 6 Annexes
- 7 References
The hierarchy of legal norms[edit | edit source]
The hierarchy of norms, or rules, is the set of components of a legal system considered in their coordination and based on the principle that the norm of a lower level must respect and implement that of the higher level.
Traditionally, this hierarchy is based on the following order:
- International law
- Federal Constitution
- Cantonal constitutions
- Cantonal laws
- Cantonal ordinances
In recent years, this pattern has been disrupted by the emergence of rules of international law and in particular rules from the European Community.
In Switzerland, international treaties that produce international standards are incorporated into the domestic legal order. So there is the primacy of international standards.
The principle of primacy comes from the adage Pacta sunt Servanda, at the time when Switzerland adopts an international treaty it must therefore respect its commitments.
States must respect their commitments, good faith is the loyalty that must be observed, i.e. respect their promise. This is one of the principles on which Grotius established his right to people.
If international law prevails over national law, federal law will prevail over cantonal law. The primacy of federal law, also known as the "derogatory force of federal law", means that federal law has the right over cantonal law is expressed in the adage Bundesrecht bricht kantonales Recht.
The Constitution[edit | edit source]
The fundamental norm is the constitution, it dates from 1999 and is a constitution in the formal sense. According to Lorenz von Stein, « the constitution is the expression of the social order, the very existence of the state civil society ».
- Constitution in the formal sense: rules of a special form, consisting of a solemnly adopted written document of authority generally superior to that of ordinary laws; a written document that brings together in a single text the essential rules that apply to the functioning of the State.
It is a set of written norms that is characterized by the superiority of their formality compared to other norms. This superiority of the constitution is reflected in its revision procedure.
The procedure for reviewing the constitution in the formal sense is more rigid, but also more democratic than the procedure for adopting, amending and repealing other legal norms.
To revise the constitution, a referendum is mandatory, it requires a double majority. For a constitutional norm to be adopted, a majority of the people and cantons are required.
- Constitution in the material sense: a set of rules which, whatever their nature and form, relate to the functioning of the State, to the exercise of political power; a set of the most important rules governing the organisation and functioning of the State.
It is a set of written or unwritten fundamental rules that determine the structure of the State, the manner in which competence is designated, the functioning of the various organs and the relationship between the individual and the State.
It can be said that every State has a constitution in the material sense because every State has fundamental rules that determine its structure, functioning and relations with society.
There are some States which, while having a constitution in the material sense, do not have a constitution in the formal sense:
- Ex- England does not know of any written text that is characterised by a particular revision procedure. In principle, the supremacy of the English Parliament is given which can repeal by a simple majority all previous state acts. There is no constitution in the formal sense; therefore it consists of a heterogeneous set of rules and norms such as the Magna Carta of 1215, the Bill of Rights of 1689 constitutes the material constitution. Ex- the State of Israel has only fundamental laws that are no different from other laws. They are distinguished by their name, but not by their function. These fundamental rules may be revised by a majority of the government.
PROCESS OF REVISION OF THE SWISS CONSTITUTION[edit | edit source]
The constitution may be totally or partially revised at any time. These rules can be found at the end of the Constitution Art. 193; Art. 194.
In Switzerland, the first formal constitution dates back to 1798. Before 1798, Switzerland was an Alliance network, it had no constitution. This network of alliances, which goes from 1291 to the peace of Aarau in 1712, is a set of treaties that applies to all cantons; it has no constitution in the formal sense.
The 1798 constitution is the first constitution in the formal sense, and the 1848 constitution is the constitution that introduces the federal structure.
- Principle 1: The constitution can be revised at any time.
The initiative may be popular or parliamentary - Art. 195: The revised Constitution, wholly or partially, shall enter into force as soon as the people and the cantons have accepted it.
- partial revision: involves a number of articles
- total revision: revision of the constitutional whole
It must respect the mandatory rules of international law.
The request for review by the people takes the form of a constitutional initiative. The request can come from the people, if 100,000 citizens request the revision of the constitution through a petition within 18 months.
In the event of a total revision, if the chambers are unable to agree on the approval to be given to this initiative, it is then up to the electorate to decide on the revision. It can only be done in general terms.
Each time the chambers are renewed, the Federal Council is renewed.
TOTAL REVIEW - initiated by the people - passes through both houses of parliament[edit | edit source]
The total revision can only be made in general terms, while a partial revision can be made either in general terms or in the form of a written draft.
If the people vote in favour of the draft of the total revision, Parliament and the Federal Council shall be renewed.
PARTIAL REVISION[edit | edit source]
If a popular initiative for a partial revision of the Constitution and designed in general terms is successful and if the Federal Assembly approves it, it shall prepare the text of the partial revision and submit it to the vote of the people and the cantons.
- If the Federal Assembly rejects such an initiative, it must submit it to the vote of the people, who decide whether it should be followed up (prior referendum)
- If the people approve the initiative, the Assembly must then draft the draft requested by the initiative.
The draft must be submitted to the vote of the people and the cantons. The Assembly may propose to accept or reject the revision, and may also propose a counter-proposal.
Since 1987, the people and the cantons have been able to express their opinions on the initiative and the counter-proposal.
This vote, known as the "double yes" vote, strengthened the right of initiative for the following reason: a popular initiative is almost always submitted to the people accompanied by a counter-proposal.
Before the introduction of the possibility of the double yes, the votes cast for constitutional reform were scattered between the initiative and the counter-proposal, which favoured maintaining the status quo, sometimes against the majority of citizens.
Previously, it was not possible to say "yes" to the two projects that resulted in the dispersal of votes. With the dispersion of votes between the project and the counter-project, the status quo was favoured. It is therefore possible to measure which of the two proposals in favour.
Since 1848, the Constitution has been completely revised twice, in 1874 and 1999. The Constitution can be revised relatively easily. With the possibility given to 100,000 people, it expresses democratic inspirations. However, there is generally a minority of these revisions that are successful.
The law[edit | edit source]
The "law" is the form that the rules take to be legally binding.
The law is an act adopted according to a legislative procedure and which contains rules of law.
In principle, a federal law is both a law in the material sense and a law in the formal sense. In the formal sense because it is the Parliament that elaborates it, and a law in the material sense because it contains rules of law
Law in the substantive sense: It is the law in the broad sense or written law, is any international, constitutional, legislative or regulatory act, setting out a rule or set of rules of law. The definition of the law in the material sense is therefore based on the content of the law: it contains one or more general and abstract norms
- comes from the Federal Assembly
- sets out rights
- developed by the Legislative Assembly.
Important standards can only be made in the form of formal law as a representative of the people.
The principle of the reservation of the law is the principle that requires that important rules of law be enacted in the form of the law. However, the Constitution does not prohibit parliament from dealing with a matter arising from the areas covered by article 164 of the Constitution.
Conversely, Parliament may delegate the power to enact rules of law in the form of ordinances if it considers that the executive is more competent to solve certain problems and if this is not an area that the Constitution requires to be dealt with by law.
In important areas, only the legislator through the adoption of a formal law can take decisions.
Parliament may delegate the power to pass laws as long as the Constitution does not restrict it.
- popular will
- 1) initiative
The draft law can start from Parliament or the Federal Council. If the proposal is accepted and approved by Parliament, a preliminary draft is drawn up under the supervision of the Federal Council and in coordination with the Federal Office of Justice. Once drafted, the draft will be distributed to other departments for consultation and criticism.
- 2) consultation procedure
The cantons, political parties and interested parties are invited to comment on important legislative acts and other major projects during the preparatory work, as well as on important international treaties. The consultation has a constitutional basis.
The preliminary draft is sent for consultation to the various departments concerned by the Federal Chancellery. Then, after alterations, it is put in consultation with the cantons, political parties, representatives of interested circles, other experts, etc.
- 3) processing at the Federal Council: decides on the text and will write a recommendation (accept or reject)
The competent federal department drafts the draft law, taking into account the results of the consultation procedure and the instructions of the Federal Council. The Federal Council then definitively adopts the text of the draft law and publishes its official commentary in the "message".
- 4) transmission to Parliament, which publishes the law in the general sheet
The draft is sent, together with the message, to the Chambers. Depending on the circumstances, he proposes either to accept or reject it. The project and the message are published in the Federal Gazette.
- Priority Chamber: entrusts a committee with processing the project, it is decided to which chamber the project will be submitted first, which decides on the introduction:
- if the vote is in favour: the chamber takes up the project and discusses it
- if rejection: go to the other room
- Second Chamber: issues a report
- If positive: introduction to the subject
- If negative: text removed
There will be a shuttle game between the two councils to resolve the differences, we are discussing to establish a text that will be accepted by both chambers.
If this fails, a conciliation conference is set up in order to find a solution, as is the case when one chamber wants an introduction to the subject and the other does not.
- 5) sent to the drafting committee, which drafts in the three official languages.
- 6) once drafted, the bill is submitted to the final vote of both chambers
- 7) The law is published in the Federal Gazette
Publication in the federal sheet triggers the 100-day period to which it is then exposed, i.e. the optional referendum
- the 100-day referendum period begins to run
- the referendum can be requested by 50,000 citizens or 8 cantons
At the end of these 100 days if the referendum has been requested, it is the people who will decide whether or not to accept the law submitted.
- 8) if the people accept, the law is published in the official and systematic compendium
- 9) the law is adopted
- 10) the law is promulgated when the Federal Council validates the result of the popular vote or when the Federal Chancellery finds that the expiry of referendum deadlines has expired and no request for a referendum has been made
- 11) The law is published at the time it is made public
- 12) The law comes into force when it becomes mandatory after publication
Note: If the law contains the emergency clause, the law comes into force at the time of its adoption.
In case of need by a majority of the members, a council may declare an urgent law and declare its entry into force immediately.
- EMERGENCY CLAUSE
The referendum may be requested, if this law, which entered into force with the emergency clause, is in accordance with the Constitution and there is a request for a referendum, this law ceases to have effect one year after its adoption by the Federal Assembly if the law has not been approved by the people.
If the referendum has been requested for an emergency law contrary to the constitution, it is necessary to have a double majority. As soon as we are in an emergency clause concerning the constitution, we need the vote of the people and the cantons, otherwise the law is no longer valid after one year.
Decree[edit | edit source]
Federal decree[edit | edit source]
We see that the other acts are enacted in the form of a federal decree, they are acts that do not contain any rules of law. They are not rules in the material sense, but since they have been enacted by Parliament, they are laws in the formal sense.
These are acts of the Federal Assembly that do not contain rules of law. Their nature is rather decision-making, the State intervenes in a concrete situation that applies to one or more specific persons.
Decisions are the individual and concrete measures, based on law, taken by the authority in the specific case.
- concrete nature;
- individual character
The Federal Constitution or the law considers that in such cases, the decision taken by the decrees is sufficiently important for it to be the subject of a referendum.
The federal decree allows the adoption of certain acts that are the responsibility of the administration (e. g. granting a licence for a nuclear power plant).
The idea is to involve the people in decision-making, such as granting a concession for a nuclear power plant or purchasing military equipment.
Democracy is on the one hand the power given by the people and the cantons in Berne, but also the constant intervention of the people in federal affairs.
Simple Federal Decree[edit | edit source]
These are decrees that are not subject to a referendum (e.g. guarantee of cantonal constitutions), this may be the vote on the budget.
The ordinance[edit | edit source]
These are general rules for the application (enforcement) of federal laws, in other words, ordinances are rules of law.
Under federal law, all state bodies can issue ordinances:
- Federal Assembly: rule of law in the substantive and formal sense
- Federal Council: rule of law in the substantive sense
- Federal Court: rule of law in the substantive sense
The ordinance is necessary because of the non-exhaustive nature of the law, it is generally up to the Federal Council to adapt the law to reality. The legislator adopts the main principles, but the reality of the concrete situation is the executive.
Two categories of orders:
- legislative: these are laws in the material sense, of lower rank than the law in the formal sense, drawn up according to a specific procedure by an executive, legislative or judicial authority, and not subject to a referendum
They are enforceable against individuals and are published in the Official and Systematic Compilation.
- administrative: addressed to the administration, to their officials, prescribing the way in which they should carry out their tasks. They are not published, but communicated by service.
Fundamental rights must not be impeded by the ordinance. The Constitution must not prohibit it.
The power to issue ordinances must not be hindered by the Constitution, but must be provided for either by the Constitution itself or by the law which mandates the Federal Council to adopt the rules of law.
The particularity of the ordinance is that it is not subject to a referendum, as the measures adopted only implement the provisions contained in the law.
The scope of application must be limited. How can we ensure that the enabling law is not drafted in terms that are too vague or detailed for the people to understand the enabling and the right to exercise or not to exercise their right to a referendum?
The ordinance must comply with both federal and cantonal law and is part of the hierarchy of norms.
With the order, we have a rule of law, but it may not be a formal rule of law. The ordinance is a law in the material sense and is not subject to referendum.
Annexes[edit | edit source]
References[edit | edit source]
- 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.
- Schmitt, Carl, Marie-Louise Steinhauser, and Julien Freund. La Notion De Politique ; Théorie Du Partisan. Paris: Flammarion, 2009. p.86