Front Page Titles (by Subject) Note VIII: SWISS FEDERALISM 89 - Introduction to the Study of the Law of the Constitution (LF ed.)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Note VIII: SWISS FEDERALISM 89 - Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (LF ed.) 
Introduction to the Study of the Law of the Constitution, ed. Roger E. Michener (Indianapolis: Liberty Fund 1982).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
The Swiss Federal Constitution may appear to a superficial observer to be a copy in miniature of the Constitution of the United States; and there is no doubt that the Swiss statesmen of 1848 did in one or two points, and notably in the formation of the Council of States or Senate, intentionally follow American precedents. But for all this, Swiss Federalism is the natural outgrowth of Swiss history, and bears a peculiar character of its own that well repays careful study.
Three ideas underlie the institutions of modern Switzerland.
The first is the uncontested and direct sovereignty of the nation.
In Switzerland the will of the people, when expressed in the mode provided by the Constitution, is admittedly supreme. This supremacy is not disputed by any political party or by any section of the community. No one dreams of changing the democratic basis of the national institutions. There does not exist in Switzerland any faction which, like the reactionists in France, meditates the overthrow of the Republic. There does not exist any section of the community which, like the Bohemians in Austria, or like the French in Alsace, is, which, or may be supposed to be, disloyal to the central government. But in Switzerland not only the supremacy but the direct authority of the nation is, practically as well as theoretically, acknowledged. The old idea of the opposition between the government and the people has vanished. All parts of the government, including in that term not only the Executive but also the Legislative bodies, are the recognised agents of the nation, and the people intervene directly in all important acts of legislation. In Switzerland, in short, the nation is sovereign in the sense in which a powerful king or queen was sovereign in the time when monarchy was a predominant power in European countries, and we shall best understand the attitude of the Swiss nation towards its representatives, whether in the Executive or in Parliament, by considering that the Swiss people occupies a position not unlike that held, for example, by Elizabeth of England. However great the Queen's authority, she was not a tyrant, but she really in the last resort governed the country, and her ministers were her servants and carried out her policy. The Queen did not directly legislate, but by her veto and by other means she controlled all important legislation. Such is, speaking roughly, the position of the Swiss people. The Federal Executive and the Federal Parliament pursue the lines of policy approved by the people. Under the name of the Referendum there is exercised a popular veto on laws passed by the Legislature, and of recent years, under the name of the Initiative, an attempt has been made at more or less direct legislation by the people. Whatever be the merits of Swiss institutions, the idea which governs them is obvious. The nation is monarch, the Executive and the members of the Legislature are the people's agents or ministers.
The second idea to which Swiss institutions give expression is that politics are a matter of business. The system of Swiss government is business-like. The affairs of the nation are transacted by men of capacity, who give effect to the will of the nation.
The last and most original Swiss conception is one which it is not easy for foreigners bred up under other constitutional systems to grasp. It is that the existence of political parties does not necessitate the adoption of party government.
These are the principles or conceptions embodied in Swiss institutions; they are closely inter-connected, they pervade and to a great extent explain the operation of the different parts of the Swiss Constitution. Many of its features are of course common to all the federal governments, but its special characteristics are due to the predominance of the three ideas to which the reader's attention has been directed. That this is so will be seen if we examine the different parts of the Swiss Constitution.
THE FEDERAL COUNCIL
This body, which we should in England call the Ministry, consists of seven persons elected at their first meeting by the two Chambers which make up the Swiss Federal Assembly or Congress, and for this purpose sit together. The Councillors hold office for three years, and being elected after the first meeting of the Assembly, which itself is elected for three years, keep their places till the next Federal Assembly meets, when a new election takes place. The Councillors need not be, but in fact are, elected from among the members of the Federal Assembly, and though they lose their seats on election, yet, as they can take part in the debates of each House, may for practical purposes be considered members of the Assembly or Parliament. The powers confided to the Council are wide. The Council is the Executive of the Confederacy and possesses the authority naturally belonging to the national government. It discharges also, strange as this may appear to Englishmen or Americans, many judicial functions. To the Council are in many cases referred questions of “administrative law,” and also certain classes of what Englishmen or Americans consider strictly legal questions. Thus the Council in effect determined some years ago what were the rights as to meeting in public of the Salvation Army, and whether and to what extent Cantonal legislation could prohibit or regulate their meetings. The Council again gives the required sanction to the Constitutions or to alterations in the Constitutions of the Cantons, and determines whether clauses in such Constitutions are, or are not, inconsistent with the articles of the Federal Constitution. The Council is in fact the centre of the whole Swiss Federal system; it is called upon to keep up good relations between the Cantons and the Federal or National government, and generally to provide for the preservation of order, and ultimately for the maintenance of the law throughout the whole country. All foreign affairs fall under the Council's supervision, and the conduct of foreign relations must, under the circumstances of Switzerland, always form a most important and difficult part of the duties of the government.
Though the Councillors are elected they are not dismissible by the Assembly, and in so far the Council may be considered an independent body; but from another point of view the Council has no independence. It is expected to carry out, and does carry out, the policy of the Assembly, and ultimately the policy of the nation, just as a good man of business is expected to carry out the orders of his employer. Many matters which are practically determined by the Council might constitutionally be decided by the Assembly itself, which, however, as a rule leaves the transaction of affairs in the hands of the Council. But the Council makes reports to the Assembly, and were the Assembly to express a distinct resolution on any subject, effect would be given to it. Nor is it expected that either the Council or individual Councillors should go out of office because proposals or laws presented by them to the Assembly are rejected, or because a law passed, with the approval of the Council, by the Chambers, is vetoed on being referred to the people. The Council, further, though as the members thereof, being elected by the Federal Assembly, must in general agree with the sentiments of that body, does not represent a Parliamentary majority as does an English or a French Ministry. The Councillors, though elected for a term of three years, are re-eligible, and as a rule are re-elected. The consequence is that a man may hold office for sixteen years or more, and that the character of the Council changes but slowly; and there have, it is said, been cases in which the majority of the Parliament belonged to one party and the majority of the Council to another, and this want of harmony in general political views between the Parliament and the Government did not lead to inconvenience. In truth the Council is not a Cabinet but a Board for the management of business, of which Board the so-called President of the Confederation, who is annually elected from among the members of the Council, is merely the chairman. It may fairly be compared to a Board of Directors chosen by the members of a large joint-stock company. In one sense the Board has no independent power. The majority of the shareholders, did they choose to do so, could always control its action or reverse its policy. In another sense, as we all know, a Board is almost free from control. As long as things are well, or even tolerably, managed, the shareholders have neither the wish nor practically the power to interfere. They know that the directors possess knowledge and experience which the shareholders lack, and that to interfere with the Board's management would imperil the welfare of the association. So it is with the Federal Council. Its dependence is the source of its strength. It does not come into conflict with the Assembly; it therefore is a permanent body, which carries on, and carries on with marked success, the administration of public affairs. It is a body of men of business who transact the business of the State.
It is worth while to dwell at some length on the constitution and character of the Swiss Council or Board, because it gives us a kind of Executive differing both from the Cabinet government of England or France, and from the Presidential government of America. The Council does not, like an English Cabinet, represent, at any rate directly and immediately, a predominant political party. It is not liable to be at any moment dismissed from office. Its members keep their seats for a period longer than the time during which either an English Ministry or an American President can hope to retain office. But the Council, though differing greatly from a Cabinet, is a Parliamentary or semi-Parliamentary Executive.90 It has not, like an American President, an independent authority of its own which, being derived from popular election, may transcend, and even be opposed to, the authority of the Legislature. The constitutional history of Switzerland since 1848 has exhibited none of those conflicts between the Executive and the legislative body which have occurred more than once in the United States. The position of the Council may, if we seek for an historical parallel, be compared with that of the Council of State under the Cromwellian Instrument of Government, and indeed occupies very nearly the position which the Council of State would have held had the Instrument of Government been, in accordance with the wishes of the Parliamentary Opposition, so modified as to allow of the frequent re-election by Parliament of the members of the Council.91 If we desire a modern parallel we may perhaps find it in the English Civil Service. The members of the Council are, like the permanent heads of the English Government offices, officials who have a permanent tenure of office, who are in strictness the servants of the State, and who are expected to carry out, and do carry out, measures which they may not have framed, and the policies of which they may not approve. This comparison is the more instructive, because in the absence of the elaborate Civil Service the members of the Council do in effect discharge rather the duties of permanent civil servants than of ministers.
THE FEDERAL ASSEMBLY
This Parliament is certainly modelled to a certain extent on the American Congress. For several purposes, however, the two chambers of which it consists sit together. As already pointed out, when thus combined they elect the Federal Council or Ministry. The Assembly, moreover, is, unlike any representative assembly to which the English people are accustomed, on certain administrative matters a final Court of Appeal from the Council. The main function, however, of the Assembly is to receive reports from the Council and to legislate. It sits but for a short period each year, and confines itself pretty closely to the transaction of business. Laws passed by it may, when referred to the people, be vetoed. Its members are pretty constantly re-elected, and it is apparently one of the most orderly and business-like of Parliaments.
The Assembly consists of two chambers or houses.
The Council of States, or, as we may more conveniently call it, the Senate, represents the Cantons, each of which as a rule sends two members to it.
The National Council, like the American House of Representatives, directly represents the citizens. It varies in numbers with the growth of the population, and each Canton is represented in proportion to its population.
In one important respect the Federal Assembly differs from the American Congress. In the United States the Senate has hitherto been the more influential of the two Houses. In Switzerland the Council of States was expected by the founders of the Constitution to wield the sort of authority which belongs to the American Senate. This expectation has been disappointed. The Council of States has played quite a secondary part in the working of the Constitution, and possesses much less power than the National Council. The reasons given for this are various. The members of the Council are paid by the Cantons which they represent. The time for which they hold office is regulated by each Canton, and has generally been short. The Council has no special functions such as has the American Senate, and the general result has been that leading statesmen have sought for seats not in the Council of State, but in the National Council. One cause of the failure on the part of the Council of States to fulfil the expectations of its creators seems to have escaped Swiss attention. The position and functions of the Federal Council or Ministry, its permanence and its relation to the Federal Parliament, make it impossible for the chamber which represents the Cantons to fill the place which is occupied in America by the House which represents the States. The inferior position of the Swiss Council of States deserves notice. It is one of the parts of the Constitution which was suggested by the experience of a foreign country, and for this very reason has, it may be suspected, not fitted in with the native institutions of Switzerland.
THE FEDERAL TRIBUNAL92
This Court was constituted by statesmen who knew the weight and authority which belongs to the Supreme Court of the United States; but the Federal Tribunal was from the beginning, and is still, a very different body from, and a much less powerful body than, The American Supreme Court. It is composed of fourteen judges, and as many substitutes elected for six years by the Federal Assembly, which also designates the President and the Vice-President of the Court for two years at a time. It possesses criminal jurisdiction in cases of high treason, and in regard to what we may term high crimes and misdemeanours, though its powers as a criminal Court are rarely put into operation. It has jurisdiction as regards suits between the Confederation and the Cantons, and between the Cantons themselves, and generally in all suits in which the Confederation or a Canton is a party. It also determines all matters of public law, and has by degrees, in consequence of federal legislation, been made virtually a general Court of Appeal from the Cantonal tribunals in all cases arising under federal laws where the amount in dispute exceeds 3000 francs. Add to this that the Court entertains complaints of the violation of the constitutional rights of citizens, and this whether the right alleged to be violated is guaranteed by a Federal or by a Cantonal constitution. The primary object for which the Court was constituted was the giving decisions, or rather the making of judicial declarations where points of public law are in dispute; and its civil jurisdiction has, under the stress of circumstances, been increased beyond the limits within which the founders of the Swiss Constitution intended it to be restrained. But the Federal Tribunal, though possessed of a wide and somewhat indefinite jurisdiction, wields nothing like the power possessed by the Supreme Court of the United States. It has no jurisdiction whatever in controversies with reference to “administrative law”; these are reserved for the Federal Council, and ultimately for the Federal Assembly,93 and the term “administrative controversies” has been given a very extensive signification, so that the Court has been excluded “from the consideration of a long list of subjects, such as the right to carry on a trade, commercial treaties, consumption taxes, game laws, certificates of professional capacity, factory acts, bank-notes, weights and measures, primary public schools, sanitary police, and the validity of cantonal elections,”94 which wouldprimâ facie seem to fall within its competence. The Tribunal, moreover, though it can treat cantonal laws as unconstitutional, and therefore invalid, is bound by the Constitution to treat all federal legislation as valid.95
The judges of the Federal Tribunal are appointed by the Federal Assembly, and for short terms. The Tribunal stands alone, instead of being at the head of a national judicial system. It has further no officials of its own for the enforcement of its judgments. They are executed primarily by the cantonal authorities, and ultimately, if the cantonal authorities fail in their duty, by the Federal Council.96 The control, moreover, exerted by the Federal Tribunal over the acts of Federal officials is incomplete. Any citizen may sue an official, but, as already pointed out, administrative controversies are excluded from the Court's jurisdiction, and in case there is a conflict of jurisdiction between the Federal Council and the Federal Tribunal, it is decided not by the Court but by the Federal Assembly, which one would expect to support the authority of the Council. The Federal Tribunal, at any rate, cannot as regards such disputes fix the limits of its own competence.97 Under these circumstances it is not surprising that the Tribunal exercises less authority than the Supreme Court of the United States. What may excite some surprise is that, from the very nature of federalism the jurisdiction of the Federal Tribunal has, in spite of all disadvantages under which the Court suffers, year by year increased. Thus until 2893 questions relating to religious liberty, and the rights of different sects, were reserved for the decision of the Federal Assembly. Since that date they have been transferred to the jurisdiction of the Federal Tribunal. This very transfer, and the whole relation of the Tribunal, the Council, and the Assembly respectively, to questions which would in England or the United States be necessarily decided by a law court, serve to remind the reader of the imperfect recognition in Switzerland of the “rule of law,” as it is understood in England, and of the separation of powers as that doctrine is understood in many continental countries.98
If in the constitution of the Federal Tribunal and of the Council of States we can trace the influence of American examples, the referendum, as it exists in Switzerland, is an institution of native growth, which has received there a far more complete and extensive development than in any other country. If we omit all details, and deal with the referendum as it in fact exists under the Swiss Federal Constitution, we may describe it as an arrangement by which no alteration or amendment in the Constitution, and no federal law which any large number of Swiss citizens think of importance, comes finally into force until it has been submitted to the vote of the citizens, and has been sanctioned by a majority of the citizens who actually vote. It may be added that a change in the Constitution thus referred to the people for sanction cannot come into force unless it is approved of both by a majority of the citizens who vote, and by a majority of the Cantons. It must further be noted that the referendum in different forms exists in all but one of the Swiss Cantons, and may therefore now be considered an essential feature of Swiss constitutionalism. The referendum is therefore in effect a nation's veto. It gives to the citizens of Switzerland exactly that power of arresting legislation which is still in theory and was in the time, for example, of Elizabeth actually possessed by an English monarch. A bill could not finally become a law until it had obtained the consent of the Crown. In popular language, the Crown, in case the monarch dissented, might be said to veto the bill. A more accurate way of describing the Crown's action is to say that the King threw out or rejected the bill just as did the House of Lords or the House of Commons when either body refused to pass a bill. This is in substance the position occupied by the citizens of Switzerland when a law passed by the Federal Assembly is submitted to them for their approbation or rejection. If they give their assent it becomes the law of the land; if they refuse their assent it is vetoed, or, speaking more accurately, the proposed law is not allowed to pass, i.e. to become in reality a law.
The referendum has a purely negative effect. It is in many of the Cantonal Constitutions, and in the Federal Constitution to a certain extent, supplemented by what is called the Initiative—that is, a device by which a certain number of citizens can propose a law and require a popular vote upon it in spite of the refusal of the legislature to adopt their views.100 The Initiative has, under the Federal Constitution at any rate, received as yet but little trial. Whether it can be under any circumstances a successful mode of legislation may be doubted. All that need here be noted is that while the introduction of the Initiative is neither in theory nor in fact a necessary consequence of the maintenance of the referendum, both institutions are examples of the way in which in Switzerland the citizens take a direct part in legislation.
The referendum, taken in combination with the other provisions of the Constitution, and with the general character of Swiss federalism, tends, it is conceived, to produce two effects.
It alters, in the first place, the position both of the Legislature and of the Executive. The Assembly and the Federal Council become obviously the agents of the Swiss people. This state of things, while it decreases the power, may also increase the freedom of Swiss statesmen. A member of the Council, or the Council itself, proposes a law which is passed by the Legislature. It is, we will suppose, as has often happened, referred to the people for approval and then rejected. The Council and the Assembly bow without any discredit to the popular decision. There is no reason why the members either of the Council or of the Legislature should resign their seats; it has frequently happened that the electors, whilst disapproving of certain laws submitted for their acceptance by the Federal Assembly, have re-elected the very men whose legislation they have refused to accept. Individual politicians, on the other hand, who advocate particular measures just because the failure to pass these measures into law does not involve resignation or expulsion from office, can openly express their political views even if these views differ from the opinions of the people. The referendum, in the second place, discourages the growth of party government. The electors do not feel it necessary that the Council, or even the Assembly, should strictly represent one party. Where the citizens themselves can veto legislation which they disapprove, it matters comparatively little that some of their representatives should entertain political opinions which do not at the moment commend themselves to the majority of the electorate. The habit, moreover, acquired of taking part in legislation must probably accustom Swiss citizens to consider any proposed law more or less on its merits. They are at any rate less prone than are the voters of most countries to support a party programme which possibly does not as to every one of its provisions command the assent of any one voter. It may, of course, on the other hand, be maintained that it is the incomplete development of party government in Switzerland which favours the adoption of the referendum. However this may be, there can be little doubt that the existence of the most peculiar of Swiss institutions has a close connection with the condition of Swiss parties.
Swiss Federalism has been, as we have already pointed out, considerably influenced by American Federalism, and it is almost impossible for an intelligent student not to compare the most successful federal and democratic government of the New World with the most successful federal and democratic government of Europe, for the history and the institutions of America and of Switzerland exhibit just that kind of likeness and unlikeness which excites comparison.
The United States and Switzerland are both by nature federations; neither country could, it is pretty clear, prosper under any but a federal constitution; both countries are, at the present day at any rate, by nature democracies. In each country the States or Cantons have existed before the federation. In each country state patriotism was originally a far stronger sentiment than the feeling of national unity. In America and in Switzerland national unity has been the growth of necessity. It is also probable that the sentiment of national unity, now that it has been once evoked, will in the long run triumph over the feeling of State rights or State sovereignty. In a very rough manner, moreover, there is a certain likeness between what may be called the federal history of both countries. In America and in Switzerland there existed for a long time causes which prevented and threatened finally to arrest the progress towards national unity. Slavery played in the United States a part which resembled at any rate the part played in Swiss history by religious divisions. In America and in Switzerland a less progressive, but united and warlike, minority of States held for a long time in check the influence of the richer, the more civilised, and the less united States. Constant disputes as to the area of slavery bore at any rate an analogy to the disputes about the common territories which at one time divided the Catholic and Protestant Cantons. Secession was anticipated by the Sonderbund, and the triumph of Grant was not more complete than the triumph of Dufour. Nor is it at all certain that the military genius of the American was greater than the military genius of the Swiss general. The War of Secession and the War of the Sonderbund had this further quality in common. They each absolutely concluded the controversies out of which they had arisen; they each so ended that victors and vanquished alike soon became the loyal citizens of the same Republic. Each country, lastly, may attribute its prosperity, with plausibility at least, to its institutions, and these institutions bear in their general features a marked similarity.
The unlikeness, however, between American and Swiss Federalism is at least as remarkable as the likeness. America is the largest as Switzerland is the smallest of Confederations; more than one American State exceeds in size and population the whole of the Swiss Confederacy. The American Union is from every point of view a modern state; the heroic age of Switzerland, as far as military glory is concerned, had closed before a single European had set foot in America, and the independence of Switzerland was acknowledged by Europe more than a century before the United States began their political existence. American institutions are the direct outgrowth of English ideas, and in the main of the English ideas which prevailed in England during the democratic movement of the seventeenth century; American society was never under the influence of feudalism. The democracy of Switzerland is imbued in many respects with continental ideas of government, and till the time of the great French Revolution, Swiss society was filled with inequalities originating in feudal ideas. The United States is made up of States which have always been used to representative institutions; the Cantons of Switzerland have been mainly accustomed to non-representative, aristocratic or democratic government. Under these circumstances, it is naturally to be expected that even institutions which possess a certain formal similarity should display an essentially different character in countries which differ so widely as the United States and Switzerland.
These differences may be thus roughly summed up: American Federalism is strong where Swiss Federalism is weak; where American Federalism is weak, Swiss Federalism is strong.
The Senate and the Judiciary of the United States have rightly excited more admiration than any other part of the American Constitution. They have each been, to a certain extent, imitated by the founders of the existing Swiss Republic. But in neither instance has the imitation been a complete success. The Council of States has not the authority of the Senate; the Federal Tribunal, though its power appears to be on the increase, cannot stand comparison with the Supreme Court. The judicial arrangements of Switzerland would appear, at any rate to a foreign critic, to be the least satisfactory of Swiss institutions, and the exercise by the Federal Council and the Federal Assembly of judicial powers is not in unison with the best modern ideas as to the due administration of justice.
The features in American institutions which receive very qualified approval, if not actual censure even from favourable critics, are the mode in which the President is appointed, the relation of the Executive Government to the Houses of Congress, the disastrous development of party organisation, and the waste or corruption which are the consequence of the predominance of party managers or wirepullers.
The Federal Council, on the other hand, forms as good an Executive as is possessed by any country in the world. It would appear to a foreign observer (though on such a matter foreign critics are singularly liable to delusion) to combine in a rare degree the advantages of a Parliamentary and of a non-Parliamentary government. It acts in uniform harmony with the elected representatives of the people, but though appointed by the legislature, it enjoys a permanent tenure of office unknown to Parliamentary Cabinets or to elected Presidents. Though parties, again, exist, and party spirit occasionally runs high in Switzerland, party government is not found there to be a necessity. The evils, at any rate, attributed to government by party are either greatly diminished or entirely averted. The Caucus and the “Machine” are all but unknown. The country is freed from the unwholesome excitement of a Presidential election, or even of a general election, which, as in England, determines which party shall have possession of the government. There is no notion of spoils, and no one apparently even hints at corruption.
See Lowell, Governments and Parties in Continental Europe, ii., Switzerland, pp. 180–336; Orelli, Das Staatsrecht der Schweizerischen Eidgenossenschaft; Marquardsen's Handbuch des Oef-fentlichen Rechts, iv. i. 2.
See Note III. p. 331, ante.
See the “Constitutional Bill of the First Parliament of the Protectorate,” cap, 39; Gardiner, Constitutional Documents of the Puritan Revolution, pp. 366, 367.
Lowell, ii. p. 214; Orelli, pp. 38–44.
See Swiss Constitution, Art. 85, s. 12, and Art. 113.
Lowell, p. 218.
See Swiss Constitution, Art. 113; Brinton Coxe, Judicial Power and Unconstitutional Legislation, p. 86.
See Adams, Swiss Confederation, pp. 74, 75.
See Lowell, p. 220.
Lowell, pp. 218, 219.
See Lowell, ii. chap. xii.; Adams, Swiss Confederation, chap. vi. The referendum, though not under that name, exists for many purposes in the different States of the American Union. There is no trace of it, or of any institution corresponding to it, in the Constitution of the United States. Compare Oberholtzer, Referendum in America.
Lowell, p. 280.