Thomas Fleiner
Professor, Director, Institute of Federalism,
Fribourg
Switzerland: subsidiarity, ethnic
and cultural diversity.*
I. Introduction
Switzerland is a small country of 7 million inhabitants surrounded by
Germany, France, Italy, Austria and the small principality of Liechtenstein. Although the
first historical development of small local state units seeking independence from foreign
kings and dukes goes back to the 12th century, modern Switzerland has been
constituted out of 25 sovereign (6 half cantons) cantons with the first Federal
Constitution of 1848. The 26th Canton (Jura) has been constituted out of
secession from the Canton of Berne in the end of the seventies of the last century.
With regard to its cultural diversity Switzerland is composed of 17
Cantons which are German speaking1, four Cantons which are French speaking2
and one Canton which is Italian speaking3. Three Cantons are bilingual (German
- French)4 and one Canton has three languages (German, Romansh and Italian)5.
II. Federalism as Pre-Constitutional Principle
Swiss federalism has developed out of several different, independent
and very diverse communities, which have been structured as rural corporations, small
democracies, aristocratic or economic oligarchies. These small corporations did loosen
their ties and finally secede from their big neighborhood empires, kingdoms or nations.
Thus, they have not been integrated into the nation building process of Western Europe in
the 18th and 19th century. On the contrary, they were able to form
their own governmental system and to constitute a state composed of different sovereign
Cantons, that is of politically very diverse political units, of different language
communities and different religions. The main purpose of the Alliance ('Bund'), which
later developed into a federal state, was to rule the political affairs of the Cantons and
of the Alliance independently and according to their own values of democracy.
This policy was the reason, that at the edge of the three big language
groups of Western Europe (German, French and Italian) some 25 democratic corporations
could unite in an Alliance around the Alps. In 1848, this Alliance has been transformed
after a short civil war ('Sonderbundskrieg', 1847) into a federal state with a Federal
Constitution. The Federation is still called Swiss Confederation for several reasons and
in particular, because the German name ('Schweizerische Eidgenossenschaft') cannot be
translated into French and Italian. The very legitimacy of this unit is based on the
constitutional autonomy of the Cantons (self-rule) and on their constitution making power
on the federal level (shared-rule). Thus the Swiss Confederation exists through and by the
will of the Cantons.
Each of the cantonal democratic communities could thus live and develop
according to its own culture, history, language and religion. It followed the legal
culture of its neighbors and established its own perception of the State, Law, Democracy,
and even state-church relationship. The peoples of the cantons kept their own perception
of a cantonal nationhood and state legitimacy. In consequence, the cantons maintained own
cantonal and even municipal citizenship. Thus, until today every Swiss has kept its three
fold citizenship: municipal, cantonal and federal (art. 37 par. 1).
The Cantons and the Swiss Federation have thus adapted in a very
diverse manner to the constitutionalism of the modernity and they maintained at the same
time their way of corporativism in a rural environment and culture6. According
to the Preamble, they did not adopt the melting-pot solution of 'We the people of...'
(US Constitution). On the contrary, they decided to remain a composed nation and adopted
in Article 1 of the 1874 Constitution the following formula:
'Together, the peoples of the 23 sovereign Cantons of Switzerland
united by the present alliance, to with: Zurich, Bern, Lucerne, Uri, Schwyz, Unterwalden
(Upper and Lower), Glarus, Zug, Fribourg, Soleure, Basle (City and Rural), Schaffhausen,
Appenzell (both Rhodes), St. Gall, Grisons, Aargau, Thurgau, Ticino, Vaud, Valais,
Neuchatel, Geneva and Jura, form the Swiss Confederation.'
Up to the end of 19th century the causes of conflict where
much more for religious reasons between Protestants (55%) and Catholics (44%) than for
cultural reasons between the different languages. This has radically changed in the 20th
century. Today, religion as a cause of conflict is fading away. Much more important is the
language issue. Democratic decisions of the people by referendum show, that language
groups have very different opinions on foreign policy, European integration, social
security and environment. If in the next years the gap between language communities will
become larger and deeper, one can foresee important conflicts between the different
communities.
Taking into account these emerging new tensions among different
linguistic communities the new Constitution of 1999 emphasizes the obligation of the
Federation to enhance peace and understanding among the different linguistic communities.
As the previous Constitution, the actual Constitution declares all four languages namely
German (63,7%, French (19,2%), Italian (7,6%) and Romansh (0,6%) as official languages of
the country (art. 4). The three main languages (German, French and Italian) are legally
but not in reality on equal footing. With regard to the Romansh language article 70 of the
Swiss Constitution provides only the guarantee for the Romansh speaking citizens to have
their official contact with the federal administration in their own native language.
With regard to the other three official languages, they are legally
respected with equal value, a constitutional guarantee, which has far-reaching practical
consequences. For instance, all official decisions in particular all legal norms (such as
bills, statutes and ordinances) have to be edited in the three languages. They are only
legally valid, if they are published at the same time in the three official languages.
Each text and wording has equal value with regard to interpretation. No language has
priority, every language has the same original priority. In case of conflict, the judge
has to decide according to the most reasonable interpretation, not according to the
language, in which the statute has been drafted.
Multiculturalism, diversity and complexity have often been shaped out
of brutal religious wars and ideological controversies with the risk of breaking the
country into pieces. Switzerland thus remains a composed nation with an important
potential of conflicts. However, there is today certainly a large consensus that minority
interests should not be pursued with violence but rather with peaceful political means.
What are the reasons, which make all different communities to renounce on violence and
basically to accept peaceful decision making processes? The very reason is to be found in
the legitimacy of the unity of the nation. But as the nation is not ethnically
homogeneous, the only factor, which does unify the country, is the conviction of the great
bulk of all citizens into the same political values. The Swiss have internalised their
acceptance of the rule of the political game that is the rules of a corporate local and
federal consensus driven democracy.
The most provoking challenge of Swiss federalism is its
multiculturality. This multiculturality is not the outcome of an immigration country like
the US, Canada or Australia (all also federal countries). Multiculturality has its roots
in ancient history of communities, which have always lived in Switzerland. The major and
most challenging question thus is: How can a so a diverse society as the Swiss community,
which is not homogeneous like Germany find its unity and legitimacy in common political
values? How can the exclusive political values of local democracy and federalism, which
are not universal and inclusive enable a composed people to be united within a European
environment, which today does base its political unity on universal values such as
democracy, rule of law and human rights?
While the Constitution of 1874 explicitly mentioned that the different
people of the sovereign cantons form the Federation, the new Constitution does base its
legitimacy on the composed Swiss nation on one side and on the peoples of the cantons on
the other side7. Here the question remains, whether the 'people of
Switzerland' is a unity and what are the spiritual forces to sustain this unity? It
can well be that the traditional political procedures and institutions such as direct
democracy, federalism and local authority have been so strongly internalized that they
turned a culturally diverse population into a politically homogeneous people. It may well
be, that federalism in particular that is shared rule of the different cultures and strong
self rule (autonomy) of cantons and municipalities has been and still is the most
important integrative factor to unite the Swiss population. It is certainly thanks to
these common political values that Switzerland has not been up to now been split up into
language and/or religious communities.
Thus, the legitimacy of the Swiss Confederation is based on the peoples
of the cantons as well as on a 'Swiss nation' composed by a rich diversity of
different cultures and religions. This nation is fragmented by the Cantons, which
represent the political units of the federation. The peoples of the Cantons are
politically committed to their Canton and their federation, culturally they are linked to
the strong culture of their related people of the neighbor country. The homogeneity of the
state thus is based on the common understanding and on the common perception of the
fundamentals of politics. This historical reality implements finally the federal structure
of the federation. If the Constitution would not take this reality into account, the
Confederation would finally split into the different ethnic communities8.
It is this reality of the fragmented Swiss society, which has induced
the drafters of the new Constitution to provide already in the Preamble a clear mandate of
the Confederation to be 'determined to live our diversity in unity respecting one
another. And art. 2 par. 2 of the Constitution does oblige the Confederation to foster
the cultural diversity of the Federation. Such provision is certainly unique compared
with other constitutions. The US-Constitution is based on the melting pot concept: 'we,
the people of the United States'. The South African Constitution also stipulates unity
by diversity, but taking into account the wounds of history, it confesses to heal the
divisions of the past.
The paradoxical formula of 'diversity in unity' (Preamble)
describes the federal principle according to the Swiss understanding of its
multiculturality. Diversity in unity is the starting point of different
theories on federalism9. It does not only emphasize, that different cultural
communities can be united by their firm will to be a political union, but it expresses
also the dialectic tension between self-rule, shared rule and solidarity. Federalism as a
structural principle depends on the constitutionally established and protected balance
between self-rule and shared rule. All measures of the federal government and in
particular the federal statutes have to respect this balance in order to accomplish the
mandates of the constitution10
The constitutional powers of federal and cantonal authorities are
separated and divided according to the Federal Constitution (art. 3) and in practice they
are redefined in a complex network, which can only function on comity and federal-cantonal
partnership. Swiss Federalism thus is not only a complementary instrument for an
additional separation of power in order to limit state powers by vertical checks and
balances11. The multiculturality and the diversity of the Swiss society is the pre-constitutional
reality, which is reflected in Swiss Federalism. Thus, federalism is a principle, which
underlies the legitimacy of the constitution12
In order to respond to these necessities the Federal Constitution did
establish political institutions and procedures, which enable a peaceful settlement or
management of internal conflicts. In this sense, the Preamble of the new Constitution
explicitly stipulates to 'strengthen liberty, democracy, independence and peace (not
only international) in solidarity and in openness to the world.' Thus not only liberty,
but also peace that is conflict management among the cultural communities are the declared
goals of the Constitution. In fact, during our history individual liberty has often been
restricted for the sake of peace between the cultural and/or language communities.
Religious and language communities did always claim their rights under the title of
collective rights, which in certain cases may restrict individual liberties.
D. Equal Living Conditions
Article 72 par. 2 of the German Constitution provides federal
legislative competence if it is necessary for the establishment of equal living conditions
throughout the country13. A similar provision is to be found in art.
130 of the Spanish Constitution, which provides, that the 'public authorities shall
attend to the modernization and development of all economic sectors, particularly of
agriculture, livestock raising, fishing, and handicrafts, in order to equalize the
standard of living of all Spaniards.'
Constitutionalism of the state of modernity requires equal rights with
regard to equal opportunities, not equal results. Neither equal opportunities nor equal
results are guaranteed according to the Swiss Constitution14. Swiss federalism
does not promote equality of living conditions among the different Cantons. Diversity is
only possible if human beings pay the price of economic discrimination among different
Cantons and even different municipalities. Swiss federalism has always paid this price for
the sake of fiscal autonomy of the Cantons. Equalization would mean centralization and
this would destroy diversity. With the European Union, which promotes an open market based
on equal opportunities, Switzerland has to face a new period of federalism.
In a state with fragmented society, solidarity is not only an issue
between individuals but just as much also between the respect of different cultural
communities and religions. Thus, solidarity as basic element holding the potential
conflicting society in Switzerland together has to provide equal opportunities not only
for individuals, but also for communities. Equality of community may often have even
priority with regard to equality of individuals. This may be the very reason, why the old
and the new Constitution did (and still does) not have any provision guaranteeing equal
opportunities among individuals or guaranteeing equal living conditions for the whole
population. It gives equal rights and the 'right to be equal' as part of a minority
the same value.
The understanding of equal rights has accordingly two different
meanings: The right to 'be equal' and the right to 'equal rights'. If persons
belonging to the Romansh minority have only equal rights, they will always be considered
or they will consider themselves as second class citizens. In a totally equal society,
they remain a tiny minority, which feels de facto discriminated in a state, which
reduces the citizen to an only political person naked of any culture. If they have on the
other hand the right to be equal, they must be accepted on equal terms as being part of
their cultural community. A Romonsh speaking citizen needs to have the same value as part
of his community just in the same way as persons belonging to the majority of the German
speaking community. It is obvious that Switzerland is seeking a balance between equal
individual rights and the right to be respected as equal although belonging to a minority.
A. Cantonal Autonomy (self rule)
1. Cantonal Sovereignty
The state according to the continental law perception is the Leviathan
according to the social contract theory of Thomas Hobbes. Sovereignty is perceived as a
'Big Bang', out of which the legal system, the state, the constitution making power,
legitimacy and court jurisdiction did emerge. The supreme power and jurisdiction cannot be
divided. Either the competence-competence belongs to the Federation or to the Cantons. If
it belongs to the Federation, the Cantons cannot be states. A state without sovereignty
cannot exist; States and sovereignty are indivisible15. Those, who still
advocate this theory16 of absolute sovereignty, cannot accept the idea of a
division of sovereign powers17. Although in theory sovereignty is not
divisible, the old as the new constitution claim the Cantons to be sovereign as far as
their sovereignty is not limited by the Federal Constitution (Art. 3). The residual power
remains with the Cantons, which as sovereign units handed over partial sovereignty to the
Confederation.
This sovereignty is limited, but Cantons dispose of all traditional
state powers, as they hold all three branches of Government: Legislative, executive and
judicial power. They also have a limited constitution and even treaty-making power (art.
56). They decide on their democratic system and determine the power of their sovereign in
their system of direct democracy and they decide on their own structure of
decentralization including the powers of local authority. Much more important is the
legitimacy of state government. This legitimacy does not depend on the federal legitimacy
but on the peoples of the respective Canton. Cantons do not derive their legitimacy from
the federal government, their power structure is and has to be legitimized by their own
people. Thus, the legitimacy of the federal and cantonal powers in Switzerland does depend
on different constituencies it is a composed legitimacy and a composed sovereignty.
Sovereign are the people (art. 148 par. 1), which give legitimacy to the state power. In
Switzerland, depending on its factual diversity, the constituencies, which provide
legitimacy are divided by the federal and cantonal sovereign.18
2. Are cantons 'States'?
Are cantons 'States'? This question is related to the European
understanding of the 'state' as a collective unit conceived as the fountain of justice
and law. It is related to the European perception of the theory of the state, which has
been developed parallel to the building of the European nation state in the 19th
century. The question, whether Cantons have to be considered as states, has concrete
consequences in particular with regard to international law. International law still
considers states as units and only subject to international law. However, in strongly
decentralized federal states the subjects of the federation are also participating in
international decisions and specially in the international treaty making.
As states, the Cantons decide on their own constitution. They have a
limited - it is true - but still undisputed constitution-making power. The Preamble of
the Constitution of the Canton of Jura for instance invokes the French Declaration of
Human Rights, the Universal Declaration of Human Rights and the European Convention on
Human Rights. Power of the governmental branches are not derived from the Federal
Constitution or federal law, they depend on the legitimacy of the people of the Canton. If
federalism can be a response to multiculturality, the Cantons as basic holders of cultural
communities have a legitimacy, which is not derived from any other unit than from their
own people, the very constituency of the Canton.
3. Autonomy and Division of Powers
According to art. 3 of the Constitution19, all powers of the
federal government have to be worded out in the Federal Constitution. As Cantons have
residual and original power, their competencies are not mentioned in the Constitution.
According to several cantonal Constitutions the residual power did even remain on the
municipal level. According to the Constitution of 1874, the federal Government could only
claim competencies by interpreting the explicit articles of competencies of the
Constitution. This has changed with the new Constitution. According to article 42 par. 2,
the Confederation shall assume tasks, which require uniform regulation. This article can
be given a very broad interpretation. If this would be the case, the federal legislature
would factually decide which competencies are needed for the necessary uniform
regulations. All these articles have been drafted with the idea, that the new Constitution
will, contrary to the old Constitution, provide a constitutional review of statutes. This
'revolutionary' proposal did not get the approval of Parliament. Thus, it will be in
the only jurisdiction of the federal legislature to decide, to what extent article 42 par.
2 can be used for federal competencies without explicit constitutional provision. Will it
have the same impact as the American commerce clause of the US Constitution?
4. Federal Standards and Principles
Swiss Federalism has followed the tradition of all federal states in
Europe including the 'executive federalism' of the European Union. These federal
states provide as major policy the implementation of federal law by the agencies of the
federal subjects. There are usually no federal agencies dealing directly with the
implementation of federal law into reality. This is the responsibility of the Cantons.
Thus all federal statutes and ordinances are in general interpreted in first instance and
applied by cantonal administration and controlled by cantonal administrative courts
depending on cantonal administrative procedure. This type of federalism is called
'executive federalism' (Vollzugsfoderalismus)20. This very principle of
executive federalism is for the first time now explicitly provided in art. 46 of the new
Constitution. Executive federalism is based on a hierarchical relationship between Cantons
and federal government in all matters of federal competencies.
Taking this context into account, federal authorities try to establish
a new policy with regard to cantonal administration. They want to leave detailed
regulations to the cantonal legislature and to restrict themselves to policy making, to
issuing federal standards and principles and to empower the Cantons to implement those
principles within their own legislation. So the competencies given to the Confederation in
the Constitution are usually restricted to the legislative powers. Implementation of the
statutes is part of the residual power of the Cantons. This policy has not changed with
regard to the new Constitution. In fact, the Cantons have the experience to deal directly
with their citizens. If federal agents would implement federal law within the Cantons,
resistance of the population towards unknown federal agents coming from different ethnic
communities would be very provocative21.
C. Partnership between Confederation and Cantons
1. Solidarity
A couple of years ago, the Canton of Basle introduced in its
Constitution a provision, which imposed the cantonal authorities to fight with all legal
means against any atomic power plant, which threatened to endanger the population of the
Canton. As cantonal constitutions have to be approved by the federal parliament, the
question was, whether such constitutional provision, which may be contrary to the general
interest of the Swiss population depending on atomic energy, would be acceptable.
Parliament did approve the amendment with the argument, that authorities are only obliged
to use legal and not with illegal means in their struggle against atomic power plant.
At almost the same time, the federal Parliament had to approve the
Constitution of the Canton of Jura. This new Canton, which has been established out of the
secession of the catholic and French speaking part of the Canton of Berne, provided in its
Constitution a provision, which enabled the cantonal government to foster political
tendencies of the remaining Protestant but French speaking neighboring minority of the
Canton of Berne to secede from the Canton and to join the new Canton of Jura. This article
has been considered as a provision, which would stir up secessionist conflicts within the
Canton of Berne. The federal parliament did not approve the article although it did not
empower the new cantonal authorities of the Jura to use illegal means.
The issue in both cases is solidarity. In the Basle case, it has been
considered, that solidarity is not violated. In the Jura case, the federal parliament was
of the opinion, that the constitutional obligation to foster secession of a neighboring
region violates the principle of solidarity. The very issue with regard to solidarity is:
What solidarity the majority can reasonably and legitimately expect from the minorities,
what solidarity is necessary from the majority in order to have legitimacy with regard to
the minorities?
A federation (foedus, alliance) can only exist on the bases of the
solidarity of its partners. Partnership is indispensable between the Cantons but also
between the federal branches of government and cantonal branches of government. Without
such solidarity, the Confederation cannot exist. This is the philosophy behind article 44
of the Constitution, which reads as follows:
'1 The Confederation and the Cantons shall collaborate, and shall
support each other in the fulfillment of their tasks.
2 They owe each other mutual consideration and support. They shall
grant each other administrative and judicial assistance.
3 Disputes between Cantons, or between Cantons, and the Confederation
shall, to the extent possible, be resolved through negotiation or mediation.'
In fact, federalism in such a small country as Switzerland is only
possible if the separation of powers finds its complementary system in a network of
informal co-operation on all levels of government and administration including also labor
unions and economy, the so-called 'social partners'. This network might often not bee
very transparent, as it is informal. But it is this comity of different partners, which
does finally hold Switzerland together. The complexity of state tasks and state
obligations need such kind of co-operation not only among magistrates and elected
authorities, but also just as much among civil servants of federal and cantonal
administration. This is the content of Art. 44 par.1. 22
Although this provision was not part of the old tradition, its content
was living reality. Without this reality such provision would remain on paper. But because
it has been written out of long lasting political experience, it is only the formal and
legal ratification of an attitude, which is a historic reality.
The explicit obligation to solidarity is to be found in par. 2 of this
article. This is not limited to an obligation of loyalty as it is the case according to
the German constitution for the German Lдnder. It is an obligation to solidarity, which
goes beyond loyalty in the sense that it is less hierarchical and more driven to
partnership. If partners, in particular those representing the majority are not prepared
to sacrifice some of their interests for the sake of the whole unity, federalism will
sooner or later brake into pieces23.
2. Supremacy of Federal Law
Not all federal states have clear provisions to guarantee the supremacy
of federal law24. The Swiss Constitution has already since the
beginning of the Confederation followed the American model of the supremacy clause25.
As according to the Continental law systems, the 'law' must be a unity in which
different bills, statutes, ordinances of federal, cantonal and municipal governments are
integrated into a clear hierarchy. This is today self evident for the German constitution26
as well as for the European Union27. Security of law and in particular equal
protection can only be guaranteed on the bases of the principle of the supremacy clause.
In the old Constitution, the supremacy clause has been hidden in the
provisions regulating the transition. The new Constitution determines clearly in art. 49:
'Federal law takes precedence over contrary cantonal law. The Confederation shall ensure
that the Cantons respect federal law.'
The Constitution thus implements Kelsen's philosophy of hierarchy of
law.28
3. Constitutional Review and Rule of Law
Switzerland belongs to those states, which introduced already in the 19th
century constitutional review. But this constitutional review was limited to the review of
cantonal statutes by the Federal Court. It is true that at that time the federal system
could only function, when citizens were able to defend their constitutional rights against
the cantonal legislature before a federal court29. Thus, the
Constitution of 1848 provided already a very limited possibility of the citizens to sue
their Cantons before the Federal Court and to defend their constitutional rights against
violations by cantonal authorities. This constitutional protection was indispensable. The
power to defend constitutional rights against cantonal authorities is also provided in the
new constitution.30
However, although there have been many initiatives in our history to
introduce also the possibility of constitutional review of federal statutes, Parliament
did finally reject all those proposals. The majority of the Swiss is still too much
committed to the idea of Rousseau and his 'volontй gйnйrale', that bills and
statutes are not only written law but the very implementation of justice, which can not be
abolished by a court decision. The legislature is the highest representative of the nation
and therefore issues the volontй gйnйrale, which can not be questioned for what any
constitutional reasons ever. As all statutes, which passed Parliament are subject to an
optional referendum (art. 141), they are considered to be ratified either silently by the
people, which did not use the right of referendum or explicitly because they have been
approved by the majority of the people.
There is no judicial body, which would have the legitimacy to put into
question, what has been tacitly or explicitly ratified by the sovereign. This argument
proved even today to be more convincing against all traditional common law argumentation,
that men should be governed by law and not by men31. As consequence, the
Cantons have no possibility to defend their autonomy against infringement of the federal
legislature. Constitutional review thus has remained to be a one way road against cantonal
violations but not against violations of the federal legislature.
4. New Federal Responsibilities of the Confederation.
Diversity and autonomy have been guaranteed up to now by the clear
constitutional restriction of the federal powers. Direct democracy, the guarantee of
cantonal autonomy in the Constitution and a political climate defending and promoting
federalism have been the real guarantees of the Swiss multiculturality. These instruments
have been developed for the settlement of conflicts and for the defense of minority
interests. The new Constitution conveys from now on specific obligations to care, to
support and sustain federalism, diversity, solidarity and comity32. The federal
government has to foster languages, to care for the mutual understanding, to guarantee
peace among religious communities and to support poor regions, big cities and mountain
areas. The Confederation has with regard to its legislation and administration to take
cantonal particularities into account and at the same time to provide largest possible
autonomy to the Cantons (art. 46 par. 2). The Confederation has to respect cantonal
independence and self-rule (art. 47), but it also has to decide in which moment some
regulations on the federal level need to be issued for the sake of necessary uniformity.
(art. 42 par. 2).
IV. Conclusion
Switzerland does not only face globalization, at the same time, that
markets become global, emotions seem to become more local. The local nationalism, which
one cannot calculate and foresee, is a challenge of even greater importance for a federal
country composed of multiple diversity. Big and homogeneous nation-states are confronted
with globalization. Multicultural federal states face additionally 'localization'.
Thus, they are confronted with a double challenge. Globalization diminishes political
capacities and in particular the power of the state to react politically and to develop an
independent political strategy within their territory. Globalisation does promote
centralisation.
Emotional localization on the other hand can only be coped with, if the
political units dispose of high flexibility and the political capacity to find innovative
answers to the requirements of national communities. Internationalization on the other
hand offers to federal units a unique chance to enlarge their political capacities and
flexibility through regional international partnership. In particular, one has to admit
for Switzerland that through the European Union the co-operation of cultural communities
with their neighbor states will broaden and strengthen their self-consciousness towards
the central government. The growing international network between small communities will
open new chances for partnership, cultural development and co-operation.
Those who consider federalism as basic value for a state order, have to
be aware, that federalism in history has been one of the most dynamic, flexible but also
fragile structure for state order. Contrary to the unitary system, federalism can by
formed and developed in great diversity. Shared rule and self rule can be strengthened,
broadened, weakened or restricted. Even the principle of equal rights of federal subjects
is no taboo. There are important examples of asymmetric federal states33. It is
the existing diversity of the society, its tradition, culture and language, the political
values (consumer democracy or citizen democracy), which determine the concrete shape of a
federal state. Those pre-constitutional realities are the decisive factors, which
influence the federal system and create or destroy legitimacy of a federal system. This
openness and dynamism should enable federal systems much better, than inflexible unitary
states to join international organization and to delegate part of their already limited
and divided sovereignty. Thus, federal systems should easier adapt to the modern trends of
Internationalization, European integration and globalization.
For Switzerland the very challenge will be, whether it can transcend
its philosophy and its system of a multicultural society composed of traditional
communities into a system which is open not only to global capital but also to global
labor. Can federalism become a tool to integrate different cultures immigrating in our
country? As most European states, Switzerland is also threatened by racism, which
discriminates foreigners. Will it be able to face this challenge based on the tradition of
diversity and federalism?
_____________________________________
* This
paper has been transformed and adapted by Thomas Fleiner to an international audience from
a common paper of Thomas Fleiner and Alexander Misic, Foderalismus als Ordnungsprinzip
der Verfassung, in: Aubert/Muller/Thurer, Handbuch des schweizerischen
Verfassungsrechts, Zurich 2000, 27.
1 Zurich,
Lucerne, Uri, Schwyz, Obwald and Nidwald, Glarus, Zug, Solothurn, Basel-City and
Basel-Land, Schaffhausen, Appenzell Outer Rhodes and Inner Rhodes, St. Gall, Aargau,
Thurgau.
2 Vaud, Neuchatel, Geneva, Jura.
3 Ticino.
4 Berne, Fribourg, Valais.
5 Grisons.
6 Cp. K. W. Deutsch, Die Schweiz als ein paradigmatischer Fall politischer
Integration, Bern 1976, pp. 21 et seq.
7 Cp. A. Greber, Die strukturellen Grundlagen des Schweizerischen Bundesstaats, in:
Fleiner et al., Constitution 2000, pp. 7 et seq.
8 P. Saladin, Commentary (Constitution 1874), ad art. 3, N 9.
9 A. Greber, Die vorpositiven Grundlagen des Bundesstaates, Diss. Fribourg 1999.
10 D. J. Elazar, Exploring Federalism, Tuscaloosa/London 1987, p. 5.
11 Cp. H. Seiler, Gewaltenteilung, Bern 1994, pp. 130 et seq.
12 W. Kagi, Die Grundordnung unseres Kleinstaates und ihre Herausforderung in
der zweiten Halfte des 20. Jahrhunderts, in: Festschrift Schweizerischer Juristenverein,
Basel 1964, p. 16; Ph. Mastronardi, Strukturprinzipien der Bundesverfassung?, in: Beihefte
zur ZSR 7, Basel/Frankfurt a. M. 1988, pp. 28 s., 37 et seq.
13 This article has originally been drafted to limit the legislative
competencies of the federation, in practice it became the very provision for the creation
of unitary law cp. the German Supreme Court case law: BVerfGE 18, 415; 26, 383; BVerfGE 4,
127; 26, 383; 78, 270 .
14 Cp. K. Hesse, Der unitarische Bundesstaat, Karlsruhe 1962, and H. Abromeit,
Der verkappte Einheitsstaat, Opladen 1992.
15 Saladin, (note 5), N 41
16 For a thorough analysis cp. M. Imboden, Die staatsrechtliche Problematik
des schweizerischen Foderalismus, in: Ders., Staat und Recht, Ausgewahlte Schriften und
Vortrage, Basel/Stuttgart 1971, pp. 175 et seq.
17 Hamilton, Federalist Papers, Nr. 33
18 Cp. also Saladin, (note 5), N 47.
19 Cp. also art. 42 par. 1 Constitution.
20 P. Saladin, Rahmengesetzgebung im Bundesstaat, in: Die Kunst der
Verfassungserneuerung, Basel/Frankfurt a. M. 1988, pp. 189 et seq.
21 Th. Fleiner (note 19), 17/28 ff; L. Tribe, American Constitutional Law,
2. Ed., Mineola (N.Y.) 1988.
22 For the co-operative Federalism cp. Ch. Domicie, Federalisme cooperatif,
in: ZSR 1969 II 743 et seq.; U. Hafelin, Der Kooperative Foderalismus in der
Schweiz, in: ZSR 1969 II 549 et seq.; critical P. Saladin, Bund und Kantone, in:
ZSR 1984 II 590 et seq.
23 To the loyalty issue ('Bundestreue') cp. A. Kolz, Bundestreue als
Verfassungsprinzip?, in: ZBl 1980, 145 et seq.
24 This constitutional right is now explicitly provided in Art. 49 par.1
Constitution.
25 Cp. art. VI par. 2 of the US-Constitution.
26 Art. 31 German Fundamental Law.
27 Cp. EuGH 1964, 1251 ff. - RS 6/64 (Costa/ENEL) esp. N 9-13.
28 H. Kelsen, Reine Rechtslehre, Wien 1992, p. 228-282.
29 Cp. W. Kalin, Verfassungsgerichtsbarkeit in der Demokratie, Bern 1987, pp.
24 et seq., 35 et seq.
30 Art. 189 par. 1 letter a Constitution
31 Cp. B. Barber, How Swiss is Rousseau?, in: Political Theory, vol. 13/4,
1985, pp. 485 et seq.
32 Cp. Preamble, art. 2, 69 par. 3 and 71 par. 2 Constitution.
33 Cp. R. Watts, The Theoretical and Practical Implications of Asymmetrical
Federalism, in: R. Agranoff (Hrsg.), Accommodating Diversity: Asymmetry in Federal States,
Baden-Baden 1999, pp. 24 et seq.
