“America does not exist” (Peter Bichsel) – “…and to define America her athletic democracy“ (Walt Whitman)
The editor is the pilot, driver or captain of the users and readers of this Anthology of Swiss law and legal culture. In the following preliminary remarks the editor sets some flags on his guiding mission.
a) The Anthology sails under the leitmotiv “See it fresh – see it whole – see it as it works” from the American lawyer Karl Llewellyn. This stresses the importance of facts first and with respect to the Anthology, texts first. “See it fresh” challenges us to see in an open, undisguised and new way; “see it whole” means we should see it impartially and holistically and – this is key to the whole text oriented and text based approach – “see it as it works” calls on us to understand the functional requirements and operation of the legally relevant social reality in the legal process of globalization. Using this leitmotiv as a metaphor,the Americanization part of this Anthology is a contribution to the weaving of a complex carpet of cultural encounters and exchanges in law and legal culture both before and in particular after World War II.
b) The Anthology situates the texts found as objects trouvées in their broader context from a dynamic and evolutionary perspective in primarily dealing with the emerging new world order after World War II. The Anthology attempts to increase the awareness and the accessibility of legal and cultural knowledge. It caters to a variety of potential uses common in modern knowledge generation and knowledge management in academic writing. The Anthology has in mind the idea and vision of a college of international lawyers and their networking potential under the aspects of comparability, compatibility –and above all of interoperability. The Anthology is a starting platform of knowledge as a particular mis-en-scène of the legal dimensions of the historic processes particularly after World War II. It is meant to to establish and open up access to what Aby Warburg describes as a “Denkraum” (thinking space) for further academic and practical legal work. The Anthology in the part on Americanization does not pretend to present a theory or a theoretical framework of structured sets of information. It is an organised aggregation of information and has the primary function of a tool, facilitating further observations and analysis of the topics; it therefore is situated in the toolboxes of “skills” and not in the “salons” of lofty legal sciences which have obviously missed some – or many? – of the boats in the early – and timely – observation and analysis of the upcoming dramatic and far-reaching changes of the legal process of internationalization and globalization in Switzerland. The theoretical discussion of law and legal practice is a “reality science” as defined by May Weber. The specific features of thought and action in legal processes, such as Americanization, Europeanization and Globalization are often dependent, at the meta-level, on a specific mindset open to globalization; we coin the term a globalization – adequate mindset, which applies a motivational position that favours the exploration of the legal process in globalization and a motivational drive inspired by curiosity.
c) The editor came to the conclusion that in view of the novelty and complexity of the processes and the texts found and in view of the constraints of the specific structure chosen and currently unknown possible uses in a modern electronic platform of communication that the writing of an introduction as a foundation for readers was both advisable and even necessary. Because of the complexities of the processes of Americanisation Europeanisation and Globalisation and particularly due to the fact that the Anthology includes works written right up to present-day, the situation and the role of comments and introductions have a different and more pressing function than in other traditional parts of the Anthology. The totality of the editors comments in English therefore are conceived as a stand alone text. In that context, this introduction plays a key role in establishing, with the reader, certain basic information on the topics and the method of treatment of the topics. The introductions as a module are conceived as represented in the framework of the Anthology also as stand alone texts in themselves. The introduction is merely a non-footnoted description and a narrative of the process of Americanization by the editor for the purpose of this Anthology.
d) The access of the reader and user to the accumulated materials may conceivably be selective in various ways. The reading of the introductions of the three parts for instance, may give the user a prelimanary general overview as to how Switzerland fared in legal matters after World War II and what the processes observed and analysed are. The reading of the “background” and “summary” of the texts may convey a first and standardised insight into the content of the sequence of the texts. These all appear in English irrespective of the original language of the texts. The selective study of bibliographical references might lead to systematic further research and legal analyses. A study limited to the study of the biographies of the authors might provide a revealing insight into the life and the education of the persons, who penned the texts contained within in the Anthology and who were lawyers and professionals sailing in the winds primarily of post World War internationalisation.
These varieties and variants of suggested partial and selective uses in this notion of stand-alone comments of the editor should not detract from the fact that the texts as such and as a whole are at the centre of the Anthology and are to catch the interest – this time – of the readers.
e) In this autonomous notion of the comments of the editor there are a series of specific reasons for a stand alone role of the introduction to the Anthology:
The choice of a new and different method of selection and description in the Anthology by establishing a process orientated perspective is better understood with an introduction. In view of the fact that the Anthology is a work in progess, the transparency of comments thereby established in introductions are a key element to communicate the method and the content of the endeavor; in addition the fact that a fully developed method under the heading “how does law travel”, as the pivotal element of the selection and the description of the phenomena does not exist, in particular merits comment. The fact, that the rigid structure spreads and disperses the knowledge found the backgrounds, summaries, texts, bibliographical references and biographies calls for a summary of the essential aspects in the form of general comments and introductions. The limitations of the primarily text orientated Anthology requires a re-integration complementing the texts with remarks from professional lawyers and shapers of legal reality as well as institutional environments breeding the respective legal creativity, if one wants to creatively deal with broader concepts of legal culture beyond law. In that context it has to be noted, that in Switzerland the discipline of cultural studies as part of modern disciplines of social sciences and humanities, unlike in anglo-saxon academic environments, is not yet fully developed, this particularly holds true with regards the issue of legal culture in the discipline of law. This enlarged field of observation and analysis can only be grasped by comments in the Anthology and introductory texts. The same holds true as regards to the inclusions of a modern multi– and transdisciplinarity including neighbouring social sciences and humanities which are also relevant to law and legal culture.
As stated above, the comments and introductions are autonomous and are stand alone texts in the form of a non-footnoted narrative. It is legitimate and necessary to attempt to make accessible to the reader and user the preliminary results of the findings of the work of the editor. We have to accept that in various areas full fledged academic knowledge does not yet exist however further research may shed more light on those findings.
f) The Anthology is marked by the professional education and professional work of the editor as a practitioner in international legal practice and as a professor in academia. Jens Drolshammer is Professor Emeritus of Law at the University of St. Gallen, Switzerland and a founding partner of Homburger Rechtsanwälte, an international commercial law firm in Zurich. He practiced internationally for many years, dealing with issues of European and American law and legal culture as well. He is a Swiss born citizen of partially Norwegian and German origin and spent his educational and professional life in post World War II and post Cold War times. He studied law at the University of Zurich, Geneva as well as at Michigan and Harvard Law School. He spent an aggregate of approximately three years in the Swiss army, mainly in strategic matters and has been a member of the International Institute for Strategic Studies for more than twenty years. He has taught at the law school of the University of St. Gallen for more than thirty years, primarily on American law and American legal culture and on complex transactions. From 1999 to 2008 he has been a visiting research professor at the Center for European Law Research at Harvard Law School mainly focusing on his projects in the area of globalization and the americanization of law and legal professions. Therefore and faute de mieux he also an author of various texts in the Anthology. The editor presently as an emeritusis an individual entrepreneur without a university chair, secretaries, scientific assistants and research grants. He revels in the lower surgery of generating tools to better grasp the dimensions of the new world order after World War II and after the end of the Cold War by looking at the processes in the areas of Americanization, Europeanization and Globalization of Swiss law and legal culture. He shifted attention and work into this craftsmanship of lawyering after having realised that the conceptual, terminological and scientific suboptimalities and the limits of dealing with the “travels” of law and “impacts” of foreign legal cultures on the sea of Globalization are – as Americans say – “an elephant too big to chew”. In this search for tools the editor had to constantly strive to juggle between search and vision, because he realised and is convinced, that knowledge of law and legal culture in its historic and international dimensions is a part of the general education of a present-day national or international lawyer as it always has or should have been. The editor does not regret to have worked on this tool as a “lonely longdistance runner” and has read more than four thousand pages of preselected texts in order to attempt to find a working structure and a tool kit to better understand the processes of Americanization, Europeanization and Globalization of Swiss law and legal culture. Without this search of the phenomena and the corresponding conceptual bricolage and collage one is lost with his one-man-kajack on the sea and in the fog of globalization.
g) The part Americanization of Swiss Law and Swiss Culture of the Anthology uses two leitmotive: “America does not exist” is the title of a children story of the Swiss writer Peter Bichsel. “… and to define America and her athletic democracy” is from the American writer Walt Whitmans work Leaves of Grass. Besides the parts of Europeanization and Globalization the part on Americanization uses the idea of “travels” and “impacts” of law and legal culture as a guiding principle to describe the complex and underresearched legal processes. The metaphorically and imaginatively guiding principle is an analogy to the work of the literary critic in the essay “Travelling Theory” and “travelling Theory Reconsidered” of Edward Said. The part on Americanization is to be seen under the general Leitmotiv “See it fresh – see it whole – see it as it works” by the American Lawyer Karl Llewellyn.
1.1 Purposes of the part on Americanization and the relationship to the parts of Europeanization and Globalization of Swiss law and legal culture
This part of the Anthology intends to in¬form as to how Switzerland, Swiss law and legal culture fared in the post-World War II era’s dramatic internationalization of the historic, political and societal processes of an increasingly globalized world. The impact of of World War II – and later of the end of Cold War – has been far-reaching beyond what is generally recognised. Swiss law – next to the influence of European law – has been strongly exposed to the influence of American law by means of legal education and by means of increasing business relations in the post World War II era to present days.. Yet, while the influence has been one sided in recent times, Switzerland being one of the early European democracy and Federacy was of interest to the emerging United States. The purpose of this part of the collection is to recall the changing interaction between these two very different legal cultures over time. The selection delves back through the history of the legal cultures of Switzerland and the United States and attempts to grasp the most salient cultural and political transfers and encounters in the legal relationship between the two countries.
The first texts show the influence of Swiss law and legal culture on American law and vice versa at the time of the formation of the United States as well as the influence of American law and legal culture on the formation of the Swiss constitution in 1848. The broader perspective of the Anthology on legal culture and a special notion of Swissness shows an amazing involvement of Swiss emigrants such as Johann August Sutter, Henri Wirz and Louis Agssiz in matters of law and legal culture before and after the Civil War.This part of the Anthology only contains one such text, in which the American political scientist Karl Deutsch has described the Swiss model of fed¬eralism as a paradigmatic example of political integration. This analyses led among others to Karl Deutsch’s cybernetic theory of government described in the book The Nerves of Government. Other examples of American scholars such as Max Rhein¬stein’s analysis of the substantive law on divorce on the Swiss border in the Canton of Ticino and Italy and the field studies of the Nobel Prize-winning political scientist in economy, Elinor Ostrom, in her book on the commons as long enduring, self-organised, and self governed organisations of communal tenure in high mountain meadows in the Canton of Valais are outside the scope of the collection. The Anthology eventually and mainly focuses on the effects of American law on Swiss law after the turn of the twentieth century.
The Anthology is basically limited to the written analysis of direct and indirect influences and impacts of American law and legal culture on Swiss law and legal culture. In the absence of texts by non-Swiss authors on this subject, the Anthology is inherently limited to texts by Swiss authors who are mainly interested in the development of Swiss law and have written about being on the receiving end of these influences and impacts. The selection of texts attempts to be indicative and informative for relevant areas of Swiss law and legal culture including influences of American law on the judicial, legislative and administrative process of law as well as on Swiss legal professions and on Swiss academia.
The absence of texts by non-Swiss authors even in the time after World War II should not obscure the fact I that there are important third party insights into the nature and quality of Swiss law and legal system from an international perspective. In legal practice, the relevance of Swiss law reached far beyond the political and theoretical writings contained in written texts of legal scholarship. The Swiss legal system is an established and major factor of the general competitivity of Switzerland as a nation. This has in particular been shown by the rating methodologies and ranking reports such as the Competitiveness Report (WEF), the World Competitiveness Yearbook of the IMD, the Property Rights Alliance International Property of Rights Index (IPRI), the Index of Economic Freedom of the Heritage Foundation, the A.T. Kearney indices and the Mercer Human Resources Consulting Index. Aspects of Swiss law and legal culture are predominant in those rankings of Switzerland as a nation. The most important indices are 50% based on annual questionnaires addressed to entrepreneurs. The results of the annual ranking constitute a significant and persistent post-World War II legal reputation of Swiss law and legal culture from an international perspective; this is another dimension of Swiss legal culture not reflected in an Anthology limited to the publication of legal texts.
Overall, the phenomeon of the Americanization of Swiss law and legal culture is still vastly underresearched. The texts are scarce in number and late in date of publication. This leads to a spotty patchwork of texts which usually deal with specific issues and do not lead to a consistent and overall view of the post-World War II phenomena of trends of Americanization. There are obvious missing links dealing with the process of Americanization in Switzerland. We shall deal in this introduction, with considerations on a methodology of the observation and analysis of the legal transfer and encounters between Switzerland and the United States, with a special emphasis on the period after World War II.
1.2 Swiss Law and Legal Culture faced with the trend to Americanization after World War II – Elements and causes of the accelerated change – from Pax Americana to Lex Americana and beyond?
Beyond the historic relationship between Switzerland and the United States, the historical discontinuities of the shift of power and the accelerated changes after World War II had an immediate and steadily growing, direct and indirect influence on Swiss law and legal culture. We focus in this introduction primarily on the legal relationship between the two countries after World War II. We first illustrate the causes, the elements and the milestones of the trend to supremacy of the United States. –Of course, not all effects of an increasingly internationalised world – particularly in the information society – are determined exclusively by the trend towards the hegemonic influence of the United States. Leading commentators also believe that many of the effects will remain in any event, whether or not this dominant influence is later reversed. We shall limit our remarks to a number of representative areas and look at them from a Swiss point of view.
Without necessarily arguing for a causal link between aspects of “increasing hegemony” and “Americanization”, these developments – nowadays contested – are all subject to a “tendency for Americanization”, the complexity and extent of which were noticeably accelerated by the spread of the information society. Some key factors for this development, in the area of the economy for instance, had their origins well before World War II.
In order to facilitate for the reader and user to approach the texts in this part of the Anthology from the intended holistic view we use first key elements and causes of the accelerated hegemonization of the role of the United States, the focus on how does American law and legal culture “travel” and how does it “impact” on Swiss law and legal culture can only be adequately grasped if these elements are mentioned at the outset.
From a strategic point of view the American dominance was manifested in three ways.
Firstly the values propagated by the United States, such as liberalism and democracy, have spread almost all over the world since the end of the Cold War. They are prevalent in a significant part of the current system of international nation- states.
Secondly, only the United States is currently still able to project its power on a worldwide scale – this of course is contested by the shift of power to the East – this military superiority is likely to increase further in the sphere of high technology.
Thirdly, the United States also enjoyed superiority – most recently questioned in the area of “soft power” and still has a – albeit more and more challenged – controlling influence over substantial parts of the international political agenda (Andreas Wenger). It is precisely this combination of law and power in foreign relations that has raised fears of increasing arrogance on the part of its leadership. The American position as to the role of law in the post-World War II internationalization of the world can be described as ambivalent, after the United States has in recent times repeatedly paid little heed to international treaties and has noticeably failed to practice the virtue of combining power with cooperation. We cite in this connection the United States’ failure to participate in the International Criminal Court and the Land Mine Treaty, its failure to pay its debts to the United Nations, the manner in which the NATO intervention in Iraq, in Afghanistan, in Kosovo and most recently in Lybia were initiated and carried out and how American courts are being instrumentalized to set a national agenda for international conflicts, not to mention the manner in which the issue of the Holocaust has been treated.
From an economic point of view – “the causes of Americanization of the economy”. The influence of the United States began to make itself be felt at the turn of the last century, when American methods of production began to spread. During the 1920s, Europe started to adopt US methods and attitudes under the general heading of “rationalization”. Without actually adopting US management methods, European companies employed both concentration and cooperation in order to obtain greater economic and political influence.
These strategic factors of power and influence of the United States have a content and direct impact on the substance and the style of the use of law in US foreign policy.
After World War II, the United States for the first time pursued a specific policy of reshaping European states after its own image, or at least to influence them as far as possible in this direction, of which Switzerland was not a direct address.. The preconditions for obtaining aid under the Marshall Plan led to political and regulatory change. The United States was responsible for the creation of the General Agreement on Tariffs and Trade (GATT now the World Trade Organization, WTO), the OEEC (now OECD), the Bretton Wood System and other institutions conceived in accordance with the economic and legal values of the United States. In terms of the Americanization of the economy, the most crucial change was the change to mass production and thereafter mass distribution, as well as extensive direct investments from the United States in the 1960s and 1970s. Whereas in the 1970s and up to the mid 1980s there was, relatively speaking, less influence coming from United States, a lasting wave of Americanization has since the start of the 1990s brought about a change in Europe from the Old Economy to the New Economy.
The United States informally supported and influenced the shaping of the European Economic Community (EEC). In particular, strong disciplines on competition law and policy reflect the tradition of the Sherman Act and its importance in fostering and protecting democrary, beyond today’s predominant consideration of economic efficiency.
From an educationl perspective Americanization can be seen first of all in the changes that have taken place since the 1980s through an even greater adaptation to the US system of higher education and its competitiveness. US legal education had a profound influence in educating Swiss lawyers, both academic and practitioners. There is hardly a professor on a law faculty or a partner in one of the leading law firms who had not obtained a legal degree from one of the leading US universities. The outreach of these universities was mainly triggered by extensive educational programmes aiming at re-education of European, in particular German lawyers (Fulbright programme) from which also Swiss lawyers were able to benefit. The attractiveness is, based upon a number of factors (see also the text by Arthur van Mehren and Peter Murray).
Firstly, this competitiveness is based on the enormous openness of US academic institutions towards society at large and a corresponding revoling door policy shaped by the rotating sytem of US administration which is completely absent in Europe. American science and academia actively seek an exchange with the industrial and commercial sector by offering their goods, products and innovations on an increasingly global marketplace.
Secondly, the course credit system was suitable for accepting foreign students. Long before the credit system was introduced in Europe (Bologna System), students in the US received a certain number of points for completing certain parts of their course, but are at liberty to choose where and when they carry out the work demanded of them. The opportunity to choose from a menu of options is an important precondition for US institutions of higher education being able to reach out to their students anywhere in the world.
Thirdly, education and training is based upon problems and not codification. The complexities of the legal process are understood and discussed on the basis of case law and the Socratic method. Other than European legal education focusing on positive law, legal education in the leading schools in the US is forward looking and policy oriented.
,Thirdly in terms of teaching, the efforts are focused on bringing about the success of students, on maximizing their achievement as well as on “learning by doing”. A shorter period of training focused on vocational relevance also responds to the increasing need for further education and the paradigm of lifelong learning. In the discipline of international relations, the output and methods being introduced through this Americanization also presents a challenge through increasing fragmentation and specialisation of academic discourse.
The influence of US law in Switerland is partly due to these factors. They influence the methods of teaching and thinking of professors, for example turning to case law which was crucial in developing human rights protection under unwritten constitutional rules in the 1970s and 1980s. Practitoners, after having obtained a US legal education, were open to introduce elements of US law in contractual relations. Those turning to government work were included to refer to US law in the process of legislation and law making.
Trends in US academicia will remain of importance and will continue to shape Swiss legal culture in coming years for a number of reasons. The editor particularly points to the following observations which are important factors in assessing the role of US academics in legal sciences.
In the spheres of international relations, international history, international law, international economics, international organisations etc., there is a spread of methodological pluralism and new approaches – from structuralism to constructivism to post postmodernism. At the same time new areas of research, from gender, to cultural and identity studies, are a source of interest for some and dismay for others. There is a great emphasis on interdisciplinary working; the associated academic subjects are often included in the curriculum even at the level of undergraduate studies and it is no longer rare to find academics holding two PhDs in associated disciplines. In practice, however, most academic careers are characterised not so much by being interdisciplinary as by specialization and academic groupings are becoming increasingly separated and more specialized in their subject.
Overall, it is difficult for the European observer to avoid the impression that not only a transatlantic political dialogue is becoming more difficult but also that academic discourse in the field of international relations is marked ever less by a “mental interoperability” in the sense of a true international, cultural and political dialogue.
Five factors are especially significant here, which are relevant in assessing the international influences of US legal sciences for the purpose of understanding the majority of texts in this part of the Anthology.
Firstly, academic discourse in the US within the subjects mentioned is turning ever more into a discourse among specialized subcultures. The consequences of this trend can be seen, for example, where traditional associations are split up into competing organisations.Secondly, research remains disciplinary, but legal research is increasingly rooted in empirical research and facts. Thirdly, , the academic debate in the US seems to be focusing increasingly on a national perspective and leaving out an account of the international dimension. This specific American domestic view in turn increasingly comes to dominate the whole of transatlantic communication. Fourthly, this isolationist trend is made all the greater by the dominance of English as the language of discourse, because it increases the predominance of Anglo-Saxon terminology and ways of thinking.Fifthly, although interdisciplinarity is in fashion, the necessary attention at times is not being directed to the development of the theories and methodologies on a metalevel it would require.
1.3 Relevance of the accelerated trend to Americanization after World War II for Swiss law and legal culture
The impact of Americanization on legal systems, legal professions and legal training remain vastly underresearched. More attention has been given to a growing American influence on Swiss legal culture in recent years. In economic terms the influence of US law thas been most likely to be strongly seen in OECD nations; in terms of legal activity they are likely to occur in more proactive, creative activities, and in terms of legal professions mostly within the international practice of law and the legal departments of Swiss multinational enterprises. Lawmaking will probably be more strongly affected than the application of law and law enforcement, and in the training of an international lawyer sooner than in the traditional legal education.
In part, this process of “travels” and “impacts” is being consciously steered, engineered and coordinated by political will and design; in part it is simply occurring of its own accord. Apart from the growth of the information society, it is surely also the media of legal knowledge with the help of modern communication technology that has played an important role in the spread, not only of the knowledge base, but also of a more emotive approach to knowledge about legal processes; this in turn has furthered the process of Americanization. The lack of awareness in the private and the public sector – in part also in the United States – of the significance that law has for the continuity of social and particularly economic processes is another factor favouring the trend for American law to have its effects invisibly. The fact that there is an American tendency to limit oneself to one’s own view of the world, which goes hand in hand with a growing US hegemony, has in recent times made it more difficult for Americans to communicate about their own legal culture and Europeans to understand these developments.
An overall theoretical framework, a common terminology and a systematic approach after Word War II have all suffered and partially deteriorated as a result of a pluralization of different areas of law and a tendency to embrace other social sciences. A repositioning and loss of significance of comparative law and international law, particularly in the United States, even though comparatists are continuing to investigate the relationship between civil and Anglo-American law, do not make this communication any easier, and – an important factor – a generation of jurists trained on both sides of the Atlantic, who after World War II had a common international perspective, are no longer alive or have gone into retirement.
The Americanization of international sets of facts following extensive interpretation of jurisdictional and conflict of law rules continues to challenge the sovereignty of different national legal systems and leads to conflicts of jurisdictions with the US legal system (see case study on the UBS-case In many areas of commercial law, particularly financial services, the highly technical nature and lack of specific national qualities of the subject matter favours the rules being made at financial centers in London and in New York.
1.4 Milestones of “travels” and “Impacts” of American Law and legal Culture
These developments from a bird’s-eye view show the following milestones.
The amazing knowledge of the American founding fathers of Swiss writers on international public law , of the confederation and Swiss law and legal culture in general first lead to an intensive exchange of Swiss legal culture with American law and American legal culture (text of James Hutson , Paul Widmer , text “Federalist Papers”, text “the Antifederalist”).
After the constitution of the United States as a nation, years of influence and inspiration of the Swiss developments towards a modern state followed. According to William Rappard the transformation of the Swiss Confederation to a full-fledged nation-state “was carried out in conscious and deliberate imitation of the American model”.
At the turn of the 20th century, American Swiss diplomats according to Heinz K. Meyer, a Swiss historian working in the United States, looked back on five decades of substantial achievements in their efforts to structure the relations of the two countries. The greatest of these achievements was the Treaty of 1850, a prominent landmark in the history of American-Swiss relations of the 19th century. Friendship was the leitmotif and the basic content of American-Swiss relations from the very start. The United States kept a close eye on the fate of Switzerland, the small second republic in the world, in order to guard against undue turbulences in the revolutionary times in Europe up to 1850.
As part of Switzerland’s active contribution to international arbitration in the 19th century involving the United States as well, the Alabama Case lead to an arbitral function of the then President of the Swiss Confederation with intensive negotiations in the Geneva Town Hall (see R. Probst, “Good Offices” in the light of Swiss International Practice and Experience, in the part on Globalization and text in the part on Americanization).
A milestone in the legal relationship of the two countries at the end of the 19th century was Swiss constitutional law’s influence on various constitutions of western states in the United States, which all were rooted in and inspired by the institutions of Swiss constitutional law of referendum, initiative and recall (see William E. Rappard and James Hutson).
As part of the psychological and emotional aspects of the legal relationship between Switzerland and the United States, it has to be mentioned that the Swiss government – and many Swiss individuals on US soil – actively furthered and participated in the American Civil War (see text by James Hutson and Heinz K. Meier). The misleading expression of the “Sister Republics” was a Swiss invention of an overstated admiration of the United States during the Civil War. The first “travels” and “impacts” of Swiss law and legal culture took place in the American Revolution and in the time of the making of the American Constitution of 1786. It has been part of a friendly cultural exchange in both directions and has considerably contributed to American law and legal culture in early times. The 19th century is marked by a friendly give and take between the first two republics in the world, both legal cultures profiting from each other at important times of their legal and political history. The number of Swiss actively participating in the Civil War and the fate of Swiss emigrants in matters of American legal culture such as Johann August Sutter, Henri Wirz, Louis Agassiz and Emilie Kempin-Spyri before and after the Civil War is remarkable and amazing.
In the 20th century, Switzerland was heavily involved in international arbitration involving the United States and fared well through World War I benefitting from its neutrality with the support of the United States in the background.
The beginning of the 20th century was marked by mutual friendliness in the legal relationship between two countries. If one looks at milestones, Switzerland actively became a “protecting power” of the United States. The United States actively but tacitly helped Switzerland to get through World War I based on the principle of recognised and guaranteed neutrality. In the peace conferences in Paris following World War I, President Woodrow Wilson was convinced by the emissary of Switzerland William E. Rappard to choose Geneva as the headquarters of the League of Nations. This was a paramount milestone of the positioning of Switzerland and Geneva in particular on the map and the landscape of a world after World War II from an international and later from a global perspective.
The fact that Switzerland did not participate in the military operations of World War II is partly due to it’s “guaranteed neutrality” established by the Convention of Vienna of 1815 and also because the country was not militariliy attacked by Hitler. The consequence of its inaction was that Switzerland was immediately isolated after World War II vis-à-vis the United States. The legal relationship gradually suffered and selectively deteriorated over the next fifty years, despite the fact that Switzerland participated with its “good offices” in conflicts of United States foreign policy and also acted as a protecting power of the United States.
The period after World War II was consecutively marked by a series of cases of extraterritorial application of US law. Dark spots are the Holocaust cases and – in the aftermath of the UBS case – the still ongoing cases and negotiations in connection with international legal assistance in tax matters based upon the alleged systematic use and misuse of the Swiss banking secrecy in favour of American taxpayers. A late – and one sided – issue was the late realization of Switzerland of the considerable involvement of Swiss in American slavery after the turn of the millennium.
The process of “travels” and “impacts” of American law in the post-World War II era became more and more a one-way street that several times reached the point of imminent conflicts of jurisdictions.
It is a fact – succinctly described in the texts by Detlev Vagts and Dietrich Schindler – that Switzerland after World War II in the legal relationship with the United States became and stayed isolated, an important milestone being the negotiation of the so-called “Washington Agreement” in connection with blocked assets of Nazi-Germany (see text by Daniel Frei).
In the times after World War II – a major focus of this Anthology – the legal relationship between Switzerland and the United States gradually deteriorated from a friendly and emotional closeness to a reality-based and contested coexistence in view of the rising dominance of the United States which lead to a raising pervasive influence on Swiss law and legal culture.
As milestones, after World War II one finds a series of prominent diplomatic roles of Switzerland on behalf of the United States at various times and during various crises, which persist until now. This role of Switzerland as a “protecting power” was constantly rising based upon the diplomatic philosophy of “Good Offices”. Switzerland was asked to take over an important role on behalf of the United States after the Suez Crisis of 1956 and the Cuban Missile Crisis of October 1962; after the end of the Korean War Switzerland became a part of the Neutral Nation Supervisory Commission and the Neutral Nations Reparation Commission and finally had a prominent function in the Iranian Hostage Crisis.
The process of “travels” and “impacts” of American law andlegal culture after World War II as described through the eyes of American lawyers in the excerpts of the book by Arthur van Mehren and Peter Murray led to a series of conflict of jurisdictions as a consequence of the United States applying its laws extraterritorially. Starting with the Swiss watchmakers case the developments escalated to formal conflicts of jurisdictions in the Mark Rich case in 1980/81, the UBS case (see case study texts) and most recently in the Tinner case concerning the involvement of Swiss citizens in the trade of nuclear plans and secrets on behalf of Pakistan. The United States used systematic and resourceful and direct application and enforcement actions in the alleged assistance to tax evasion based upon the long standing business model of Swiss banks based upon provisions of Swiss banking laws; a common scenario of indirect influence of the United States is the use of international organisations such as OECD in issues of money laundering, corruption and money of potentates, which constantly propelled Switzerland into limelight in its legal relationships with the United States. A particularly dark and emotional chapter of the legal relationship between the United States and Switzerland was written after the beginning of the 90s of the 20th century, which is represented in the Anthology by an extended “case” – study, “Neutrality, Morality and the Holocaust”.
Switzerland and the United States presently, in the aftermath of the UBS case, are in a constant and resourceful manner involved in a complex muddling through, in particular in tax evasion matters based upon a specific business model of Swiss banks making use of the Swiss law provisions on banking secrecy. These conflicts are still presently going on.
1.5 Types and Examples of “travels” and “impacts” of American law on Swiss Law and legal Culture
We again primarily focus in this introduction on the developments after World War II. This should not detract from the fact that more than than the half of the texts in the part of Americanization deal with cultural exchanges and encounters between Switzerland and the United States that took place in the 18th, 19th and early 20th century.
In this introduction on the “travels” and “impacts” of American law and legal culture the reader from a methodological perspective is faced among others with aspects of partial reception, harmonizations and legal adaptations. He maybalso be faced with the influence and integration of American law in so called mixed legal systems as well as in supranational legal systems like in the EU. American law is and was in various geographic areas the law of the occupier while other areas were and continue to be faced with so called legal transplants. In yet other areas we note legal exports of American laws in the ongoing competition of exports of law as part of foreign policy or – a salient example – and as part of the proscribing conditions of the financing operations of the World Bank and of the IMF in third world countries based upon US models. After the fall of the Berlin Wall, law and legal concepts travelled in the form of exports of constitutions and laws into transformation countries of Eastern Europe. In recent times, American law and legal culture has established itself as a so-called benchmark in designing new national legal systems. This leads – at times problematically – to transports and travels of American law. American law and legal culture in post World War II is also influenced by a so-called “Soft Power” – or more recently “Smart Power” (Joseph Nye Jr.). That leads to taking over American law and concepts in the respective jurisdictions.
“Routes of travel” and “areas and ways of impacts” of American law and legal culture after World War II from the perspective of American international scholars are aptly described in Arthur van Mehren and Peter Murrays text, which we paraphrase for the purpose of this general introduction as follows.
a) Little attention paid to American law before 1945
Arthur van Mehren and Peter Murray state that unlike Roman law, which exerted influence over the worlds legal system for nearly a millennium or even English, French or German law, which spread to much of the then-civilized world during the 19th and earlier 20th century, American law and legal institutions were not given much attention by other countries until the middle of the 20th century. This was largely because in contrast to the major European powers, America pursued anti-colonial policies; America’s early economic activity was focused on developing its own vast territory; American law was not in a form that encouraged exports and emulation and the international language of discussion and exchange was French and in scientific matters German, and America’s language was widely spoken only within the empire of its motherland and cultural competitor Great Britain. American law has traditionally not been susceptible to easily export and emulation abroad in particular because of its uncodified common law form as well as the peculiar and extreme form of American federalism. These factors changed following the conclusion of World War I. The political and economic strength of the United States following the war and during the latter part of the 20th century have led to exports – “travels” and “impacts” – of American public and private law in several forms.
b) Areas of influence of American law after 1945
According to Arthur van Mehren and Peter Murray, the modern roots of European constitutionalism were clearly found in the American theory of government. US law played a major and decisive role in shaping the German Grundgesetz and later the EEC treaty. A key avenue of influence was human rights in international public law and fundamental rights in constitutional law. Many areas of influence in the post-World War II era were indirect.In important areas of present=day– key lawmaking and law practice – the American influence is profound and ongoing. In the area of American private law in the modern world, it is not any concerted governmental activity on either side of the Atlantic or Pacific that accounts for the current worldwide influence of American law and legal institutions. This is, according to Van Mehren and Murray, the result of private negotiations, in which American law is chosen to govern major transactions; the role of international financial institutions, founded in part by the United States that condition financing participation on American style legal arrangements and a more diffuse but not less effective transmission via educational and cultural means. Private law began to become relevant in London, Frankfurt and Paris in particular because of the increasing internationalisation of major American enterprises. The export of the American private law to protect American economic legal actors has been intertwined by a form of law export that is connected with the kinds of economic and financial transactions themselves. The vehicles for the dissemination of the American legal doctrine and the activity of certain international financing organisation are particularly the International Monetary Found (IMF) and the World Bank.
A similar form of law export has been connected with the activities of the World Trade Organization (WTO).
c) Other areas of influences: civilization, constitutionalism and democracy, public law, language and international law
Another area in which American law has made itself felt abroad – sometimes, according to Arthur van Mehren and Peter Murray, to an inordinate extent – is the field of civilization. The expansiveness of American concepts of international jurisdiction has brought peculiar features of American tort law to the doorsteps of the rest of the world. A welcoming expansiveness of American civil jurisdiction is prevented by American choice of law requiring that sometimes, American legal norms are to be applied to circumstances that seem much more closely related to the legal and social priorities of another jurisdiction.
The aspects of American democracy and its public legal order according to Arthur van Mehren and Peter Murray have been admired since the writings by Tocqueville. Some of them, such as the written constitution and the notion of traditional elaboration of that constitution, have served as models for several developments worldwide. Again American constitutionalism and much of American public law does not lend itself to easy adoption. Themes of public law have found wide spread resistance abroad with the exceptions such as the concept of judicial review and, at times, the institution of jury trial. In those areas where American public law has developed to manage and govern the modern economy, there has been a degree of influence based upon the actual merits of the solutions reached. The influence of American law and legal institutions throughout the world had been furthered by the general acceptance of English as the world language and in recent years the world language of law. The universal knowledge and the use of English language – particularly in connection with the World Wide Web – makes American law and legal culture immediately accessible to practically anyone in the world who has a good secondary education. The lack of theoretical structures of American law makes it, according to the authors, more accessible to people not imbued with the English language from birth.
The influence of American law is closely related to each spread of American popular and general culture throughout the world. In the foreground with respect to law is the American media culture. This phenomenon of popular culture is complemented by the intense interest of foreign lawyers in exposure to American legal education.
The outward orientation, according to Arthur van Mehren and Peter Murray, with respect to its own institutions and rules of private law is not matched by a corresponding receptiveness to international law and supranational regiments governing all nations of the globe, including the United States. The United States has historically been somewhat reluctant to embrace international treaties and alliances. World War II brought the United States out of its traditional isolation although engagement with international law and legal institutions began to diminish after the disastrous experience in Vietnam. It cannot be denied that America’s recent actions have tended to undermine the influence of American institutions of public law in the world at large. “The preconditions pose an interesting dichotomy over the second half of the 20th century, American influence on private law and legal culture, and to a lesser extent international public law has been profound and is ongoing at the same time. American engagement in international law and legal institutions is now seen as rather negative and in disrepute.”
1.6 Lex Americana? - considerations on the diversity and specificity of the “travels” and “impacts” of American law on Swiss law and legal culture after World War II
This Anthology and this introduction to the Americanization sectionare not the place for an academic seminar on the methodological implications of the process oriented observations of the phenomena of “how law travels?” and how law “impacts”. This will have to be the task of further academic research, which as we know, usually produces definitive results much later, if at all. The productivity of the perspective “how does law travel?” as used in the Anthology is obvious and evident even in its preliminary form. This method of observation and analysis of the process of Americanization can not be grasped by traditional concepts and criteria of disciplines of law such as comparative law, foreign law, conflict of law, transnational law and international public law. ‘Making transparent the work process of the Anthology therefore has to work with preliminary results of observations and analysis. We think it is reasonable and efficient, to encourage the user and the reader to make use of some of these early and preliminary findings, since the use of the concept “how law travels?” is key and instrumental in the in the Anthology. This would facilitate a productive shift and change of perspective to grasp the process of Americanization in a process – adequate form and in a more subtle and differentiated manner, if ever the reader and user delves into the texts in the Anthology more in depth.
The complexity of the phenomena of “how law travels” require a multidimensional and multifunctional analysis. The outset of such a development of a methodology would need a deconstruction of the overreaching and obfuscating metaphor of Lex Americana prevailing after World War II and after the end of the Cold War first. A recent German study “Das deutsche Wirtschaftsrecht unter dem Einfluss des US-Amerikanischen Rechts” (German economic law under the influence of US-American law) Liebke- Elsing / Grossfeld / Kühne, 2011, has gone in that direction based upon a series of detailed areal studies on the influence of American Law.. This is a good example to help the reader to spot the issues of the influence of American law and legal culture in post-World War II as part of multidimensional and multifunctional approach to the process of Americanization of law and legal culture in this Anthology.
According to the conclusions of this study the development of the influence of American law has moved to direct influence of American law in areas such as in antitrust law, banking law, financial law, international legal practice, European unification of private law, international civil procedure, international administrative law, international company law, etc. The forms of travelling and the causes of travelling, according to this study, in all the instances may vary considerably with respect to the geographic reach of these influences. The span of influences may lead from partial receptions on one hand to selective regulations of legal institutiones on the other hand. In-depth analyses have shown, that the influence of imports of American law is less intensive in the public part of the legal system than in the system structured and designed based on the freedom of contract. The latter moreover develops and usually grows faster than the former.An important reason for reception according to the concluding summary in the study is a “back log in modernity” (Modernitätsrückstand) such as for instance in the areas of antitrust law, banking law, financial law etc. The vulnerability for reception and the pressure for reception are of course different depending on the areas of law. Factual patterns which are truly international are more prone to receptions. For example, the internationalisation and the globalization of the financial markets brought about a leading function of the United States. Another example reflected in the study is the American influence on the international practice of contracts in the area of mergers and acquisitions. Above all the European Union, according to that study, has become an important factor for reception of American law by the moving of competencies from the member states to the EU.In legal science the phenomena “economisation” has become a major factor of reception. The travelling of the concepts of economic analyses of law in certain specific fields of law are important examples. The growing intensity of law enforcement and the stiffening of sanctions according to the study has become an important factor of reception as well.
Major reasons for this travelling within the legal process of globalization of American legal concepts are economic and social cultural factors. The area of private autonomy and competition with respect to the economic process is a prominent example. The American preference for private law structuring in contracts as well as for private enforcement exert a great influence.
An important factor for this travelling process is the direct multifaceted influences on the legal professions in Europe as well as on the legal languages to be used, an area regularly underestimated by traditional academia that has rarely managed to integrate the so-called world of legal practice in a holistic view.
Reasons for travelling processes and its effects are also the paradigmatic change in legal approaches which are “issue”- and not “system”-focused, the former being more apt to better cope with the process of globalization and its respective legal process. Among the social cultural factors an important fact is that American law and American legal culture in the world is systematically integrated into the world of communication and media.
The editor’s intent is to inject some elements of reasonable “deconstruction” into the penumbras of the obfuscating and often overreaching metaphor from pax Americana to lex Americana? He will point to the respective aspects of diversity and specificity in his comments on “background” and “summary” with respect to some of the texts under C.
1.7 Characteristics and peculiarities of dealing with the process of Americanization of Swiss law and legal culture in Switzerland
Switzerland has a curious record in facing and handling the various challenges of American law and legal culture, particularly after World War II.
A critical look therefore must attempt to find answers to the following questions: What is Switzerland’s attitude to the tendency of a partial “Americanization of the Swiss legal system”? Are “American matters” and tendencies for “Americanization” proper subjects of inquiry, awareness and action for legal policy as far as the Swiss lawyers are concerned when dealing with the significance of legal culture and its effects on Switzerland? Are the impacts of this on the activities of the international lawyers in Switzerland even far more profound and comprehensive than all other influence in terms of the impacts it has on language, on the organisation of law firms, legal departments, legal administrations as well as on their output, workload and infrastructure? How has the process of Americanization been dealt with in written texts by academia and by professionals in practice?
The affinity of Switzerland to the United States and to American law which had originally existed in terms of mentality has been negatively affected by a number of developments and legal conflicts and disputes in the period from World War II to the end of the Cold War and to the turn of the millennium. This is true despite the fact that in Switzerland the legal system, the legal professions and – admittedly to an ever lesser degree – legal education have been far more internationalised and open to external influences than in most other venues in the network of jurisdictions affected by those impacts.
It would be simplistic and misleading to analyse the post-World War II “travels” and “impacts” of Lex Americana as a general and unitary process and to generalise and not differentiate by sectors of law, by legal actors specifically concerned with such developments and by differences of position on a learning curve. In general the private actors have been quicker and more versatile than the public actors (see above). Switzerland is a negative repeat player which has led the United States to adopt some smart and efficient strategies accordingly. There are areas in which reaction patterns of Switzerland are fairly predictable and highly visible, such as in money laundering, corruption and money of potentates: taken aback and by surprise – confusion and blaming – analyses and fairly quick action – and often ending up as “best in class” (Mark Pieth). There are behavioural inadequacies and suboptimalities in Switzerland in dealing with American law and legal culture which are frequently observed. There was and remains for example in our view often a lack of a communicative, competent and assentive attitude and behaviour in dealing with the impacts of American law and legal culture. A growing openness and an accelerated tendancy to address the challenges that can be observed though in the past ten to twenty years; the tide has turned around fifty years after the end of World War II.
Unlike the Swiss exposure to the European Legal System, which has grown historically and which as a consequence of a political finality has to be characterized as a large-scale direct and indirect harmonisation and/or adoption of law, the exposure and the reactions to the phenomenon of an increasing Americanization of the Swiss legal system has been unsystematic, spotty, emotionally usually opaque and, with all due respect, for many years in same areas backwards in response to particular problems. The areas of human rights and fundamental rights in constitutional law are exceptions. Legal science in general came late into the game. At the end of the eighties Wolfgang Wiegand (the first text after World War II) noted that these issues are heavily underresearched and as a consequence only selective and occasional publications could be found. Swiss lawmakers and judicial administrators – exceptions reserved – are less trained in taking account of the impacts of American law in the course of the legislative and administrative legal process. Switzerland seems to have legal practitioners in private practice and in entreprises, officials and judges who are above average trained and more experienced than those in many other countries to deal with international issues. The Swiss legal system has only slowly recognised the dominance of the English language as a new lingua franca in legal matters. Moreover, in particular, governmental administrations have not sufficiently encouraged and practiced communication on Swiss law with third countries and legal communities. This particularly is true with regard to the Anglo-Saxon world.
Among the reasons for the slow dealing with American law and legal culture in Switzerland are the following:
Unlike in the humanities and particularly in the study of literature, American law is not a recognised field of American studies. No university institutes or libraries specialising in American law exist in Switzerland. The Swiss Institute for Comparative Law has no obvious specialisation in the field of American law, irrespective of the fact that the library was conceived and built by American -trained lawyers and library specialists.
Although Swiss lawyers and law students had a comparative advantage after World War II to be accepted in major American law schools, this number has relatively decreased in the past years. It has to be observed that the major purpose of a Swiss lawyer going to US law schools to obtain masters degrees are often for primarily career and curricula vitae purposes. The number of Swiss lawyers continuing to stay for academic reasons or even become law professors in a US law school has decreased lately and is in absolute numbers very small. Swiss universities therefore largely lack an academic knowledge base on American law and legal culture directely aquired in the United States.
Even if the editorial boards of some legal Swiss law journals include American correspondents and even if they occasionally publish texts in English, it is rare to find any pertinent and continuous discussions of the impacts of American law on the Swiss legal system, its legal professions or legal training and education. Switzerland also lacks a specialised professional organisation particularly addressing the “travels” and “impacts” of the US law and legal culture such as the Deutsch-Amerikanische-Juristenvereinigung (DAJV) in Germany.
Despite the growing importance of the mediatisation of the international legal process, there are hardly any serious attempts in leading general and economic media in Switzerland to deal with American law and its associated transatlantic dialogue systematically and critically; the articles are often restricted to fascinating anecdotal matters, scurrilous pecularities on alleged failings of American law and legal culture and tend to focus on those parts of the American legal system that are also described in the American media, which are on the desk of the sophisticated and cosmopolitan Swiss reader every morning at the same time as the Swiss media in any event. There obviously are sophisticated international media dealing with American law and American culture, which have become a major conduit and carrier of knowledge transfer on American legal matters to Switzerland as well.
Swiss multinational companies have been involved in controversial cases before American courts and administrative authorities and have – to put it mildly – made their own contribution to developments of the history of modern business law of the United States. Companies, usually having English as a corporate language and usually having important legal departments in the United States, are directly part of the American legal process since American law applies to them directly and therefore naturally sail on the winds of American law and the process of Americanization.
The international practice of law, which has come under competitive pressure to live with increasing legalisation, use of information technology, interdisciplinary working, professionalisation, specialisation, market orientation, proceduralisation, institutionalisation and organisation, is usually the most advanced in dealing with the phenomenon of Americanization, the legal professions being one of the most directly affected parts of the Swiss legal system and the professionals working within it.
These characteristics and peculiarities – critical as they may be – show a marked discrepancy between the actual importance of American law and legal culture for Swiss law and legal culture and the actual dealing with this phenomenon. It is fair to say, that we note a lack of coherent and phenomenological description and further systematic in-depth analysis of the direct and indirect influence and impact of American law and legal culture on Swiss law and legal culture.
The editor is a pilot, driver or captain of the reader and user, as said at the outset. He facilitates access and highlights various roads that might be taken to obtain information on the process of Americnaization of Swiss law and legal culture. Since the Anthology uses new methods of knowledge generation and especially since it includes cotemporary developments there naturally occurs a problem.. That is that the knowledge generated by such new methods has not yet been subject to further anaiysis by the academic or professional community. The process of making the Anthology itself however, produces an agenda for possible further analysis on the process of Americanization. It seems to be inefficient and unrealistic to wait until such further analysis and research has been elaborated in the community of scholars before highlighting their importance. The editor therefore takes the liberty to use as an essential element of guidance some preliminary observations that are relevant for the use of the Anthology. This is all the more warranted in view of the lack of a systematic and coherent present analysis of the phenomenon. From this vantage point we summarize a few basic observations and conclusions on the type and style of texts found and on the education and profession of the authors of the texts. The basic information of the contents of the texts found are contained in the paragraphs “background” and “summary” for each text included.
Most of the texts in this part of the Anthology have been written for special occasions and on special topics. It is therefore difficult to provide an overall view in the Anthology of the phenomena in Switzerland of the specific avenues of influence of American law and legal culture, because they do not deal with the process of Americanization as such. Most of the texts are short and have been published in traditional academic publications of law with only a minority of the texts excerpts from major publications such as monographs. The majority of the authors are Swiss with the texts published in the original language of the authors. The texts by and larger have been published by Swiss publishers, which is a revealing element of the “Swissness” of the attempts to selectively grasp the process of Americanization after World War II. Because of an earlier direct exposure of international lawyers and members of the legal administrations in international legal matters, the trends of the influence of American law and legal culture on Swiss law and legal culture, have generally first come to the attention of practitioners and only later to internationalists in academia. The majority of authors work in the German speaking part of Switzerland. Exceptions are the texts written in the institutional environments of Lausanne and Geneva, which are situated in the French speaking part. Under a concept of legal culture it is necessary and advisable, to turn to the biographies of the authors, which are an integral part of the Anthology. There is a high correlation between internationalist educations and/or international professional activities and authorships in the Anthology. The phenomenon of Americanization therefore can only be grasped, if the user follows the gradual internationalisation after World War II of the legal education and the professional activity of the authors represented in the Anthology. Under the broader aspect of legal culture the same holds true for a necessary inclusion of the institutional environments in Switzerland catering for international legal matters. It has to be noted, that a number of the texts of the Swiss and non-Swiss authors have been in a first phase after World War II either written or translated to in English. In the phase starting about forty years after World War II, more texts have been directly written in English.
In the context of a standalone concept of the various categories of comments of the editor, he advises readers and users to first read the “background” and “summaries” of all non-English texts contained in the Anthology. The reader and user can find a guidance on possible sequences of reading the texts of this Anthology in the Introductary remarks under 3 below.
The reader and user beware and be aware of the Leitmotive – two contrarian perspectives – of the part of the Anthology on Americanization. The Swiss writer Peter Bichsels chose as a title to one of his legendary childrens stories “America does not exist”. Walt Whitman, the American writer of world literature makes reference to the vitality of the United States. Bichsels text has been written in the sixties of the 20th century, Walt Whitmans poem, The Leaves of Gras has been written and constantly revised after the end of the 19th century. It makes a difference.