Texts

The cultural exchanges and encounters between the legal culture of the United States and of Switzerland are distinctively different in times from the American revolution and the formation of the United States up until World War II and in the time thereafter. 33 texts cover the time period before and 21 the time period after World War II.

The trend to Americanization continues to be of great importance to Swiss law and legal culture, in particular with the advent of the new world order after World War II. While up until World War II, examples can be found of Swiss law and legal culture having an outbound influence on American law and legal culture, the “travels” and “impacts” of the international legal process after World War II mainly became a phenomenon of inbound influences. Switzerland, a small and neutral country, was under the graving influences of the driving forces shaping the post-World War II landscape which also resulted in a new legal world order. Switzerland had a historically above average international economy leading to an above average interdependence with the world with the United States becoming the main actor. Despite its neutrality Switzerland was part of the western world during the cold war and thereafter. The rise of the United States, from victorious at the conclusion of the cold war to then a position of almost hegemonic power, resulted in conflicts between Swiss and American law and legal culture. This led to a gradual deterioration of the historically close relationship between the United States and Switzerland after World War II even in legal matters.

Unlike the process of Europeanization, the direct and indirect influences of American law and legal culture on Swiss law and legal culture was not the result of a political decision of entertaining structured legal and political relationships. The American influence was therefore less transparent, less structured, at times patchy and even aggressive, but it was assertive and always an essential dimension of a general westernisation of many aspects of political and legal culture in the post-World War II period.

The reaction of Swiss law and legal culture to the challenges of their American counterparts has not been systematically analysed in Switzerland with there being astonishingly little systematic and theoretical writing on the phenomenon. Under the weight of political, societal, economic and legal reality this has gradually and slowly started to change in the past twenty years. This anthology looks to help to increase the knowledge of the process of Americanization of Swiss hegal culture and to draw a map and framework to better situate the texts assembled.

At the outset the editor gives some guidance to the reader and user to possible sequences of approaches to the texts in 2. of the Anthology.

If the reader and user wants to have an insight in the cultural exchanges and encounters between Switzerland and the United States in the early times from an American perspective he may turn to James Hutsons chapters in the short book The Sister Republics, Switzerland and the United States from 1776 to the present. We have divided the book in a chronological sequence in texts 2.1, 2.5, 2.12, 2.16 and 2.28. James Hutson was the historian in charge to write this book, accompanying the exhibition of the Library of Congress. The exhibition under that title was a present to the 700th birthday of Switzerland in 1991.

If the reader or user interested in the historic dimension of the longstanding and special relationship between the United States and Switzerland in legal matters wants to grasp some outbound influences of Swiss law and legal culture in the early period up to the time before World War II from a Swiss perspective, he may first to turn to Paul Widmer’s text, which shows the relevance and potential impacts of Swiss law and legal culture on American law at the time of the formation of the American constitution. Alexis de Tocqueville’s texts show that the Swiss governmental institutions were regularly taken into account in comparative constitutional analysis. The short passages of the Federalist and Antifederalist papers give an insight into the remarkable knowledge of the Swiss governmental system of the founding fathers. The history of the impact of American legal thinking on the formation of the Swiss constitution in 1848 is described in William Rappard text. Karl Deutsch’s text gives an insight in the paradigmatic role of the political integration in Switzerland from a political science perspective.

The early part of the legal relationships is also covered by several texts in the form of case studies on Swiss emigrées. The text 2.8-2.15 refer to court cases, personal memoirs and literary texts on the life of Johann August Sutter. Text 2.14 and 2.15 deal with the death penalty of Henry Wirz, who was tried by a military commission after the Civil War for his deeds as the head of a prisoners camp of the Confederats. The texts 2.21, 2.22 and 2.23 describe the personal and scientific position of Louis Agassiz, who after his arrival to the United States beyond his theories of paleonthology and geography wrote a theory of races. The texts 2.32 and 2.33 deal with Emilie Kempin-Spyri, the first woman lawyer in Switzerland and Continental Europe. She early on was teaching and writing on American law and founded a college of law for women in New York City.

After the Civil War, the text 2.17 of William Rappard and the text 2.18 of James Hutson deal with the direct influence of Swiss constitutional law concepts on the revisions of constitutions of western States of the United States. The text 2.16 of James Hutson and 2.19 of Heinz K. Meier deal with the ascending role of Geneva in international matters by addressing the arbitration of the Alabama Affair and the historic choice of Geneva as the seat of the League of Nations. The text 2.20 of Raymond R. Probst sheds light on specific examples of activities of “Good offices”, which became an important part of Swiss foreign policy in particular in the Swiss-US relationship.

The trends to Americanization in the post World War II decades were of great importance in Swiss law and Swiss legal culture. There is little systematic and theoretical writing on this phenomenon. It probably is “an elephant too big to chew”.

The reader or user interested in the role and the tendencies for Americanization of the Swiss legal system, the Swiss legal professions and the Swiss legal education in general may turn to the contributions by Jens Drolshammer. If the reader is interested in sociological evidence of the effect of American legal culture on Swiss legal culture. The reader may continue with the text by Wolfgang Wiegand (2.34), who qualifies the process of Americanization as a “reception” to be compared to the “reception” of the jus commune in the Middle Ages.

If a reader or user is interested in the influences of American constitutional law on the emergence of a coherent concept of fundamental rights in the case law of the Swiss Federal Tribunal he may turn to the text of Peter Saladin (2.41). If one is interested in obtaining sectorial and specific topic-oriented insights, he may turn to the texts of Peter Böckli on business law (2.37); the text of Heinz Aernisegger on the influence of American Law and legal culture on Swiss courts; Peter Nobel on the influences on legal scholarships (2.40) and Jens Drolshammer, on the influences on legal professions (2.35): most are emerite law professors and have been both academics and practitioners on the international arena.

Heinrich Koller’s text (2.38) analyses the influence of Americanization on the Swiss legislative process and law in general from the perspective of the Director of the Federal Office of Justice while Regula Kiener and Raphael Lanz describe general limitations in Swiss law and legal culture in receiving elements of the American “Adversarial Legalism” (2.36).

If the reader or user desires an insight into the Holocaust debates under the heading “neutrality” and “morality” he may turn to the selection of texts dealing with the burning issue of the attempt to redress on behalf of Jewish victims the calamities of World War II, fifty years after the end of the war:  Dietrich Schindler on neutrality and morality; Detlev Vagts on the assessment of Switzerland’s behaviour during World War II under the laws governing neutrals; the special envoy Stuart Eizenstat in a strong and pointed forword to the Eizenstat Report I mainly targeting Switzerland; Detlev Vagts, Jens Drolshammer and Peter Murray on a Colloqium and a public panel at the height of the time of Swiss criticism engaging in a constructive dialogue among prominent law professors at Harvard Law school and Thomas Maissen, in a retrospect assessment of the trials and tribulations of attaining a global settlement of cases brought before American courts on the issue of dormant accounts against two Swiss big banks.

If the reader or user wants another and a more in-depth insight as to how an assertive and aggressive use of American law extraterritorially led to serious conflicts of jurisdictions in a narrower sense, the reader may turn to the texts dealing with the recent UBS case (2009 and 2010) at different stages and from different perspectives as a case study: the Amicus Brief of Government of Switzerland in the John Doe Summons case in a Federal District Court in Florida; the opinion written by professors Thomas Cottier and René Matteotti, for the Swiss government on the principles and the domestic applicability of the Treaty Request Agreement between the Swiss Confederation and the United States of America of August 19, 2009; a text by Xavier Oberson on a series of Swiss court cases in the “affaire UBS” in matters of international taxation and an ex-post analysis by Thomas Cottier of the function of principle of legality in the domestic transformation and application of said treaty with the United States.

Nedim Vogt and Jens Drolshammer’s text finally is an extended essay regarding the function of English as a new legal lingua franca in Swiss Legal Culture); the English language being the most powerful network and instrument of transporting legal contents and influences of Americanization and globalization into the legal world. Since the perception of others (Fremdsicht) and self-perception (Selbstsicht) has become an important factor in the communication of legal matters one may enjoy the self-restrained and general overview of the effects of American law on legal culture outside of the United States in the text by Arthur van Mehren and Peter Murray.

The influences of Europeanization and Americanization of Swiss law and legal culture are at the same time – depending on the issues and the area of law – parallel and at times curiously intertwined and indirect. Without giving relative weight to those influences the editors advise the reader and the user to first consult the part of the anthology on Europeanization and then turn to the part on Americanization – always keeping in mind that both processes are influences on Swiss law and legal culture after World War II of major and simultaneous and co-equal importance.

 

© Prof. Jens Drolshammer, office@drolshammer.com,  www.drolshammer.net