Johann Jakob RüttimannDas nordamerikanische Bundesstaatsrecht

2.31 Johann Jakob Rüttimann, Vorrede, excerpt, in Das nordamerikanische Bundesstaatsrecht verglichen mit den politischen Einrichtungen der Schweiz, Zurich, 1867, p. IV – VIII
 
[Words of introduction to a monograph comparing the north American and Swiss constitutional law]

a) Background

The part of the Anthology on Americanization of Swiss law and legal culture of the Anthology tries to grasp evidences of cultural encounters and exchanges between Switzerland and the United States, with the particular focus on legal culture. The Anthology largely is text based. Individuals as shapers and legal institutional environments as breeding grounds for the legal realities are complementing the texts. At times the political circumstances and personal situation and education maybe present in the same person and in the same institutional legal environment. Johann Jakob Rüttimann is such a representative of the time, which Gordon Craig described in the Triumph of Liberalism, Zurich in the Golden Age, 1830 – 1869. We look at his life through the lense of the leading biography of Alfred Escher (see Joseph Jung, Alfred Escher, 1819 – 1882, Der Aufbruch zur modernen Schweiz, Zürich 2006),  the major shaker and maker of the political, institutional, educational and economic realities of the time, Johann Jakob Rüttimann was one of Eschers longstanding and closest friends. Both were lawyers, both were marked by the law professor Friedrich Ludwig Keller. Where Rüttimann had a priority in life on his scientific career, Escher left academia in favour of a political career. Rüttimann reached the highest legal, political and economic offices and positions: From Privatdozent (1844-1854) to professor of Zurich civil law and Swiss constitutional law at the University (1854-1872), professor for public and simultaneously for administrative law at the Swiss Institute of Technology (1874-1876). From 1884 until 1954 he was a member of the new Swiss Federal Tribunal. At the same time as Alfred Escher, Rüttimann became a member of the Grosse Rat of the Canton of Zurich (1844-1862). He was elected to the executive of the Canton of Zurich at the same time as Escher and stayed there until 1956. Rüttimann represented the Canton of Zurich as a Senator (1848-1854 and 1862-1869). On the level of the Confederation he was elected twice the president of the Senate (1850-1851) and (1865-1866). He made decisive contributions to the formulation of the Federal Constitution in 1848. Contrary to Escher, he argued for a bicameral system with a moderate senate to reconcile the loosers of the Sonderbundskrieg. Escher considered Rüttimann to be a legal genius and a legal conscience for his economic endevors and involved him in leading position in the Nordostbahn, the foundation of Credit Suisse, the Rentenanstalt and the Federal Institute of Technology.  Rüttimann acted for Escher as the legal conscience of those institutions and as the deciding authority on all legal and political issues. Rüttimann in 1846 was made a colonel in the army, an area unfamiliar to Escher.

Rüttimann was the author of many legal publications with an unusual focus on anglo-american  topics, which span from English civil procedure to questions of organization of government and comparative analysis of the Swiss and the North-American Confederation. He was the draftsman of important legislations on the level of the Canton and on the Federal level. Rüttimanns life is underresearched. According to biographies though, Rüttimann was on one hand knowledgeable about legal matters – about English as well American legal matters – and on the other hand put them to work in his political functions. In a sabbatical he analysed the British Court system and wrote a publication “Der englische Civilprocess mit besonderer Berücksichtigung des Verfahrens der Westminster Rechtshöfe”. (The English Civil Procedure with special reference to the procedure of the Westminster courts) which later was the theoretical basis for the introduction of the jurysystem in various parts of law on the Cantonal as well as on the Federal level. His journalistic and academic activities marked the formation of the constitution of 1848 bringing forward strong arguments in favour of the American bicameral system. He gave a public presentation “Zur Geschichte und Fortbildung Zürichs” (the history and the development of the court system of the canton of Zurich, comparing that history with English history). He wrote a text “Über die Schweizerische Eidgenossenschaft und Neutralisierung des Bundesrechts zu Gebote stehende Organe und Zwangsmittel”. (The organs and elements of force available for the realisation of Federal law), which contained many comparisons with the American constitution. In 1871 he wrote an article honoring the German professor Mohl with the title “Kirche und Staat in Nordamerika” (church and the state in northern America). His main academic work was a treatise published in three parts with the title “Das Bundesstaatsrecht, verglichen mit den politischen Einrichtungen der Schweiz” (constitutional law of north America compared to political institutions of Switzerland, published in 1857, 1867,1872 and 1876.

The editor notes, that Johann August Rüttimann in general and his early scientific analysis of aspects of Anglo-american law is hardly known in Switzerland and is not part of common knowledge – with the exception of William Rappard, who in text 2.27 specifically cites part of the text at hand and gives Johann Jakob Rüttimann his due place in the legal relationship between Switzerland and the United States.

b) Summary

The text at hand is the Vorrede (Words of Introduction) to the three volume comparison of constitutional law of North America and Switzerland. According to a biographer, Johann Jakob Rüttimann began with this treatise in the 1860ies. He was assiduously working with American and English sources and, according to the bibliography, with American,English and French literature. Rüttimann did not travel to the United States and did not meet American politicians as well as American constitutional lawyers. He did it all by himself from his working desk at the University of Zurich.

The short document is a text evidencing great modesty about his own work and his great respect and admirationfor the American nation and its legal institutions. Rüttimann views the North American Nation with a destiny to play a major role in the world, after the “threatening cancer of slavery” had been operated on and to large extent overcome in the Civil War. He hopes, that the “dark spots” in the Union and some parts of it would be overcome. Why should not the government by the people prevail in the Union just as it did in New England? He hails the solution of the mending of a great number of people of various background, thereby mainting opportunities and peculiarities of its parts to a large extent.

Rüttimann views North America as a laboratory for future developments in the world of law. “Wenn die Menschen perfektibel und fähig sind, so wird auch in Europa früher oder später die Einischt, dass die Völker sich zueinander verhalten wie die Glieder eines Leibes, aus Solidarität der Interessen zwischen Ihnen bestehen; dass jede Wunde, welche einem unter Ihnen geschlagen wird, auch alle anderen trifft; dass jeder Streit zwischen einer friedlichen Ausgleichung fähig ist, dann werden sie sich zu einem Bundesstaat einigen und es wird im Völkerrecht in den gleichen Teilen, in welchen wir jetzt das “mittelalterliche Fehderecht erblicken“. This view of a potential relevance and application of the historic process and analogizing the federalisation of North America as well as Switzerland in international relations reminds us of Rüttimann’s teacher, Johann Caspar Bluntschli’s text on The Organization of the European Association”, which was published in 1878 (see text 2.1). Rüttimanns words of introduction encourages a positive attitude towards American institutions. The comparison of North American and Swiss Constitutional law, shows a profound knowledge of respect for the subject treated and displays an unsusual cosmopolitan mindset.

The editor thanks Professor of Law Dr. Riccardo Jagmetti, emerite of the Swiss Institute of Technology for having identified Johann Jakob Rüttimann to him. Professor Jagmetti as a professor in the chair at the Swiss Institute of Technology and as a member of the Ständerat (senate) representing the Canton of Zürich is a late successor of Johann Jakob Rüttimann.

c) Text

You can find a scan (PDF) of the original text here:
A_2.31_RÜTTIMANN_Vorrede

 

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

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