Peter Saladin

2.41    Peter Saladin, 1. Kapitel: Die Religionsfreiheit, excerpt, in Grundrechte im Wandel, Die Rechtsprechung des Bundesgerichts in einer sich wandelnden Welt, Bern, 3. Auf. 1982, p. 2-21

a) Background

The text at hand is the first chapter of leading treatise on fundamental rights in Switzerland, first published in 1970. Peter Saladin, who was later a Professor at the University of Bern and died much too early in 1997, wrote the text during post graduate studies in comparative law at the University of Michigan Law School. It is not a coincidence that the book begins with a chapter on freedom of religion. First, it was dear to Saladin and his personal faith. Secondly, freedom of religion both has been a constituting freedom in the United States and in Switzerland, albeit shaped by a very different history. While freedom of religion has been a mainstay in US constitutional law restricting state intervention, it was subject to stronger governmental involvement in Switzerland in the wake of the reformation, state religion and the expulsion of Christian minorities. The chapter expounds the history of religious freedom in Switzerland, showing that it was largely subject to governmental control and limited by law. Art. 44 of the Swiss Constitution of 1848 introduced a formal guarantee of freedom of religion. Yet, subsequent case law continued to be coined by the tradition of faith defined by public authorities (Staatskirchentum), allowing for substantial restrictions of freedom of religion. It is at this point that Saladin refers to the case law of the United States Supreme Court, arguing in favour of the compelling interest test and thus stricter requirements to be met for governmental restrictions of freedom of religion in Switzerland. The chapters stands as an example of a then increasing influence of the case law of the United States Supreme Court to which Swiss authors would look for guidance in shaping the body and system of fundamental rights protection in Switzerland at the time. It should be recalled that prior to World War II, human rights protection was less prominent, and gained prominence and profile during the 1970s and 1980s when the Swiss Federal Court recognised implied protection of human rights under constitutional law. Saladin was instrumental in bringing about enhanced protection, together with the writings of his Berne colleague Jörg Paul Müller. They pioneered what eventually became the catalogue of fundamental rights in the Federal Constitution of 1999. The influence of US constitutional law was strong in this and the subsequent generation of leading lawyers, many of whom had been exposed to US constitutional law during their studies in leading US Universities. Walter Haller dedicated a full monograph to United States constitutional law, explain the functioning of it to European readers. US constitutional doctrine and teaching also influenced methods of teaching. It is in the field of fundamental rights that in that period, teaching by way of case law became prominent, narrowing the gap between the traditions of civil and common law.
Peter Saladin was educated at the University of Basel a predominately protestant city. Upon return from the Unite States, he held governmental positions before taking up a professorship in Basel and eventually becoming a Professor of Public Law at the University of Berne. His main focus, besides constitutional law, were principles of administrative law and federate structures. He was among the first to address ecological concerns and the impact of globalization publishing a provocative book discussing the allegedly increasing redundancy of states (Warum noch Staaten?  in defence of the nation state.

b) Summary

The text at hand is a chronological analysis of the cases of the Swiss Federal Tribunal as regards to freedom or revision. The analysis is a part of an overall and bottom up analysis of the evolution of constitutional fundamental rights in post World War II times, it is strongly inspired by conceptual cases of supreme court of the United States.

c) Text

You can find a scan (PDF) of the original text here:
A_2.41_SALADIN_Religionsfreiheit

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

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