Texts

Texts

The purpose of the Anthology in this part is to show Switzerland’s own history of dealing with Europe at large. Switzerland is a home and a host of European-Federative thinking during and after World War II leading to discussions and conferences on Swiss soil on the fate of Europe. Several public personalities from academia and publicists intensely dealt with the issue such as the lawyers Rudolf Bindschedler, Max Huber, Dietrich Schindler and Hans Wehberg, the historians like Edgar Bonjour, Adolf Gasser and Jean Rodolphe von Salis, the philosophers Jeanne Herrsch and Gonzague de Reynold and the publicists Hans Barth, Hans Bauer, Peter Dürrenmatt and Herbert Lüthy. Various non-Swiss personalities had chosen Switzerland as their domicile or had their work place here, people, such as Richard Nikolaus, Graf Coudenhove Kalergi, Johann Jakob Kindt-Kiefer, Willem Visser’t Hooft and Don Salvador de Madariaga. Various organizations and national factions of the Europe Union and their relationship to Switzerland are well described in Erich Schneider’s text.

Contrary to the developments of globalization at large – and to a large extent of Americanization – after World War II, the influence of the dynamic legal developments of the EU on Swiss law and legal culture is based upon a mutual design and a political intent. Coping with the challenges of the European Union presently is the first priority of Swiss foreign policy. It is the purpose of the Anthology not to lose sight of the fact that the myopic focussing on the relationship of Switzerland and the EU should not exclude the important facts of its historic relationship to Europe.

If the reader and user wishes  to follow this historic development and the broad activities before and after World War II and if he wants to note the specific form of Swiss government, its origins, and the ideas on using those forms as contributions to and even models of European integration, the reader and user may follow the chronological order in texts 2.1 to 2.4. The Hertenstein Programm (2.2) is a chart of the Union Européenne des Federalistes pronounced on Swiss soil in 1946. Denis de Rougement is a visionary author on Swiss federalism as possible model for unified Europe. Winston Churchills famous speech of September 1946 pronounced on Swiss soil ends with the sentence “Let Europe crise” (2.3). The personal recount of the life of Henri Rieben recalls the life of another Swiss European, who among others cooperated with Jean Monnet (text 2.5) Alfred Kölz, the eminent historian of Swiss constitutionalism in text 2.6 makes precise and far-reaching proposals on the potentials of the use of specific aspects of the Swiss constitution for a future constitution of a unified Europe.

If the reader or user wants to follow the evolution of the influence of the developments and effects of EU law on Swiss law and Swiss legal culture after World War II, it is suggested that he follows the chronology of the texts as well. Political scientists in Switzerland, took the lead in describing stages and the history of Swiss European Policy. Dieter Freiburghaus text 2.14 is a recapitulation of 60 years of European policy, the text 2.10 is a specific description of the preparatory works of Switzerland for an accession in the sixties. René Schwoks text 2.13 squarely addresses the key issues of European policy of a full membership of Switzerland in the European Union. The historian Pierre Du Bois in 2.11 describes the European Economic Community in the sixties and aspects of Free Trade in Europe in the time from 1940 – 1960.

Regarding the legal, philosophical and jurisprudential bases of the evolution of the principle of Euro-compatibility the reader should turn to the texts of Daniel Thürer in 2.15, 2.16 and 2.17. Carl Baudenbacher in 2.18 adresses the effects of European Integration on Switzerland and Swiss law in Swiss economic law. Thomas Cottier and Rachel Liechti in text 2.20 situate the principle of Euro-compatibility in general comparative law from a broader perspective and summarize three case studies on issues of the application of the Cassis de Djion principle, turnover tax and antitrust law. Regarding the specific task in 1994 of the courts, after the first pertinent decision of the Swiss Federal Tribunal in the area of private law, see Thomas Probst (2.24). A general overview of the overall state of the present influence EU-law on Swiss law is the comprehensive text of Matthias Oesch in 2010 (2.19). The most recent developments in Switzerland’s positioning itself vis-à-vis the European Union in legal matters concerning the European Unions demand for a solution of certain institutional issues as a precondition for further negotiating, see Carl Baudenbachers text 2.27. In the opinion letter of the Swiss Federal Tribunal (2.29) and the Opinion for the Swiss Government of Daniel Thürer (3.28) on the Swiss government’s options on institutional forms of the domestic transformation and the application of bilateral treaties between Switzerland and the EU are described. The official position of the Swiss Government at various steps of the processes of Europeanization is contained in excerpts of official reports (2.12).

Switzerland is a country in the heart of the European continent and is fully part of historic, political, societal, economic and scientific developments of Europe at large. At various times, Swiss law and Swiss legal culture had radiations, influences and inspirational functions on the legal developments within Europe, even within the European Union. If the reader is interested in the perception of outside scholars of the possible contributions from a legal perspective, he may turn to text of Peter Häberle (2.7), an eminent scholar in comparative constitutional law and culture. If he is interested from a broader political science perspective, dealing with the intensive interaction between Swiss legal culture and Swiss law and European development, the reader may turn to text (2.5), of Heinrich Schneider. A Swiss perspective on a specific contribution to European developments in contract law is being reasoned in the text of Franz Werro (2.25). Thomas Cottiers text in english in 2.21 Swiss Model of European Integration at least gives a general description of Switzerlands position vis-à-vis the European Union from an eagle’s perspective,  thereby greatly facilitating communication with lawyers and of course users and readers.

A change of perspective to other social sciences and the humanities opens the broader view on the process of Europeanization on Swiss legal culture and Swiss culture in general. Fritz Ernst (2.30) contributes a perspective of comparative literature by highlighting the radiation of Swiss authors and institutions into Europe at large. Karl Schmid (2.31) warns Switzerland not to fail to address the structural changes of the rising new world order. In a profound essay written in 1969. Historian Herbert Lüthy describes the sources and origins of Switzerland as a nation and squarely addresses the potential of a collision of Swiss history with the advent of the European Union at a very early stage of the relationship of Switzerland and the European Union (2.32). Adolf Muschg in a public lecture series held in Germany with the title What is European? answers the question by pointing at and exploring Switzerlands dowry to Europe, he brings a perceptive answer to the question upon by identifying Switzerland, in particular by the poet Gottfried Keller. In a seminal essay on Switzerland’s simultaneous looking forward and looking backward, Peter von Matt  (2.34) grasps the soul of this nation, creating difficult and dangerous trials and tribulations in view of the ever growing European integration in the European Union. Wolf Linder writes on the state of the republic from a political scientist’s perspective (2.35) Finally, Bruno Frey offers ideas from a political economy perspective and a misguided development of European integration, if the nation state should stay the entity of reference for designing the next stages of European integration (2.36).

Since the phenomenon of Europeanization and globalization as well as Americanization are not identical, the reader should consult the texts in the parts on Americanization as well as on globalization, which contain elements of a discourse on various aspects of Swiss legal culture dealing with these overlapping and sometimes conflicting phenomena of the internationalization of Swiss law and legal culture. 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 key 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 of Americanization – always keeping in mind that both processes are influences on Swiss law and legal culture after World War II of a major and simultaneous and co-equal importance.

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