Alfred KölzNeuere Schweizerische Verfassungsgeschichte

2.6 Alfred Kölz, Neuere Schweizerische Verfassungsgeschichte, Ihre Grundlinien in Bund und Kantone seit 1848, Bern 2004, excerpt: Schweizerische Verfassungsgeschichte als Quelle von Anregungen für die Zukunft Europas?, p. 921-930

[Constitutional History as a Source for Suggestions for the Future of Europe?]

a) Background

The text at hand is an excerpt of the posthumously published second volume of the history of the Swiss constitution, basic principles in the confederation and in the cantons since 1848. The title of the text excerpt is Schweizerische Verfassungsgeschichte als Quelle von Anregungen für die Zukunft Europas? (Swiss Constitutional History as a Source for Suggestions for the Future of Europe?).

The text is to be read in conjunction with the text of Denis de Rougemont (2.4), Heinrich Schneider (2.5) and Peter Häberle (2.7). All deal with the Swiss constitutional experience as possible repository of ideas and the trials and tribulations of European integration as a visionary model or as a creative workshop. The texts of Heinrich Schneider and Peter Häberle are texts of non-Swiss scholars and observers, the texts of Denis de Rougemont as well as Alfred Kölz’s are texts of Swiss thinkers and scholars.

The title and the wording of a source of ideas with a question mark is an indication of the author’s reticence and modesty.

Kölz has an interesting basic working assumption of the Argumentarium: the difference of size between a small nation and Europe does not as such prevent fructification and even a taking over of certain institutions. Kölz uses various samples of cross-fertilization. He draws the attention to the idea that Switzerland is not a constitutional island. It has drawn on French and North American examples of a democracy and continues to develop them. He describes that the organization of the Swiss executive is based upon the French constitution in 1795, as well as on the constitution of the State of Pennsylvania in 1976. Kölz argues that Switzerland has continuously looked at developments and countries and taken over, what it deemed to see fit for its governmental structure. Administrative law, civil and criminal law, as well as the laws of procedure are to a large extent European law, adapted to Swiss traditions and mentalities.

Prof. Alfred Kölz was a Swiss law professor at the University of Zurich. He wrote the seminal work on the history of the Swiss constitution in two volumes with two accompanying source books. He was a well-known teacher, as well as an outspoken political thinker. Together with Prof. Jürg Paul Müller of the University of Bern, he drafted with students  an influential text for a new Swiss constitution. He was well known for his political independence and his opinions on popular rights and on environmental protection.

b) Summary

In the text at hand the main arguments and ideas of Kölz from his historic and comparative background in view of European integration are:

Parliament with two chambers:
A European Union with two chambers is inevitably more democratically legitimate. There is no way around the introduction of two chambers, one representative of the people, the other representative of the member states. Regarding the weight of the votes of the states, the American and the Swiss model allocate equal representation to each member state which is according to Kölz not applicable in the context of the European Union. The unequal sizes would have to be taken into account with respect to voting rights. In both chambers the vote should be free. The core competences of both chambers should be the same. Kölz advises against the introduction of a referendum. With respect to the popular initiative, he argues in favour of a “citizen initiative” in a first phase.
Which executive for Europe?
Kölz argues against the introduction of a parliamentary system, in view of the still existing fragility of the organisation of the executive as a whole. He also argues against the adoption of an American presidential system since such a centralisation of power in the executive is incompatible with small member states. In view of the differences in the member states with respect to language, religion, economy and culture, Kölz favours a collegiate organisation of the executive of Europe.
A semi-parliamentary system without a single head of State:

For Kölz it is conceivable for the European executive to be elected as a five-member executive, which would be chosen by the joint session of the parliamentary chambers. The election would be for two years and would allow the possibility for re-election. The organisation of the European executive would be independent of the parliament. The administration of justice would be entirely separated from these political institutions. He obviously was inspired by the Swiss model which since 1848 composes the executive branch of seven members with a rotating presidency.
Allocation of powers:

The allocation of powers between the member states and the Union are the core of a federal constitution. Besides the shaping of the executive, they are the most difficult to craft. In a future constitution of Europe those competences, according to Kölz, would have to be determined precisely. It is obvious that the principle of subsidiarity would be the guiding principles of the allocation of powers. The issue is that the centralization of the EU has led to a degree of centralization, which would necessitate a retransfer of certain powers to the States.
Basic rights and basic values:

The constitution of the EU according to Kölz should be driven, democratic and social, by the principle of law, by ecological, and multicultural, values leading to cosmopolitan , world-wide solidarity; various, further progresses have to be made such as in the area of human rights and social rights.

Constitutional referendum as democratic foundation of the new Europe:
Kölz argues for a synthesis towards democratic freedom. The political culture of the United States, France and Switzerland could inspire a European constitution, which could be brought to a vote of all European citizens. Just as it was the case in Switzerland over more than 150 years ago, it was a wise decision in 1848 to bring the constitution to a vote by the people. Switzerland followed the American and the French examples. The historic experience moreover has shown that the introduction of a constitutional referendum has an above-average and positive influence on the work of the constitutional convention. According to Kölz, a European constitution could only be entered into force if a majority of the participating citizens voted yes.
No solidification and perfections of the constitution:

According to Kölz, the possibility to change the constitution in force should be made easier as in the American institutions of 1787. In order to avoid an undue solidification, a comprehensive and periodical review of the constitution by a European constitutional convention should be introduced.

c) Text

You can find a scan (PDF) of the original text here:
E_2.6_KOLZ_Schweizerisches Verfassungsgeschichte

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

 

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