2.9 Daniel Thürer, „Die Bundesverfassung von 1848: Kristallisationspunkt einer Staatsidee; Drei Paradoxe und die Frage ihrer Bedeutung für die Fortentwicklung der Verfassungskonzepti-on im Zeitalter der “Globalisierung“, in: Daniel Thürer, Perspektive Schweiz, übergreifendes Verfassungsdenken als Herausforderung, Zürich 1998, p.15-34
[The Federal Constitution of 1848: Point of crystallization of an idea of government; three paradoxes and the question and its significance for the further development of the conception of constitution in times of “globalization”]
The text at hand is a historical essay on three paradoxes of the birth and creation of the Swiss constitution in 1848 and the relevance of these paradoxes in times of ongoing constitutional changes in a globalized world. The text has been written for a collection of essays from Daniel Thürer with the title Perspektive Schweiz (Perspective Switzerland), arguing for an overarching constitutional thinking as a challenge (1998). The introduction of the book is set under the theme of Karl Llewellyn – see it fresh – see it whole – see it as it works – which Jens Drolshammer has used as a lead theme of his collection of essays as well as for this part of the collection. Daniel Thürer wrote the introduction to the collection of essays during a sabbatical as a visiting research Professor at Stanford Law School. The text is another example of the trials and tribulations of the search of Switzerland’s position and how it situated itself in the concert of nations after World War II. According to Thürer, this necessitates a multidimensional and multilevel analysis, including the important historic dimension, in times of a rather degenerated technocratic approach to law in globalization. The text is another example of a creative attempt to employ a historical perspective on central aspects of Switzerland’s birth as a nation and small state. The findings are not only relevant to Switzerland today but will also prove useful, in the present process of globalization, for other states wrestling with constitutional law.
Daniel Thürer is an Emerite Professor (2010) of International Law, European law and Comparative Constitutional Law at the University of Zurich. He is a leading analyst and commentator on the developments in the legal relationship between EU and Swiss law. In the summer of 2011, he was mandated by the Swiss Federal Counsel to write a legal opinion on the opportunities and limitations of a further coordination and harmonization of Swiss law with EU or in connection with the next and crucial round of negotiations with the EU (see text 2.19).
Contrary to other nations in this world, Switzerland hardly has any visible symbols of national identity such as palaces of ruling classes embodying history or apparatuses of administration forming national unity. It has no persistent and credible myths on the formation of the nation. Daniel Thürer identifies the formation and creation of the constitution in 1848 as a real process standing for the idea of modern Switzerland. This process came to a temporary conclusion after a dynamic process of half a century of constitutional controversies and experiments. The text identifies in this history of constitutional Switzerland three “paradoxes” –Thürer calls them Elliptische Kraftfelder. He deals with (1) the paradox of the “Erlebnis eigener Schöpfung” (experience of ones own creation) and the “Evidenz fremder Einflüsse” (evidence of foreign influences), (2 )the paradox of the “Autorität der staatlichen Institutionen” (“authority of governmental institutions”) and the “Geist der “Civil Society”” (spirit of civil society) and (3) the paradox of the “Kleinen Kreise” (small circles) and “international radiation”. These three “paradoxes” can be made use of in the ongoing discourse on the process of globalization of today in constitutional law. Do these paradoxes require modifications or a new alignment of the theory of government (public law and fundamental thinking?), or are the three “paradoxes” starting points for a continuous constitutional development in times of globalization?
ad 1. “The paradox of the challenges of experience of ones own creation”
The first president of the Federal Council of the newly founded republic of Switzerland described the constitution as “pure and devoid of any foreign influence”. Thürer states a series of sources as well as examples and historical facts, indicating that the Swiss theory of government from its outset has been formed as a result of the tension between “from within” and “from without”. He points out among others to developments in the United States, the French revolution alongside the democratic-cooperative, religious – cultural and enlightenment – philosophical peculiarities of the history of Switzerland. He mentions among others the work of Jean Calvin, Jean-Jacques Rousseau, and Benjamin Constant. Thürer points to the indubitable fact of general interest of this historic process in 1848, which is a combination of a transnational general idea and a local situational creation.
How could those historic processes in Switzerland be relevant to the process of globalization of today?
ad 2. “Paradox of the spirit of civil society”
Thürer highlights the main functions performed by the fundamental institutions under the new constitution. He points to the interesting fact, that the institutional and legal structures, which have given the people a framework of organization and procedure, in turn have been rooted in societal forces and movements, which in modern terminology can be identified as phenomena of “civil society”. In this context, Thürer recalls the famous statements – the precursor of the identical wording used in Abraham Lincoln’s Gettysburg address 3 years later – democracy being the form of government “from the people, by the people and for the people….”. He particularly highlights two peculiarities of Swiss civil society: the opinions and thinking have been formed independently from the community of languages and the particularly close relationship between politics and culture in Switzerland.
ad 3. “The paradox of the small circles”
Thürer argues, that there is no country in Europe that is subdivided in as many small autonomous territorial entities with such a complex federal structure as Switzerland. The life and mentality of the people have been influenced by life and thinking in “small circles”. How could these historical processes in Switzerland be relevant to process of globalization today?
ad 4. “Taking these key ideas global”
Thürer takes these key ideas global. In looking at the current process of globalization, he notes, that this development brings about a constant erosion of all constitutive elements of classic statehood. Globalization as perceived by Thürer raises challenges for legal sciences to redefine general theory of state and law in which the state no longer is to be viewed from an isolated nation state perspective but in the light of a new cosmopolitan hermeneutic principle. As saliently worded in the American declaration of independence, the states need legitimating in front of the “forum of the world”. They have to be globally accepted and have to tie and fit into an overarching whole of the world of today.
The three paradoxes of formation of the Swiss constitution in 1848 may lend themselves to the following conclusions in times of globalization: (1) The paradox of the “autonomy” of creation and “evidence of foreign influences” shows the limitation of “the power of creation” of national thinking. (2) The paradox of “governmental authority” and “spirit of the civil society” shows that legal institutions based upon the principle of law, have come about bottom-up from society and not top down from the keepers of power, and (3) the paradox of “small circles” and “international radiation” show, that a new constitutional way of thinking in globalization leads to and should address the particular challenges of governmental theory in two ways:
(1) To redefine core values of justice and affectivity, which a nation state may not relinquish without losing its resistant inner core as government of law and (2) to find special measures and guidelines according to which the overarching process of integration have to be framed and controlled; that is in that context (participatory component), that forms and doctrines of federalist thinking may be fruitful in thinking about globalization and could give a model character to the original Swiss institutional developments today.