Regina Kiener and Raphael Lanz, Amerikanisierung des schweizerischen Rechts – und ihre Grenzen, „Adversarial Legalism“ und schweizerische Rechtsordnung, Zeitschrift für Schweizerisches Recht, Band 119, 2000, I. Halbband, Heft 2, p. 155-174
A_2.36_Kiener Lanz_Amerikanisierung_ZSR_2000
[Americanization of Swiss law – and its limits; “Adversarial Legalism” and Swiss law]
a) Background
The text at hand is a scientific article with the title “Americanization of Swiss law – and its limits – “Adversarial Legalism” and the Swiss legal system”. The text appeared in the Zeitschrift für Schweizerisches Recht in 2000. The text was written following a simultaneous stay of the co-authors at the Berkeley School of Law where they participated in a political science seminar given by the political scientist Robert A. Kagan, the author of the text Adversarial Legalism and American Government.
The text is a further example in this section of the Anthology on the process of Americanization before and after World War II showing the importance of post-World War II graduate studies of Swiss lawyers at leading American law schools, which have produced a series of specific – some of them LLM-thesis – texts, which have thereafter been published. This is a specific cultural interaction in transatlantic and comparative law matters that cannot be underestimated. The text deals with a key structural element of the American legal system as a whole: “Adversarial Legalism”, which is partly technical and partly a metaphoric expression of language.
In light of a missing systematic analysis of the encountered interaction between the two legal systems in the post-World War II era the article, which was published in 2000, has to be situated in the following broader context. Since that time, the influences and the interactions between the two legal systems in various areas have increased considerably. This led to direct and indirect influences on important parts of Swiss law and legal culture. In the meantime for instance important legislation has been passed, such as the Federal Code of Civil Procedure and the Federal Code of Criminal Procedure containing elements that are obviously influenced by American procedural law. With respect to legal cases, a series of real and potential conflicts of jurisdictions in civil and particular in legal assistance matters in the areas of tax law have raised the consciousness of the modern influences of American procedural law on Swiss law and legal culture. We refer to the case studies on the so-called UBS-Case in texts, which arose in connection with the systematically pursued dismantling of the use of Swiss institutions of substantive law, such as the banking secrecy, and Swiss institutions of procedural law, like the international legal assistance in tax matters to avoid paying US taxes.
In the areas of procedural law, “adversarial legalism” in particular has created a lot of attention in connection with the mediaisation of specific aspects of American law and legal culture. There has been a curious spill over effect of American procedural law into literature-novels and plays, as well as into movies, which has been a key part in the mediasation of law and legal culture. This explains the current situation in Switzerland where for example the perception of attorneys is heavily influenced by the descriptions of lawyers in novels, plays and movies.
The text primarily deals with the subtitle “Adversarial Legalism” and the Swiss legal system. The main title “Americanization of Swiss law, and its limits” is more general and highlights a basic concern of Swiss lawyers which leads to a negative or at least defensive attitude concerning the travelling of American concepts of procedural law into the Swiss legal system.
Regina Kiener is a Professor of Public Law at the University of Zurich. She had various teaching positions at the University of Bern, the University of Basel and the University of Freiburg. Beyond the Swiss borders, she attended the US Law Program at the University of California (Davis and Berkeley) and was a research fellow at the University of California at Berkeley in 1998 – this is important in the context with the text at hand –and at the University of British Columbia in Vancouver in 2012. In 2011 Kiener was a visiting professor at the Hebrew University in Jerusalem. Kiener has published widely and has served as an expert for the Swiss Parliament, the Federal Administration, for cantonal and communal parliaments, governments and higher cantonal courts.
The co-author of the text, Raphael Lanz, presently is the Mayor of the City of Thun in Switzerland, a regional centre in the Canton of Bern close to the Bernese Alps. He studied law at the University of Bern and was admitted to the Bar of the Canton of Bern in 1995. From 1998 to 1999 with the support of the Swiss National Science Foundation he studied at the University of California at Berkeley School of Law. Lanz was a research and teaching assistant at the Department of Private Law at the University of Bern and served as a clerk at the Swiss Federal Supreme Court and the Supreme Court of the Canton of Bern from 1999 to 2001. He was the presiding judge of the district court of Thun until he became Mayor of Thun. Lanz in his early academic career regularly wrote in scientific journals and commentaries.
b) Summary
The introduction of the text describes peculiarities of the American legal system, which in connection with the globalization of the economic markets has a tendency to lead to transborder influences and effects of American law on foreign jurisdictions, which have been – see text 3.13 of Wolfgang Wiegand, Die Rezeption des Amerikanischen Rechts – described as “receptions” remarkable and considerable. The text develops elements of an answer to that question in four areas. The introduction of the text describes peculiarities of the American legal system, which in connection with the globalization of the economic markets has a tendency to lead to transborder influences and effects of American law on foreign jurisdictions, which have been – see text of Wolfgang Wiegand 2.34 , Die Rezeption des Amerikanischen Rechts – described as “receptions” remarkable and considerable. The text develops elements of an answer to that question in four areas.
In part II, the text describes and analyses the sources and reasons for the American system of “adversarial legalism”. The text, in part III, raises the issues if there is a tendency for “adversarial legalism” in Switzerland. It particularly deals (1) with the increasing legalisation brought about by the increase of competition, in particular (2) the increase of competition for legal services. The text (3) deals with the legalisation by reason of deficits of trust. The text (4) describes specific impacts of “adversarial legalism” in Swiss legislation. In part IV, the text deals with basic facts that according to the authors limit the influences of “adversarial legalism” in Switzerland due to a series of particularities of the legal and political system. The authors focus on a combination and interplay of various facts that again are mirroring expressions of a certain legal culture. The areas analysed are the limitation of traditional judicial review and the role of the people (1), the role of direct democracy and “Konkordanz” (2), the role of legislation and the enforcement of laws in a federal system (3) and specific influences in procedural law such as the basic principle of procedural fairness and the absence of jury courts to a large extent (4). In (5) the authors deal with cultural factors militating a limitation of the potential influences of “adversarial legalism” of the American structural procedural law concept on Swiss law and legal culture.
The text is an interesting example of the broader American concepts of interdisciplinarity in dealing with legal issues by a particularly political scientific element in a comparative law analysis.