The legal system of Switzerland is inherited from the Romano-Germanic tradition. Highly influenced by the Germanic codes in its early days, the Helvetic Confederation was equally marked by France. More precisely, the country received the codified law with the Napoleonic invasion at the beginning of the nineteenth century . Unlike the US, Switzerland is definitely a civil law country. Despite the fundamental difference relating to their legal tradition, USA and Switzerland are both true federal states. This implies that their judicial organization is, under many aspects, extremely similar. However, the legal system of these two countries varies on critical points or notions, which appeared to me confusing or rather difficult to conceive. In pointing to these differences, I will first focus on (1.) the peculiarities of the federal organization of my country then on (2.) the judiciary branch in Switzerland, and especially on the role and the power of the Swiss Supreme Court. Finally, I will conclude with a few words about (3.) the civil procedure and jurisdiction issues.
Switzerland is composed by twenty-six states, called “Cantons”. Historically, most of these Cantons were mini-states, supreme in matters of legal internal administration. On 12th September 1848 a liberal constitution – largely modeled on that of the US - came into force (hereinafter the “federal Constitution”), replacing the collection of bilateral treaties and agreements that had bound the Cantons together up to then. According to the federal Constitution, the political structure of Switzerland is split into three different levels: the Confederation, the Cantons and the local authorities. Like the US federal government, the Swiss federal government, called the Confederation, only has authority in those areas in which it is empowered by the Constitution . All the other tasks are dealt with by the Cantons. In some areas, the Confederation and the Cantons share certain responsibilities. The governmental bodies established by the federal Constitution consist of a bicameral legislature (namely the federal Assembly which was created along the lines of the American Congress), an executive power (the federal Council) and a judicial power. These three branches exercise their authority and interacted among them through a system of check and balances . In that respect, it can be easily claimed that the US and the Swiss constitutions are very alike. On the other hand, the structure of the federal Constitution is very different from its American model. While the US Constitution is a short and thick text, which encompasses in few articles, many general principles, the federal Constitution lists, in a very detailed way among numerous provisions, many definitions and all the protected fundamentals rights (Art. 7 to 36). Among these latter, the right to privacy, the right to marry and the freedom to assembly are expressly mentioned. Therefore, it might be difficult for the Swiss practitioner to conceive that such fundamental rights may arise only from an extensive interpretation of general clauses such as the US Due Process and Equal Protection clauses and to rely on the precedent cases to find the roots of these rights. The same applies to the delimitation between the powers of the federal government and those of the states: it wouldn’t be conceivable to grant the Confederation powers others than those expressly mentioned in the federal Constitution. To the extent that the vast majority of the articles of the federal Constitution deal with this matter (Art. 42 to 135). To my knowledge, the Confederation has never been recognized any new competence without a due amendment of the text of the federal Constitution. As a result, the adding of new competences upon the Confederation based on an extensive interpretation of general constitution clauses, such as the interstate commerce clause for the US Constitution, is not applicable to the Swiss legal system and,...
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