Switzerland: The State of Liberal Democracy

Abstract

Roughly every second referendum held worldwide at the national level takes place in Switzerland. Constitutional law is therefore as least as much shaped by “the People” as it is by courts, parliament, or the executive branch. Courts and administrative agencies are, furthermore, bound to apply both Federal Statutes and international treaties, both enacted by Federal Parliament, even when such provisions conflict with the Federal Constitution. Hence, Swiss Federal Constitutional Law has for all its existence since 1848 been deeply embedded in politics and the Swiss Federal Constitution may be aptly characterised as a “popular constitution” combining elements not only of liberal but also of radical democracy. One would expect that such a “popular constitution” would readily fall prey to the wave of populism that caught some liberal democracies in recent years. Yet, developments in Swiss constitutional law, tracing back to 1848 and beyond, paint a more nuanced and richer picture. They point to the fact that the equilibrium between popular sovereignty and individual liberty demands, within certain limits, constant deliberation and re-balancing. Swiss constitutional law thus attests to the French proverb according to which it is only the temporary arrangements that last (“Il n’y a que le provisoire qui dure.”)

Keywords: Constitutional Law; Comparative Constitutional Law; Constitutional Politics; Constitutional Courts; Supreme Courts; Global Constitutionalism; Switzerland; Liberal Democracy; Radical Democracy; Direct Democracy; Judicial Review; Populism; Popular Constitutionalism; Public Law; I-CONnect

JEL Classification: K19, H11