ETH, STP

PIPP: Hierarchies in the Law

In a national legal system there is usually public law (interaction between governments and citizens, e.g. a university awarding a degree to a student) and private law (interaction between citizens, companies in any combination, e.g. a university buying a computer). Private Law is divided into major families are Substantive Law and Commercial Law, whereas Public Law is divided into Substantive Law and Procedural law (administrative processes).

Substantive Law are descriptive of what is allowed (both in Private and Public Law).

Procedural Law is about how enforcement can be performed.

Another view on law is a hierarchy layered as

  1. Constitution
  2. Statutes (created by parliament)
  3. Regulation (created by administration)
  4. Customary law
  5. Case law (created by courts)

Usually lower layers of laws need to be compliant all layers above. Switzerland has a special case where the federal court cannot constitutionally review federal legislation (i.e. statutes cannot be checked whether they go against the constitution). The statutes of cantons can still be checked for constitutionality. Another caveat that the federal court found is that higher statutes than the federal statutes can be used to review a federal statue against. This is the case for the European Convention on Human Rights which Switzerland has accepted to be statutes above federal statutes. In the case of the “Ausschaffungsinitiative” the federal court could not review the federal statue. But as the constitution is nearly equal to the higher statutes they ruled on it as a ruling in relation to the higher statute of the European Convention on Human Rights.

Conflicts between Laws

Conflicts between laws are resolved with different methods and the three most common are: Lex superior means that a body of higher authority can make a decision contradicting lower bodies. Lex specialis means that for a case the most detailed rules describing the case applies. Lex posterior means that the newest laws applies to a case.

International Law

A legal action within a sovereign has an negative impact on another sovereign, the question arises how to handle the situation. Most courts are restricted to their sovereign and therefore cannot rule. In the first such case between Canada and the US about a smelter in Canada polluting the US they created an ad hoc court whose ruling would be legally binding. However, the court was only allowed to judge this single case.

Generally, international laws are based on agreements between sovereign countries. Enforcement therefore relies on being part of agreement. Consequently, there is no separation of powers, no central institution to create/enforce laws, no court has a mandatory jurisdiction and most decisions must be unanimous. The EU is a special case where the executive creates laws (in contrast to the division of power) as it is a product of international law.

In Europe four bodies govern most of internation law: The European Union (EU), the European Free Trade Association (EFTA), the European Economic Area (EEA) and the European Convention on Human Rights (ECHR). Switzerland is member of EFTA and ECHR. Switzerland is also the only member of EFTA that is not in the EEA.

The EU can be seen as a federation of 28 European countries. The EFTA is a free trade agreements with no customs union. The EEA is an extension of the EU internal market. The ECHR is a treaty on human rights.

Smaller nations often use larger nations law as reference for their laws. On the one hand for compliance reasons, but also as larger nations have more legal experience (i.e. more cases to decide) and can therefore have a precedence.

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