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.

IMHIO: Turkey should enter the E.U. asap

English: Preface: In My Humble and Idiotic Opinion sounds degrading, but is thought to lose some tension that might arise discussing political agendas. Too often one gets lost in endless discussions and nobody wants to take the step back. That is why I like to remind people with that title that it is only one person’s opinion with no claim of general acknowledgement. So here comes my little essay contributing to the topic:

A few days ago nearly all military chiefs of Turkey resigned at once. Whether that is a good or a bad thing is not what I want to discuss with you today. I want to talk about another level of politics. The Entry of Turkey into the European Union. Wait, what is the connection between the both? Well, while the role of the Turkish military always was a disputed one, they kept Turkey on a democratic track (in the definition of Ataturk) and hindered it from turning too far from it. There is no point denying they had over-proportional power, but they were a balance to religious movements that tried to bring Turkey into a different direction. Since the Cold War they got slowly dismantled until today nearly nothing of their once so great power is left, hopefully for the better. In general this truly is a victory for democracy, but is it also in the case of Turkey? We don’t know yet and I don’t claim to have an answer. I just have a feeling. While military action against unwanted tendencies is an easy and effective tool, it doesn’t seem to be appropriate to me anymore, there are more viable options. I think of the European Union as a great example of what can be achieved with an inclusive and peaceful approach to the matter.

Turkey is on a crossroad. The recent arresting of military officers, openly the government criticizing  journalists and opposition members are to me clear signs of Turkey moving to a more totalitarian state. This can be stopped, but in order to do so the Turkish People and Government need perspectives and entering the European Union soon could be one possible perspective. Europe’s dissonant voice up until now has impeded this from happening at all. There is no consensus about whether we Europeans want a Muslim country amongst us. The arguments should be well known to you, but I have a question: Is it really that we have a choice or that we should allow us one?

Turkey is a regional power and while being interested in the European Union, it is surely not the only option Turkey is pursuing. They play an active role in cooperating in the Arab League and they want to play a stronger one.  They interact quite strongly with Russia –  if not always to their own advantage. If we neglect Turkey for much longer they could lose their interest in joining us (if they not already have up to a certain degree). If they achieve a strong position amongst the Arab Countries they simply might no longer be in need for really coming closer to us – just like Russia is in no need to enter the European Union.  These might be just my illusion but on the other hand I think Turkey as a part of the European Union would have a lot to offer.

Over the last years I was in the lucky position to get to know quite a lot of Turks from several parts of the Country. What astonished me most was their openness and their interest in Europe – and we don’t know how long that might last and what would come after it is vanished. The Turks are a proud and strong people and they have all the reason to be so. So when it comes down to the people, the project of Europe is an incredible chance that should be reserved not only to a small group of “truly European” people (whose definition always stroked me somewhat bizarre), but should be open to the cultural variety that lives within Europe. And Muslim Culture has been irrefutable a part of Europe too. Truly not in the whole of Europe but in certain areas for sure. Here I want to mention some historical annotations that I find helpful to grasp the whole range of Turkey’s entanglement with Modern Europe. Byzantium was situated in the modern Turkey and with its strong ties to European History, but even before that many of the Greek Myths are situated in what nowadays is known as Turkey. The Ottomans came till Hungary and influenced South-Eastern-European Cultures in different degrees, while at the other southern end of Europe the Moors settled for half a millennium and brought in cultural heritage to Spain and Portugal. Turkey might have always been in the close periphery of Europe, but in my opinion this makes it a part of it, too.

Through immigration Muslims have become a part of every-days life in Europe. In some regions to a higher degree then in others. It might have been, that most of the Europe of the past has been a Christian one, but the Modern Europe it more than that. Our societies become more multicultural  and with hard work maybe even intercultural. In this context I believe that holding against Turkey it wasn’t Christian – as an excuse not to admit them – sort of misses a point.

Further Turkey being a Country of strong Muslim Culture can enhance Europe’s position towards it’s mainly Muslim neighbors and give a credible government-partner for Muslims living in Europe to turn to. Trying to deny that multiculturalism brings along many new traditions and religious practices (from the natives perspective) is not only foolish, but also dangerous. Ignorance had been a blessing of the past, we simply could ignore others because they were too far away to care anyway. But this is no longer true and holding up that ignorance makes it impossible to tackle underlying causes of our problems.

But my biggest concern would be that Turkey turns her back on us and stomps off in a direction that might be even more dangerous for Europe than the situation now. We have the tools in our hands to impede that from happening by facilitating the Entry of Turkey into the European Union. I believe that we only can gain something out of this, but have nothing to loose while trying.

Epilogue: This has gotten longer than planned, but I tried to bring my points across. This is far from being the only position towards the topic and many people claim I am too optimistic about things. What is your opinion on the topic, on my argumentation? I welcome comments under the article, please consider that I read comments first before I let them go public.

Deutsch:Vorwort: In My Humble and Idiotic Opinion (dt.: Nach meiner bescheidenen und idiotischen Meinung) klingt zwar herablassend, aber es ist dazu gedacht etwas von der Spannung aus einer Diskussion um politische Themen zu nehmen. Zu oft verliert man sich in endlosen und wiederkehrenden Diskussionen und keiner will von seiner Position ablassen. Darum will ich mit dem Titel alle daran erinnern, dass dies nur die Meinung einer einzelnen Person ist und ich keine Ansprüche auf allgemeine Gültigkeit hege.

Ich hätte gerne noch eine deutsche Version des Essays vorgelegt, aber da ich gerade für die Universitätsexamen lerne, bleibt mir keine Zeit zum Übersetzen. Vielleicht reiche ich eine deutsche Version noch nach. So weit ihr des Englischen mächtig seid, würde ich mich über eine rege Teilnahme an einer Diskussion freuen. Die Beiträge werden vorher gegengelesen, es kann etwas Zeit vergehen, bis sie freigeschaltet werden.

Español:Prefacio: In my Humble and Idiotic Opinion (es.: En mi opinión humilde y idiota) suena bastante condescendiente, pero la estoy usando para laxar la tensión inminente que aplica a cada discusión de un tema político. Demasiadas veces uno se pierde en discusiones repetitivos y interminables en cuales nadie quiere desistir de su posición. Por lo tanto quiero recordar a todos con ese título que es solamenta la opinión de una sola persona y que no haya una exigencia a la universalidad de lo dicho.

Me hubiera gustado traducir el ensayo al Español tambien, pero tengo que estudiar por mis examenes universitarios, así que no me queda tiempo para traducirlo. A lo mejor voy a traducirlo al Español despues de un tiempo. Si sepan hablar Inglés, por favor se unan a una discusión sobre lo dicho. Contribuciónes a la discusión seran verificados como tales por mí y por lo tanto puede pasar un rato antes de que sean disponible en público.