Tag Archive: law

Swiss Law instead of Foreign Judiciary?

Is Swiss sovereignty being eroded by foreign judges? The promoters of the “Self-Determination Initiative” argue that Switzerland’s constitution and its laws should take precedence over international treaties. The People’s Party targets the bilateral treaties with the EU and the European Court of Justice in particular, according to political experts. Opponents of the initiative say the rightwing proposal would undermine Switzerland’s international reputation and its role as a reliable trading partner, as well as deal a blow to human rights.

The question of primacy between national and international law has been simmering for years in Switzerland and elsewhere. Human rights are of course international. We use the terminology that they are universal. This is obviously somewhat inconvenient for the government of nation-states, who have traditionally claimed absolute power over their citizens. The extent to which we have international human rights, or a court of international human rights, is necessarily going to interfere with the kind of claims that a national government can make. Additionally, these rights may be inconvenient in relation to what a nation state might intend to do. These rules and standards bestow upon the nation-state — one of the major violators of human rights — the responsibility of protecting human rights. It is called the “paradox of human rights”. International human rights rely on the nation-states to put rights into effect. And yet nation-states are often reluctant to countenance human rights because those human rights will necessarily put a limitation to the kind of power they have as national governments; their state sovereignty. These themes run through all human rights law. They run through the European Convention on Human Rights as much as through the Universal Declaration of Human Rights by the United Nations, or any other body of human rights.

It is worth stressing that with the European Convention on Human Rights we are looking at a system where individual petitions can be submitted to a court. As a citizen, I can take a case to the European Court of Human Rights, and the court may award remedies. Hoffman and Rowe (2010) argue that the Convention was an extremely radical innovation. Never before has there been a system of international law which holds states accountable to some superior court in respect of actions against their own citizens. Previous international courts and tribunals were constituted solely to settle disputes between states, or in the case of the Nuremberg tribunal, to try individuals for their own criminal responsibility. Coming back to the so-called Swiss “Self-Determination Initiative”: if my government violates my human rights and has no more obligation to protect them, where can I go?


Image credits: Stan Wayman, extracted from IPTC Photo

[Hoffman, D., & Rowe, J. J. (2010) Human Rights in the UK: An Introduction to the Human Rights Act 1998, Pearson Education]

Policy Implementing vs. Dispute Resolving

Property rights are fundamental to law and economics. La Porta et al. (1997) show that countries with poorer investor protections, measured by both the character of legal rules and the quality of law enforcement, have smaller and narrower capital markets. These and other authors argue in a succession of articles that the common law is economically superior to the civil law system. The term civil law describes those systems which have developed out of the Romano-Germanic legal tradition of continental Europe. It is the civil law tradition which dominates whithin the present European Union, but common law is economically superior to civil law because common law systems

  • have stronger investor protection and provide easier access to equity. This leads to larger stock markets, more numerous companies and more IPOs;
    [La Porta, R., Lopez-de-Silanes, F., Shleifer, A., & Vishny, R. W. (1997) Legal determinants of external finance, Journal of finance, pp. 1131 – 1150]
  • have better protection of outside investors relative to insiders and agents (compared e.g. to French civil law);
    [La Porta, R., Lopez-de-Silanes, F., Shleifer, A., & Vishny, R. (2000) Investor protection and corporate governance, Journal of financial economics, 58(1), pp. 3 – 27]
  • have lower entrance barriers to markets (procedures, time, cost);
    [Djankov, S., La Porta, R., Lopez-de-Silanes, F., & Shleifer, A. (2002) The regulation of entry, The quarterly Journal of economics, 117(1), pp. 1 – 37]
  • have more efficient courts, measured by the procedures used by litigants and courts to evict a tenant for nonpayment of rent and to collect a bounced check;
    [Djankov, S., La Porta, R., Lopez-de-Silanes, F., & Shleifer, A. (2003) Courts, The Quarterly Journal of Economics, 118(2), pp. 453 – 517]
  • show lower labour market regulation and a higher labour-force participation rate, and therefore lower unemployment rates (with some exception);
    [Botero, J. C., Djankov, S., Porta, R. L., Lopez-de-Silanes, F., & Shleifer, A. (2004) The regulation of labor, The Quarterly Journal of Economics, 119(4), pp. 1339-1382]
  • have laws mandating disclosure (e.g. to mortgage borrowers) and facilitating private enforcement through liability rules that benefit stock markets.
    [La Porta, R., Lopez‐de‐Silanes, F., & Shleifer, A. (2006) What works in securities laws?, The Journal of Finance, 61(1), pp. 1 – 32]
  • have more efficient procedures in case of insolvency – measured by time, cost, and the likely disposition of the assets (preservation as a going concern vs. piecemeal sale);
    [Djankov, S., Hart, O., McLiesh, C., & Shleifer, A. (2008) Debt enforcement around the world, Journal of political economy, 116(6), pp. 1105 – 1149]

This boils down to higher levels of investment and higher rates of growth in common law countries.
[La Porta, R., Lopez-de-Silanes, F., Shleifer, A., & Vishny, R. W. (1997) Legal determinants of external finance, Journal of finance, pp. 1131 – 1150]

‘First, the built-in judicial independence of common law, particularly in the cases of administrative acts affecting individuals, suggests that common law is likely to be more respectful of private property and contract than civil law.
Second, common law’s emphasis on judicial resolution of private disputes, as opposed to legislation, as a solution to social problems, suggests that we are likely to see greater emphasis on private contracts and orderings, and less emphasis on government regulation, in common law countries. To the extent that there is regulation, it aims to facilitate private contracting rather than to direct particular outcomes. Pistor (2006) describes French legal origin as embracing socially conditioned private contracting, in contrast to common law’s support for unconditioned private contracting. Damaska (1986) calls civil law “policy-implementing,” and common law “dispute resolving.”
Third, the greater respect for jurisprudence as a source of law in the common law countries, especially as compared to the French civil law countries, suggests that common law will be more adaptable to the changing circumstances, a point emphasized by Hayek (1960) and more recently Levine (2005). These adaptability benefits of common law have also been noted by scholars in law and economics (Richard Posner 1973, Paul H. Rubin 1977, George L. Priest 1977, Giacomo A. M. Ponzetto and Patricio A. Fernandez forthcoming), who have made the stronger claim that, through sequential decisions by appellate courts, common law evolves not only for the better but actually toward efficient legal rules.’
[La Porta, R., Lopez-de-Silanes, F., & Shleifer, A. (2008) The economic consequences of legal origins, Journal of economic literature, 46(2), pp. 285 – 332]

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