Introduction
Troxler was a true “citoyen” (citizen). In all the spheres in which he was active, be it as a doctor, philosopher, pedagogue or politician, he was concerned not only with theory, but tried to balance theory with practice, with activity. “Emotion without action [is] only half a life”2, was the credo he followed throughout his life. He was deeply convinced that in the connection between a vita contemplativa and a vita activa, in the sense of the commitment to the bonum commune, man fulfils himself.
In accordance with this attitude Troxler was never merely a scholar, a man of books, but experienced together with his family flight and exile because of his political objections. Twice he lost promising positions. He could have kept quiet and continue on his academic career. However, he could not help it, bravely intervened in current political debates, and ventured everything. That he nevertheless found time and space for the necessary concentration to write a paper or numerous articles is extraordinary. Troxler succeeded only thanks to the support of his wife and thanks to a broad network of contacts in Switzerland and Europe. He would certainly have wanted to write more and always dragged numerous book projects around with him. Each time, he put something on paper, the respective experts or the political authorities listened attentively and discussions and further investigations were encouraged. Seldom, Troxler could count on academic and collegial support, and yet he repeatedly managed to complete important book projects, such as “Philosophische Rechtslehre” (Philosophical Theory of Law), even if not to the extent desired. Therefore, accusing him of “superficiality” and “one-sidedness” misunderstands his unstable life situation and the contemporary-historical circumstances.3
Troxler was a devout Christian and Catholic and vehemently advocated democratic progress. He is difficult to classify politically. Some see him as the radical-democrat and misjudge or ignore his references to conservatism, while others denounce him as conservative and ignore his progressive features. Undoubtedly, Troxler was a personality who placed human freedom at the centre of his considerations, while at the same time sticking to Christian fundaments and combining in his conception of man the Christian with the modern natural law of the Enlightenment. Teachers and companions shaped and influenced this conception.
The meaning of Reform Catholicism
Troxler enjoyed higher education at the Lyceum in Lucerne. There, two teachers influenced him, namely Franz Regis Krauer (1739–1806) and Thaddäus Müller (1763–1826), both of them were followers of the Catholic Enlightenment and advocated church reforms and emphasised the importance of a modern, contemporary education.
In 1756, Krauer joined the holy order of the Jesuits and was professor of rhetoric and poetry in Lucerne of the top two classes at the Jesuit College from 1769. Although the Jesuit Order was dissolved in 1773, Krauer continued to teach until short before his death on the now nationalised college. As a representative of the Reform Catholicism, he joined a contemporary school and renewed together with Joseph Ignaz Zimmermann the German and literature lessons. He was also in contact with his brother Nivard Krauer, who had made a name for himself as a pioneer in reforming the elementary school in the St Urban Monastery and became head of the first teacher training college in Switzerland.4 St. Urban’s and its charismatic influence lead to an educational advantage of the Catholics5 in Switzerland – in contrast to common historical views.
From 1789 to 1796 Müller was teacher of rethoric at the Gymnasium and Lyceum in Lucerne and from 1796 to 1826 parish priest and for some time episcopal commissioner. He was also a representative of the Catholic Enlightenment and was considered a staunch loyalist of the Helvetic Republic. Müller campaigned intensively for the implementation of the ecclesiastical reforms of Constance’s vicar general Ignaz Heinrich von Wessenberg. He was hold in high esteem beyond the Canton of Lucerne and in 1810 was the cofounder of the Schweizerischen Gemeinnützigen Gesellschaft (Swiss Society for the common good).6
In this stimulating environment, Troxler formed his conception of man and the world, a conception defining science with republican-democratic aims in the service of Christian humanity and in the spirit of freedom. Education and training, according to the example of Krauer and Müller, were given great importance. In the spirit of reform catholicism, Troxler repeatedly called for religious tolerance in his long life. Therefore, in 1841 he lamented during a constitutional struggle in Lucerne that the new constitution would exclude non-Catholics from cantonal citizenship. Such intolerance
“catholically tears apart the bond that has been created by the Peace of Augsburg and by the two communities of Christian religion , and excludes the reformed confederates of other cantons, as one of the noblest Swiss put it, like plague-sufferers, from the catholicised cantonal and communal civil rights.”7
He considered this “fury of discord” as an “unchristian and inhumane destruction of the highest freedom of man, the freedom of belief and conscience”.8
Troxler – the wary Helvetian
At a young age Ignaz Paul Vital Troxler enthusiastically absorbed the ideas of the French Revolution – conveyed to him by his teachers in Lucerne. He was convinced that these ideas would make their breakthrough in Switzerland even after the Helvetic upheaval in 1798. Therefore, he interrupted his education and commissioned himself as secretary of the vice-governor of a Lucerne district of the Helvetic state. But soon the young officials were sobered by the violence of the French army and their own powerlessness. Troxler quit his job and went to Jena for studying. This early political experience left its formative influence in him. On the one hand, he clung to the ideas of the French Revolution and his aroused sense of freedom, on the other hand, the volatility and duplicity in politics filled him with “horror and disgust”.9
Over the following decades, Troxler developed his approach to a legal and political philosophy. The federal (pre-) democratic traditions were to be linked with the results of the French Revolution, that is, with modern natural law and the principle of popular sovereignty. Troxler’s maxim was from there on, to put these theories into practice , a maxim he pursued uncompromisingly and combatively.
In 1814, he supported the opposition to the reintroduction of aristocratic conditions in Lucerne. He developed a political concept, a concept constantly being refined and justified in theory. Therefore, he wrote a petition, launched a popular petition, and thus promoted popular resistance. It was important to Troxler to involve the population to a large extent. In later years, he followed a similar course and repeatedly supported the organisation of a rural popular assembly in order to make the political initiative more concrete. Troxler was one of the first in Switzerland to call for the election of a constitutional council, that is, a constituent assembly, within the framework of a political upheaval. By no means should the incumbent legislative power (in Lucerne, the Grand Council), which in many cantons of the restauration was determined, partly indirectly and partly by means of an unequal election procedure (census), draft a new constitution. New political forces should have the opportunity to be elected to the Constitutional Council in a direct election without a census in order to initiate a cantonal relaunch. The aim was to put pressure on the respective cantonal government and parliament in this way. The elected constitutional council was not allowed to sit behind closed doors, but had to give the population the necessary insight in order to incorporate suggestions and wishes into the constitutional process by means of petitions. In several cantons, it was possible to handle this political process and thus to gain important experience for future democratic disputes.10
Troxler thus made an important contribution to a political culture that consciously followed the traditions of the Swiss Confederation, such as the principles of cooperations and the “Landsgemeinde” (cantonal assembly). In this regard, he spoke of the “meaning of the eternal covenants, as expressed by the true Confederates themselves”11 thereby laying intellectual and practical foundations for the later development of direct democracy. In parallel, he campaigned vehemently for the freedom of the press, which should guarantee to support the political struggle in public. He wrote – partly anonymous – almost non-stop contributions to Swiss daily and weekly papers, wrote leaflets and scientifically well-designed articles for magazines.12
Troxler’s political involvement was responsible for having to go into exile in liberal Aarau several times. In 1823, in addition to his doctor’s surgery, he was engaged on a voluntary basis in the “Bürgerlicher Lehrverein” (civil teaching association). He taught pupils and students, the “Lehrgenossen” (learning companions), theoretical knowledge with the necessary foundation in reality. When he received an appointment to the chair of philosophy at the University of Basel in 1830, the fruits of his pedagogical and political activity became more and more apparent. Some of the more than two hundred “Lehrgenossen” played a central role in the period of upheaval in 1830 and beyond. They laid a republican foundation for Switzerland and consolidated the democratic structures. In Basel, following his political maxim, Troxler supported what he considered the legitimate claims of Basel-Landschaft (the countryside) towards Basel-Stadt (the city). One of his former learning comrades had initiated the debate in Basel-Landschaft. Again, his advocacy of freedom and democracy lost him his teaching position. Back in exile in Aarau, he continued to commit himself to the revolutionary changes in various cantons, including Lucerne. There, following his political concept and “inspired by the sense of freedom and communal spirit, which are innate in every Swiss heart”13 he supported the organisation of public meetings and the writing of petitions and demanded a freely elected constitutional council in newspaper articles and leaflets.14
However, Troxler did not want to limit the will to change to the cantonal level and advocated early on for a revision of the federal treaty and the creation of a federal state. The basis for this was his concept of democracy (see below), which he further developed in the course of the 1830s. It was important to him to develop the rights of the people in order to promote, as he said, “pure” democracy and “true people’s sovereignty”.15
After his appointment to the University of Berne in 1839, Troxler represented a no longer current, that is anti-Hegelian philosophy, was ignored more and more in colleagues’ circles and expressed himself publicly less and less. At the federal renewal of 1848, however, he once again decisively intervened in the discussions. For some time now, Troxler had promoted a state conception with a bicameral system modelled after the USA. His pamphlet “Die Verfassung der Vereinigten Staaten von Nordamerika als Musterbild der schweizerischen Bundesreform” (The Constitution of the United States of America as a Model of the Swiss Federal Reform)16 was sent to the crucial Swiss Federal Commission by one of his former students. Troxler was concerned with a solution based on the Helvetic model, a solution balancing cantonal sovereignty and central government, that is, balancing the Confederation and a unified state: One has to aim “at a Confederation conciliating both extremes, a federal state with an organically structured relationship of cantonal independence and federal dependence”17. This idea became reality, and therewith Troxler put its stamp on the Swiss federal state.
Natural law as the basis
Conceptually, Troxler built his philosophy of law and of the state on natural law. In 1816, he published a new journal, “The Swiss Museum”, in Aarau. The lifespan of this magazine was only around two years, but it was very central to Troxler’s work on the Helvetic period. In it, he himself published leading legal and political treatises on topics such as “The Idea of the State and the Essential Character of Representation by the People”, “On the Freedom of the Press in General and in Special Relation to Switzerland” and “On the Fundamentals of the Representation System”.18
These texts, which centre on the idea of freedom, were considered important manifestos of early liberalism. For Troxler, unconditional intellectual freedom, from which everything is derived, represented the greatest “primordeal right”, and corresponding importance was attributed to a free press. At the time he wrote in a letter: “For the time being, press freedom is the most important thing, as you will also find. If we achieve this, we will have won everything”.19 Troxler’s writings in the “Swiss Museum” were in many respects the basis for one of his major works. This treatise, the “Philosophical Theory of Nature and Law, in Consideration of the Heresies of Liberality and Legitimacy”,20 combines natural Law with the ethical values of Christianity.
In his introduction Troxler describes his motives for writing this document: “For years I was attracted by the development of human evolution in the state – not the state merely as an existing form.”21 He defined his philosophical position, according to his subtitle, by way of principles that “are just as far from those which appear in the Contrat Social of our Rousseau, as from those which appear in the contracted condition of our Haller”.22 Thus Troxler wants to draw “a kind of central line”, and has no objections, “to stand beside those mentioned, in independence and impartiality, with patriotism and an enthusiasm for freedom”.23
In his introduction, Troxler clarifies that he interprets the natural law anthropologically:
“A Philosophical doctrine of the law demands with the greatest justice, according to its nature, the existence of an inner law which determines and fixes what is right and wrong from within itself, absolutely, without any preceding conditions, and without limiting relations.”24
And further:
“This law must be a law of nature, but since, in the task we have set ourselves, man is his own object, it can be nothing other than a law of nature arising from human nature and relating back to itself. This law must be inherent in every human being (equal to the moral law).”25
In this context, Troxler speaks of the “legal state of the nature of man” and of an inherent human law which he equates with the human conscience. For him, the philosophy of law is “synonymous with a law of reason or natural law”.26
The law of right does not appear in the state as a mere idea or only as an ideal, but as an actual law of nature, which is to judge and refine all positive legislation everywhere and at all times. Positive law thus requires a natural law basis. This relationship was central to Troxler, and he resisted an absolutisation of natural law (Rousseau) as well as of positive law (Haller). He also emphasised that the law of nature, as he defines it, is a “divine law of nature.”27 Thus he combined Christian and modern natural law and joined a tradition founded by the School of Salamanca as early as in the 16th century.
The School of Salamanca decisively shaped the epoch of Late Spanish Scholasticism and laid the foundation for combining Christian and modern natural law. The school became a bulwark against the so-called “Divine Grace”, i.e. the legitimist position that Karl Ludwig von Haller again took up and propagated at the beginning of the 19th century, and against which Troxler defended his ideas with his “jurisprudence”. Already the School of Salamanca had taken the step from natural law to the doctrine of human rights, and the enlighteners of the 18th century were able to continue on this basis.28
Almost simultaneously with Jean Bodin (1529/30–1596), who at that time developed his Concept of Sovereignty, the School of Salamanca promoted debates on natural and international law. Bodin saw Christian natural law as a clear boundary, and this was now expanded by the representatives of the School of Salamanca. In this, they derived their natural-law argumentation from a very free and partly novel approach to the theological tradition.29
The historical background of that time were the discovery and conquest of Central and South America by the Spaniards and the Portuguese, the economic processes of change in the transition from the European Middle Ages to modern times, as well as humanism and the Reformation. As a result, the traditional concepts of the Roman Catholic Church came under increasing pressure at the beginning of the 16th century, and genuine colonial ethics as well as a new business ethic was called for. This meant that at that time there was a renewal of medieval ideas about man and community and their relationships.30
The Spanish lawyer and humanist Fernando Vázquez de Menchaca (1512–1569) referred to the Christian-natural law tradition influenced by Thomas Aquinas. In this tradition it was assumed that there were divine, eternally valid laws positioned above positive legislation. The lex aeterna, by which God acted, was seen to rank at the top; second place was accorded to the lex divina, which God had directly communicated to man in his writings. Finally, there was the lex naturalis, which God had implanted in man, in order for men to be able to recognise his divine plan. This is exactly what Troxler meant when he spoke of the “inner law” and stated that in human nature everything is already there and must be developed through conscience formation.
Vázquez explained that Christian-natural law already contains the idea of the rational nature of man.31 This idea was the decisive starting point for later developing a secular, modern natural law.
With reference to Thomas Aquinas, it was possible for Vázquez and other representatives of the Salamanca School to address urgent problems of their time and theoretically combine them with Christian natural law. Although Vázquez firmly stood in the scholastic tradition and argued – as the other representatives of the school – in the context of his basic Christian understanding, he made this tradition fruitful for modern natural law, which was based on the original freedom and equality of all men.32 Troxler later took this up, without referring explicitly to the representatives of the School of Salamanca.
Francisco de Vitoria (about 1483–1546), another representative of that school, also emphasised the community-building social nature of man, which led men to voluntarily associate with others in communities. The state is that form of life that can best do justice to man’s nature. In this kind of community, men can perfect their skills, interact with others and support each other. Troxler noted in this context that “politics is the reconciliation of man with the world”33.
Only in this way, Vitoria continued, could a decent life be led, in line with man’s positive and negative characteristics. As a citizen of a state, a man remains a free being, but in the event of conflict he must subordinate his individual wellbeing to the common good of the community – the bonum commune. This principle was also incorporated into the notion of the international community as totus orbis – as coexistence and community of equal and sovereign states, independent of religion and culture. Individual members of the international community should not only pursue their own interests, but should also be responsible for promoting the global common good, the bonum totius orbis.34
The Jesuit Francisco Suárez (1548–1617), who taught mainly at the University of Coimbra in Portugal, also influenced the School of Salamanca and anticipated the idea of “popular sovereignty”. Suárez wrote in 1612 in his Treatise on the Laws and God the Legislator, that God is the origin of all state power (sovereignty), and that the “community entire,” i.e. the people, was the recipient and then the bearer of this power, according to natural law. Contrary to the concept of divine law, Suárez argued that God had never chosen a single person or group of people to be the carriers of state power. After receiving state power, the people could exercise this power themselves or surrender it voluntarily to a single person or to an authority. Suárez’s derivation of the state from divine law and natural law thus saw the people as the organising and shaping force of the state. According to Suárez, the people would, in this context, also have a right to resist.35
The fact that both Catholic and Reformed scholars (Lutherans and Calvinists) dealt intensively with natural law, was illuminating in view of the discussion about democracy. Hugo Grotius (1583–1645) was an important bridge builder between the Christian denominations in this context. He knew the writings of important representatives of the School of Salamanca. With his writings, Grotius himself laid important foundations for the definition of modern natural law and international law. The writings of Grotius and those of Samuel Pufendorf (1632–1694) were translated by Jean Barbeyrac (1674–1744), who thereby laid the foundation stone for the French School of natural law (École romande du droit naturel). For Switzerland and the conflicts surrounding its form of democracy, this process was very significant, as the “École romande” was central to the discussion of modern natural law in Switzerland. Thus Rousseau, while trying to clarify his idea of popular sovereignty, referred to the natural law doctrine of one of Barbeyrac’s followers, Jean-Jacques Burlamaquis (1694–1748).36 Central concerns of Christian-rational natural law were thus incorporated into positive constitutional law, in line with the first American constitutions since 1776. Troxler built his natural law-based concept of democracy on this foundation.
In Troxler’s “Philosophical Theory of Law” there is no reference to the French-speaking Natural-Law school, but he does point to Grotius and Pufendorf, among others, in a brief outline of the history of natural law.37 •
1 <link http: www.fidd.ch>www.fidd.ch
2 Troxler, Ignaz Paul Vital. Volkssouveränität die ächte und die falsche oder Luzerner! was ist revolutionär?, in: Rohr, Adolf (Hg.). Ignaz Paul Vital Troxler (1780–1866), Politische Schriften in Auswahl. Vol. 2, Berne 1989, p. 502–516, quote from p. 506
3 Gschwend, Lukas. Kommentierende Einleitung, in: Troxler, Ignaz Paul Vital, Philosophische Rechtslehre der Natur und des Gesetzes, mit Rücksicht auf die Irrlehren der Liberalität und Legitimität. Würzburg 2006, p. 11–56, quote from p. 15
4 Wicki, Hans. Staat, Kirche, Religiosität. Der Kanton Luzern zwischen barocker Tradition und Aufklärung. Luzern 1990, 497f.; also Marti-Weissenbach, Karin. Art. Franz Regis Krauer, in: Historisches Lexikon der Schweiz (HLS), Vol. 7. Basel 2008, pp. 429
5 Schmidt, Heinrich Richard. Bildungsvorsprung des Schweizer Katholizismus um 1800?. in: Roca, René. (Hg.), Katholizismus und moderne Schweiz, Beiträge zur Erforschung der Demokratie. Vol. 1, Basel 2016, p. 81–94, quote from p. 89–91
6 Roca, René. Bernhard Meyer und der liberale Katholizismus der Sonderbundszeit. Religion und Politik in Luzern (1830–1848). Berne 2002, p. 41–44; also Bischof, Franz Xaver. Art. Thaddäus Müller, in: Historisches Lexikon der Schweiz (HLS), Vol. 8, Basel 2009, p. 835
7 Troxler, Ignaz Paul Vital. Volkssouveränität, S. 512
8 Ibid.
9 Troxler, Ignaz Paul Vital. Einige Hauptmomente aus meinem Leben, in: Rohr, Adolf (Ed.). Ignaz Paul Vital Troxler (1780–1866), Politische Schriften in Auswahl, First Volume, Berne 1989, p. 383–393, quote from p. 390
10 Roca, René. Wenn die Volkssouveränität wirklich eine Wahrheit werden soll … Die schweizerische direkte Demokratie in Theorie und Praxis – Das Beispiel des Kantons Luzern, Zurich/Basel/Geneva 2012, p. 91–93
11 Troxler, Ignaz Paul Vital. Was verloren ist, was zu gewinnen. Rede in der Versammlung der Helvetischen Gesellschaft, in: Rohr, Alfred, Troxler, Vol. 2, p. 39–67, quote from p. 60
12 Roca, René. Ignaz Paul Vital Troxler und seine Auseinandersetzung mit der Helvetik – Von der repräsentativen zur direkten Demokratie, in: Zurbuchen, Simone et al. (Ed.). Menschenechte und moderne Verfassung. Die Schweiz im Übergang vom 18. zum 19. Jahrhundert, Geneva 2012, p. 97–106, quote from pp. 100.
13 Troxler, Ignaz Paul Vital. Ehrerbietige Vorstellungsschrift an den Grossen Rath des Kantons Luzern. Eingereicht durch achtzehn Abgeordnete des Volks am 22. November 1830, in: Rohr, Adolf. Troxler, Vol. 2, p. 177–187, quote from p. 179
14 Roca, René. Ignaz Paul Vital Troxler und der Aarauer Lehrverein. Wie eine private Bildungsanstalt die Demokratieentwicklung in der Schweiz entscheidend förderte. In: Argovia 2014, Jahresschrift der Historischen Gesellschaft des Kantons Aargau, Vol. 126, Baden 2014, p. 140–154, quote from p. 150–153
15 Troxler, Ignaz Paul Vital. Volkssouveränität, p. 505
16 Troxler, Ignaz Paul Vital. Die Verfassung der Vereinigten Staaten Nordamerika’s als Musterbild der Schweizerischen Bundesreform (1848), in: Rohr, Adolf. Troxler, Vol. 1, p. 529–553
17 Troxler, Ignaz Paul Vital. Bemerkungen über den Entwurf des Grundgesetzes für den eidgenössischen Stand Luzern von dem Ausschuss des Verfassungsraths im Jahre 1841, in: Rohr. Troxler. Vol. 2, p. 477–496, quote from p. 486
18 Troxler, Ignaz Paul Vital, contribution in
“Schweizerisches Museum”, in: Rohr, Adolf. Troxler, Vol. 1, p. 445–568
19 Troxler to Karl August Varnhagen von Ense,
12 May 1816, quoted after Rohr, Adolf. Einleitung zu Troxlers politischem Schrifttum (introduction to Troxler’s political literature), Vol. 1, Berne 1989, p. 9–293, quote from p. 39
20 Troxler, Ignaz Paul Vital. Philosophische Rechtslehre der Natur und des Gesetzes mit Rücksicht auf die Irrlehren der Liberalität und Legitimität (Philosophical Theory of Law and Nature of Law considering the Heresies of Liberality and Legitimacy, First Edition: 1820), edited by Gschwend, Lukas. Würzburg 2006
21 Ibid. p. 57
22 Ibid.; the Bernese aristocrat Karl Ludwig von Haller (1768–1854) is meant here, who with his corpus Restauration der Staatswissenschaft (Restoration of the Political Science, 1816–34) gave this era its name. Thereby, Haller tried to legitimate the Ancien Régime rationally and created a fundamental programme of a counterrevolution by his declaration of war to the modern age.
23 Ibid.
24 Ibid., p. 60 (emphasis mine)
25 Ibid.
26 Ibid.
27 Ibid., p. 61
28 Roca, René. Einleitung Katholizismus (Introduction Catholicism, p. 38–41
29 Roca, René. Volkssouveränität (Popular Sovereignty), p. 32–34
30 Seelmann, Kurt. “Die iberische Spätscholastik als historischer Wendeprozess” (The Iberian Late Scholasticism, in: Müller, Klaus E. (Ed.). Historische Wendeprozesse. Ideen, die Geschichte machten (Historical Turning Processes. Ideas that made History), Freiburg im Breisgau 2003, p. 114–127, quotation from pp. 115
31 Glockengiesser, Iris. Mensch – Staat – Völkergemeinschaft. Eine rechtsphilosophische Untersuchung zur Schule von Salamanca (Man – State – Community of the Peoples. A Jurisprudential Study to the School of Salamanca). Berne 2011, p. 11–13
32 Seelmann, Kurt. Theologische Wurzeln des säkularen Naturrechts. Das Beispiel Salamanca (Theological Roots of the Secular natural law), in: Willoweit, Dietmar (Ed.). Die Begründung des Rechts als historisches Problem (The Foundation of Law as an Historical Issue), Munich 2000, p. 215–227, quote from p. 215–218
33 Troxler, Ignaz Paul Vital. Rechtslehre (Theory of Law), p. 64
34 Glockengiesser, Mensch (Man), p. 103–110
35 Brieskorn, Norbert; Suàrez, Francisco. “Francisco – Leben und Werk” (Francisco – Life and Achievement), in: Suárez, Francisco. Abhandlung über die Gesetze und Gott den Gesetzgeber (Treatise on the Laws and God the Legislator, 1612) translated into German, edited and attached with an annex by Norbert Brieskorn. Freiburg im Breisgau 2002, p. 635–657, quotation from p. 653–656
36 Roca, René. Volkssouveränität (Popular Sovereignty), p. 51–53
37 Troxler, Ignaz Paul Vital. Rechtslehre, (Theory of Law), p. 68