Natural law and popular sovereignty – important elements of democracy in Switzerland (part 2)
Natural law and popular sovereignty – important elements of democracy in Switzerland (part 2)
Ignaz Paul Vital Troxlers conception of democracy
by Dr phil. René Roca, Research Institute Direct Democracy1
The year 2016 was a year of commemoration for Troxler (Troxler-Gedenkjahr). 152 years ago, on 6 March 1866, Ignaz Paul Vital Troxler (born 1780) died. He was a doctor, philosopher, pedagogue, and politician, and made outstanding achievements in all these areas. Various events during the year of commemoration were dedicated to Troxler’s work. Conference reports and other documents are available on the worthwhile website <link http: www.troxlergedenkjahr2016.ch>www.troxlergedenkjahr2016.ch . The research on Troxler’s extensive work will continue.
In the following, the second part of a written presentation will be published, which the author has held during a symposium in the former St Urban Monastery about Troxler’s work. The first part (see “Current Concerns” No. 31, December 2017) sheds light on Troxler’s career and the training of his legal and political philosophy, which he founded on natural law. Part 2 focuses specifically on Troxler’s definition of popular sovereignty and his concept of democracy.
Popular sovereignty as a consequence
In the following years Ignaz Paul Troxler developed his concept of democracy, constantly referring to his approach to natural law as he had laid it down in his treatise “Philosophical theory of nature and law”. The crucial term in this regard was “popular sovereignty” (Volkssouveränität)”. Using the most important works of Troxler’s, it will be demonstrated in the following article how he defined and characterized this term.
1822 – the Helvetian Society
Troxler was appointed director of the Helvetian Society in 1822. Originally this society had been founded in 1761/1762 and its members, all of them adherents to the enlightenment, supported a new concept of natural law emancipated from confessional preconditions. The aim of the society was to further reforms in contemporary Switzerland. A yearly conference at first in Bad Schinznach and later also in other places in Switzerland served as a platform for the young intellectuals and politicians. Their hope was to reinvigorate the lost sense of commitment to the bonum commune by overcoming the confessional antagonisms, with a new view on national politics. Due to international events there had been a gap in the activities between 1798 (Helvetik) and 1807, when Liberals renewed the efforts during the mediation and started the yearly conferences anew.2
As the president Troxler enjoyed the privilege to give the opening address in Schinznach. This speech which was later published under the title “What has been lost, what is to be gained” would become another crucial political text for him. Six months previously Troxler had been removed from his teaching position in Luzern but he decided to make his speech anyway, in a less radical tone.2
Troxler called for a moral approach to politics and underscored this with philosophical-historical arguments based on thoughts of the Swiss historian Johannes Müller (1752-1809): what was to be aimed for was the “seed of renewal of the old Swiss Confederation into new life”.3 A new consciousness of the state was to be established:
“This [i.e. the state] appeared to be solitary and solely concerned with matters of earthly existence. […] This way the state lost its soul, and in-order to continue on the road of separation from the spiritual world with all of its powers, the state had to throw over board more and more, at the end even reason and nature, freedom and the law, in-order to survive.”4
Troxler emphasised that, on the contrary, the state “[…] in its essence as the great community of men was to be regarded the same way as human nature in its development in a single human being”5. And he continues:
“Therefore the true human state requires a free public life of the people, and this life can only be achieved in the unification of what is called political freedom of the citizens, on the whole and in all its details. […] The force of the nation alone is the true fountain of life.”6
Strikingly, Troxler postulates a moralistic approach to politics. In his argument Troxler makes an excursion into the history of the founding fathers of the Swiss confederation and shows the importance of moral foundations which had been laid then:
“In those days the confederation had not been fully developed yet in all shapes and details, but the essence, content and aim of the Covenant, the reason why it was there, was already represented in the purest sense. They [i.e. the fathers of the Federal Charter of 1291] provided the living proof that fear of God, comradeship, commitment to the common good, love of freedom, loyalty, bravery and justice are the foundations from which states will flourish, and provide happiness, power and fame to the people.”7
Troxler goes on to demonstrate, citing Johannes Müller, how during Swiss history these virtues declined and were lost due to the habit of conquering neighbouring regions and going abroad as mercenaries, because “[…] ruling gives pleasure and reeving [i.e. exploiting subdued regions] gives profit”8, and because “greed for money is the weakness of the Swiss”9. He diagnoses a total loss of the above-mentioned virtues in the 17th and 18th centuries and that the principle of all government emanating from the people10 had been ignored. Government and people had been alienated from each other totally, aristocratic structures replaced the pre-modern democracies in many cantons. In this connection Troxler describes an “obvious decline of the republic” and the people being in a “state of bondage”11, in other words the decline of autonomy and popular sovereignty in the various cantons. While Troxler did not want to return to the old Federation, he argued to reinvigorate the spirit of the “eternal covenants”12, because “only the people who live their lives in reason and freedom and have rooted their lives in virtue as their true objective, are really happy and powerful, striving for that of God.”13
This “spirit” was what had been lost, according to Troxler, and what was to be regained. For him the basics of republicanism were not confined to a certain type of constitution but had to be lived by the citizens in their values and sense of history. In his address to the Helvetian society Troxler defined popular sovereignty as an “internal moral force”, which acts as the source of external political life of the people, without which “ [...] human nature and its force cannot develop unhindered and express itself”14:
“All people were great and strong only insofar as they were able to reach beyond the state, its powers and laws, and reach out towards the sources from which these laws and powers emanate. No people has been created just for this dull, low life commonly referred to as wealth and quietness.”15
At the end of his speech, which had thrilled the members of the Helvetian society into standing ovations, Troxler demanded politics inspired by the “eternal fountain” of the moral force.
1830 – the breakthrough towards representative democracy with the regeneration
In 1830 – Troxler was a professor in Basel at that time and supported the opposition in the regional parliament – he became involved with the Regeneration movement of Luzern and published a petition to the Great city council of Luzern in November 1830. He outlined a detailed political programme and reclaimed full popular sovereignty referring to the solemn abdication of the patricians in 1798. Moreover, he demanded a constitution legitimised by the people with just representation of the city, municipalities and the countryside. He also took up the line of thoughts from his Schinznach address and applied it to recent events in Swiss history. While the “old freedom” had been reinstalled in 1798 when the powers of the state had been given back to the people, this regained freedom however had been “utterly destroyed” by the patricians with their restauration constitution of 1814. This constitution had been imposed without ever consulting the people who had never sanctioned or legitimised it. Thereby he acknowledged what had been achieved in the Napoleonic era and emphasised that development in Switzerland could only be an “organic evolution” of democracy and constitution in his point of view.16
On 21 November 1830 Troxler’s petition was discussed at a people’s convention in Sursee. Eighteen deputies were appointed who were to deliver the petition with the list of signatures to the government. The text stated that this was about “natural and documented rights”:
“This is popular sovereignty, apart from which there is no other; it is its realization by representative democracy; it is political freedom and equality of all citizens, instead of privileges for some families and individuals while others are disenfranchised.”17
With this text Troxler decisively influenced the Luzern regeneration movement. He made it plain that his concept of “popular sovereignty” was at the centre of his arguments as a “natural and documented right of human beings and citizens”18, and he also explained how it was to be practically achieved. A constitutional assembly, elected by equal and secret vote, was to draft a new constitution and include the wishes of the people, afterwards the people would vote and legitimise it. Afterwards, the people would elect their representatives for the legislative body in another equal and secret vote. A just representation of city, municipalities and countryside was to be guaranteed. Government was to be performed by representatives who had to face elections on regular terms. This concept of popular sovereignty was crucial pre-condition for the republic in Troxler’s opinion: “The main foundation of the republic is popular sovereignty in its entirety, and its realisation by representative democracy […].”19
With his memorandum, which was a petition at the same time and had been signed by more than 3,000 citizens, Troxler had explicitly referred to the Napoleonic revolution in Switzerland and to its consequences in the canton of Luzern. As shown above, the petition discussed the concept of human rights, and may be referred to as a milestone in the constitutional development in the canton of Luzern. Since the patrician families had abdicated in 1798, Troxler argued, all differences between places, families and persons had been eliminated, “eternally destroyed, and popular sovereignty as it is rooted in natural law had been established in the realm of the state as well”20. Similar to the liberals of the city Troxler favoured representative democracy at that time but leaned towards the democrats of the countryside with other demands, thereby fulfilling a bridging function.21
Finally, the petition was successful, under the constant public pressure the City council gave in and approved the election of a constitutional assembly. The people of the canton Luzern voted on the new constitution on 30 January 1831 and approved it with a broad majority. The patrician regime, which had come to power with the restauration of 1814, subsequently abdicated and a majority of liberal politicians took over. Like ten more so-called regenerated cantons in Switzerland, Luzern now had a representative-liberal constitution.
1841 – the step to pure or direct democracy
Troxler also played a decisive role in the political conflicts in various cantons during the Regeneration (1830-1848).
In particular he supported his home canton of Lucerne, where an overall revision of the cantonal constitution was debated from 1839 to 1841, including the introduction of a veto against laws. In the course of this dispute, Troxler made a decisive contribution to the theory of direct democracy.
He was one of the first to develop his model of representative democracy further into a model of direct democracy, wanting to concretise popular sovereignty with popular rights, in order - as he expressed it – “to make the people and their sovereignty”22 become a truth. It is illuminating that Troxler, in the course of the dispute of 1841, firstly applied the concept of popular sovereignty to the entire people (i.e. also to women23) and secondly in a sense of natural law also to former and following generations: “The Lucerne public as sovereign is not just the generation living now, not just all those citizens who voted on that day in May.”24
As early as 1839, when the revision debate began, Troxler made it clear that he no longer supported the ruling liberals, but the conservative-rural democrats, who wanted to introduce more popular rights. Troxler had a clear and pivotal guiding principle which expressed his change of heart from representative to direct democracy:
History and experience tell us that only greater and more direct influence of the people on our public affairs can guarantee more popular leadership and a happy course of our general life. Disbelief and distrust against the people, aversion and contempt of the people are the Republican’s greatest sin and the very root of spiritual and secular aristocracy, or rather oligarchy.25
In 1831 Troxler had, as shown, still been a vehement advocate of a liberal-representative constitution. Now, with the experience of a time under liberal rule in some cantons, and especially in Lucerne, he pleaded for a further concretisation of popular sovereignty.
Troxler saw the liberals of the city of Lucerne in particular as the new “rule of lords”. Therefore, the influence of the people on public affairs should now become greater and more direct. After a sometimes fierce dispute of the revision and after the ten-year period of rigidity laid down in the 1830 constitution, the people of Lucerne elected a Constitutional Council in 1841, composed in its majority of catholic-conservative members and rural democrats.
The Council set up a Commission to prepare a constitutional text. When it was finally published, Troxler studied the text of the constitution very carefully and basically criticised only the short period of time available to the population to read the draft and generate suggestions. Apart from church politics, he was otherwise full of praise for the draft:
It is gratifying, soothing and encouraging to see how finally a constitution or a basic, an original order of the state has emerged from the people and for the people. […] The influence of the people has become a truth, an achievement reached by the people themselves. It is the only way a nation can arise.26
In this context, Troxler also spoke of the “feeling of a people” and thus aimed at his organic view on history:
The feeling of a people at its respective level of development and education is legislative and should be self-constituting. This principle applies to church and state, is so profound and reaches so far, that if Catholicism and republicanism had not entered this feeling of the people and had not found their natural vivid reasoning in it, the lawmakers and rulers would search and strive for sanctions and guarantees in vain.27
However, Troxler clearly distanced himself from the church policies of the conservative-democratic commission and the Constitutional Council and held that a church constitution and a state constitution were two fundamentally different things. Troxler saw in the present draft a clear predominance of the Roman Catholic Church over the state. He therefore asked himself “whether the Canton of Lucerne had been declared a Roman province”28? Troxler himself saw the church and state “as two different, independent, living beings, which however mutually and alternately interpenetrate and drive each other to perfection”29. He developed the thesis of a “collegial system” on the relationship of state and church, which meant that both had their raison d’être and were to be protected from unjustified mutual interference. But the people still remains central: “True democracy recognises the people as essential and vivid in both [referring to church and state, the author] and guarantees its right and its freedom in faith and conscience, as well as in existence and change.”30 In the main however, as far as popular sovereignty was concerned, the Commission had achieved the very best:
The Commission has declared the Canton of Lucerne a democratic Free State [Article 1 of the draft constitution] in short a people’s state, and by this clear and straightforward statement they have made the people and their sovereignty become a truth; they have recognised the people and its plenitude of justice and power as the first, the highest and the last. Both the state and the church come from God, but both must be founded in the people by spiritual and worldly mediators, and they must be based on the people. The spirit and heart, mind and will, united into one nation, are the most mighty fortress of God and the essential and living foundations of the Church and the State in the world.31
In this respect, the draft constitution an important political step forward in Troxler’s view, not only for the Canton of Lucerne, but for the entire Swiss Confederation. Troxler had now thoroughly modified his concept of representative democracy and supported ideas to make popular sovereignty tangible. He therefore fully agreed with the Commission that made the following comment on Article 1 of the proposed constitution, “The Canton of Lucerne is a democratic Free State”32:
It is stated that the Free State is not just a democratic-representative, but a democratic one. In democratic states, the highest law is the true will of the people, the public opinion, which only bends to God’s will, to religion and justice. In democratic-representative states, however the will of the people is ceded to its representatives, and only a shadow of actual sovereignty itself is left to the people.33
With regard to popular rights and as a consequence of his own considerations, Troxler was already an advocate of the Referendum at that time. Back then, a request for a mandatory voting on all decrees and bills of the cantonal parliament was called a referendum. In 1844 a Constitutional Council, that was also dominated by Catholic conservatives, integrated this popular law into a new cantonal constitution for the first time. This was in the Canton of Valais, and it was then accepted in a popular voting.34 In the Canton Lucerne, however, the referendum was not yet enforceable in 1841. Troxler also understood this, and that is why he initially supported the Veto as proposed by the Commission in the constitutional text (predecessor of today’s optional referendum). For him, this was however only a temporary solution, and, as he explained with reference to his historical-philosophical approach, “a meagre remainder of the actual primordial order”35. But he had hopes that something greater would develop from such a small beginning:
Our oligarchic and ochlocratic council states had finally completely excluded the people from taking part in public affairs. People’s assemblies and citizens’ associations were considered rebellious, because only the gracious lords and superiors wanted to legislate and rule and judge the common people. Now the tide has turned, like never before. While the veto in democracy is a major and important step forward, it is actually only a negative thing. But even if it is still imperfectly organised itself, through use and practice it will become the positive thing that lies within it. It will gradually revive the original assemblies of the people, and these will not only serve to elect authorities, not merely to adopt or reject laws. The whole future of the people lies in the veto communities.36
For Troxler, the veto on the law was “the most important new institution”37 in the proposed constitutional text. Even after the debate in the Constitutional Council, this popular right remained part of the new constitution, which was clearly adopted by referendum in 1841. The canton of Lucerne was thus the third canton after St. Gallen and Baselland to introduce a veto on legislation and to have a lasting influence on further discussions on more direct democracy – not least as a result of Troxler’s interventions.
Conclusion
With his concept of democracy, Troxler made decisive contributions to the topics of the foundation of the nation state based on natural and thus human rights. On this basis, the state is not a machine for the purpose of rule, but an organism that has evolved and still develops further.38 This concept was incorporated not only in Troxler’s proposals on cantonal constitutional processes, but also on those at the federal level. Ten years before the foundation of the federal state, he wrote a “Draft of a Basic Law for the Swiss Confederation” (1838). What is remarkable is that Troxler anticipated the two-chamber system, among other things.39
Troxler saw politics as a practical natural law-discipline, and he stressed the importance of the principle of the public sphere: “The citizen must be able to convince himself that state authority is exercised and applied in accordance with the purpose and constitution of the state.”40 With his contribution to achieving freedom of the press in the Swiss cantons and the state as a whole, he also promoted the emergence of a critical public sphere that is indispensable for a democratic culture.
Popular sovereignty was to him the prime directive, and since the Helvetic Republic he consistently adhered to a concept of popular sovereignty, which he increasingly concretised and which finally made him an advocate of direct democracy:
“It has always been particularly dear to my heart to free the sovereignty of the people from the shackles and bonds into which every new rule has forced them, and to finally bring them into their own in spirit and truth in their relations with the state, the confederation and the Church.”41
Troxler was one of the first to consistently demand the equal and direct election of a Constitutional Council for constitutional amendments in Swiss cantons. After a certain period of time, the Constitutional Council would have to submit the prepared proposal to the population, and they would be given the opportunity to comment on it. Troxler studied popular wishes in several cantons and repeatedly encountered the demand for more co-determination. This was certainly one reason why he increasingly became an advocate of direct democracy.
According to Troxler, it would be fundamental that the Constitutional Council should then, if at all possible, incorporate the proposals from the population into the constitutional text. Finally, the revised constitutional text must be approved by referendum. Already in his “Philosophical Jurisprudence” he had explained with regard to popular participation:
The people to whom it is not granted to submit their ideas against laws and decrees or acts made by the regent, and which are adverse to them, are not free, and every state which denies its citizens the means to ask for justice, individually or together, is not a people’s state.42
Troxler emphasised the importance of education and training. For him, education was the supreme constitutional purpose. According to Troxler, the politician, philosopher and doctor always has a (popular) educational mission:
As a citizen of the community of Lucerne, I finally recognised my right and duty to make clear to the people its position as sovereign over all its constitutions and over all of its legislators, to bring the people to the feeling of its right, and since feeling without deed is only half a life, to guide the people to the possession and exercise of its right.43
Troxler saw the promotion and internalisation of the “feeling” of one’s own (human) rights, and thus also the prerequisite for demanding, defending and expanding these rights, as one of the most important tasks.
1 <link http: www.fidd.ch>www.fidd.ch
2 Roca, René. Bernhard Meyer und der liberale Katholizismus der Sonderbundszeit. Religion und Politik in Luzern (1830–1848). Bern 2002, S. 32f
3 Troxler, Ignaz Paul Vital. “Was verloren ist, was zu gewinnen“. Address to the Helvetian society, in: Rohr, Adolf (Hg.). Troxlerc(1780–1866). Second volume, S. 39–67, p. 45
4 p. 43f
5 p. 45
6 p. 47, 60
7 p. 517 p.. 51
8 p. 52
9 ebd.
10 p. 55
11 p. 57
12 p. 60
13 p. 49
14 p. 63
15 ebd.
16 Roca, René. Wenn die Volkssouveränität wirklich eine Wahrheit werden soll … Die schweizerische direkte Demokratie in Theorie und Praxis – Das Beispiel des Kantons Luzern, Zürich/Basel/Genf 2012, p. 94
17 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. Zweiter Band, S. 177–187, p. 182
18 ebd.
19 p. 181
20 p. 180
21 Roca, René. Bernhard Meyer und der liberale Katholizismus der Sonderbundszeit. Religion und Politik in Luzern (1830–1848). Bern 2002, p. 81–86
22 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. Zweiter Band, p. 477–496, hier p. 485
23 Troxler, Rechtslehre. p. 218f. Troxler’s view that men and women are equal and equitable would deserve a more in-depth investigation. He leaves behind rational natural law as well as the liberal rational law of Kant: “In marriage, as little as in nature, there is a reason for the supremacy or subordination of one spouse above or below the other.”
24 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. Zweiter Band, Bern 1989, p. 502–516, hier p. 506, 510
25 Troxler, Ignaz Paul Vital. Ein wahres Wort über das jetzige Vaterland, mit Rücksicht auf eine Schmähschrift namenloser Verläumder, 1839, in: Rohr, Troxler. Zweiter Band, p. 449–476, here p. 468
26 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. Zweiter Band, p. 477–496, hier p. 479
27 ibid., p. 480
28 ibid., p. 482
29 ibid., p. 481
30 ibid., p. 482
31 ibid., p. 484f
32 ibid., p. 485
33 ibid., p. 485f
34 Roca, René. (Hg.). Katholizismus und moderne Schweiz, Beiträge zur Erforschung der Demokratie. Band 1, Basel 2016, p. 81–94, here p. 27f
35 Troxler. Bemerkungen, p. 490
36 ibid.
37 ibid.
38 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, hier p. 36
39 Graber, Rolf. Wege zur direkten Demokratie in der Schweiz. Eine kommentierte Quellenauswahl von der Frühzeit bis 1874, Wien 2013, p. 410–417
40 Troxler. Rechtslehre, p. 166
41 Troxler. Volkssouveränität, p. 504
42 Troxler. Rechtslehre, p. 166
43 Troxler. Volkssouveränität, p. 506