Zaccaria Giacometti (1893–1970): “Democracy as the guardian of human rights”

Today, the Swiss model of democracy is in danger. The dynamic adoption of law in Framework Agreement 2.0 would devalue the referendum. Neutrality has practically been abolished, the EU’s free movement of persons takes precedence over the Federal Constitution, etc. Several popular initiatives are underway to stop this dismantling.
  The oft-quoted adage “History does not repeat itself, but it does have parallels” applies here. After the Second World War, it was uncertain how Swiss democracy would develop. As early as the 1930s, the Federal Council and Parliament prevented the referendum 91 times by rashly declaring Federal Decrees urgent. Then came the plenipotentiary regime during the Second World War. After that, the federal authorities struggled to relinquish their powers altogether. Only the popular initiative “Return to direct democracy” in 1949 brought relief. Zaccaria Giacometti, Professor of Constitutional Law and Rector of the University of Zurich, was one of the leading figures in the debates on the restoration of democracy at the time. In 1954, he gave the seminal lecture “Democracy as the guardian of human rights” at the foundation ceremony of the University of Zurich. In my lecture at the autumn talks of the Institut für Personale Humanwissenschaften und Gesellschaftsfragen (IPHG), I pay tribute to this event.
  With his striking sculptures, the artist Alberto Giacometti is probably the best-known representative of the Bregaglia family of artists. But there is another personality from this extended family who has left his mark on history: Zaccaria Giacometti who was a cousin of Alberto. He was a professor of constitutional law and rector of the University of Zurich. In 1954, he gave a widely acclaimed lecture at the foundation ceremony of the University of Zurich on the subject of “Democracy as the guardian of human rights”. This question is topical again today because democracy, and direct democracy in particular, is increasingly being called into question by certain circles. I am not only thinking of the dynamic adoption of law that the EU is planning for Switzerland. I am also thinking of the numerous recent wars in which democratic solutions have been deliberately sidelined. In the Yugoslavian wars, there was not a single referendum on nationality. Kosovo – a product of these wars – is still not at peace twenty years after the war. The situation is similar in Bosnia. In Ukraine, votes were held in Crimea and Donbass. But the votes, as clear as they were, are being pushed aside. Why doesn’t the voice of the people carry more weight? The right to self-determination is also part of international law. – The votes could have helped to avoid war. Zaccaria Giacometti lived through both world wars and the great economic crisis of the 1930s. He always emphasised – even during the war – that the rules of democracy should be observed. One key sentence from his lecture illustrates his view of humanity particularly clearly.
  “It stands to reason that the people and the people’s representatives, as the beneficiaries of civil liberties, carry the guarantee of human rights within them to a certain extent. [...] For the people, as the bearers of civil liberties, the office of guardian of human rights should be a natural one.”
  Zaccaria Giacometti believes that people, as social and rational beings, are capable of creating the order that corresponds to their nature. Why haven’t diplomacy and a cultivated democracy with referendums – which Giacometti strived for – long since found their place in politics? After all, the results of war policy are catastrophic and unbearable.
  The following fundamental legal, political and historical considerations show that human rights are best served by the people. Let me follow Professor Dr Zaccaria Giacometti, then Rector of the University of Zurich, through his lecture.
  He began with a historical review: Around 500 years before Christ, Greek philosophers began to develop the idea of natural law. In the Renaissance – almost 2000 years later – natural law was further developed in connection with Christianity – within the framework of Christian doctrine (Thomas Aquinas, School of Salamanca) and later after the Reformation also in Protestant countries (Hugo Grotius, Samuel Pufendorf, John Locke). Natural law became very important in the ideas of the Enlightenment, when it became the basis for the first democratic constitutions of the newly emerging nation states. Giacometti names the most impressive documents from this and more recent times.

The US Declaration
of Independance of 1776

“All men are by nature equally free and independent, and have certain inherent rights”, states the US Declaration of Independence of 1776. The US Constitution of 1789 specifies these freedoms in additional amendments: freedom of religion, freedom of expression, freedom of the press, freedom of assembly and the right to petition.

The 1789 Declaration of the Rights
of Man and of the Citizen in Paris

The guiding principle of the 1789 Declaration of the Rights of Man and of the Citizen and the battle cry of the French Revolution “Liberté, Egalité, Fraternité” went around the world. The most important points of the Declaration are: “Men are born and remain free and equal in rights” (Art. 1). “The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security and resistance to oppression” (Art. 2). These guiding principles and guiding ideas were incorporated into the republican constitutions in 1793 – the Constitution Girondine and the Constitution Montagnarde. In addition to civil liberties, both also contained elements of direct democracy – both the referendum and the people’s right of initiative. Due to the turmoil of the revolution, they were never applied.

The Universal Declaration of
Human Rights of the UN in 1948

After the horrors of the Second World War, the UN General Assembly adopted the Universal Declaration of Human Rights in 1948. The articles of this declaration set out human rights in much greater detail than previous declarations: personal freedom, freedom of religion, freedom of expression, freedom of assembly, the right to property, the right to education, the right to work and much more are listed in this comprehensive document.
  Today, human rights are included in the constitutions of all countries. But there are differences that are due to national characteristics, different cultures and political circumstances. The historical examples clearly show that it is not just a matter of enshrining human rights in a document and in national constitutions, but that the way in which human rights are enforced is just as important.
  Giacometti pointed out that some politicians and contemporaries would spontaneously deny the question of whether democracy can be the guardian of human rights – because history has shown that even democratically adopted human rights can quickly be overridden or even swept away by political events. For example, the Jacobins under Robespierre established a reign of terror in the first years after the French Revolution on the basis of emergency law, without the Declaration of Human Rights of 1789 and subsequently the constitution of the First Republic of 1793 being able to prevent this. Unfortunately, there are many such examples in history. Hitler also succeeded in overriding the human rights contained in the Weimar Constitution relatively easily and permanently by invoking emergency law (Emergency Decree and Enabling Act). How can this be prevented?
  The UN’s Universal Declaration of Human Rights of 1948 demands that human rights must be protected by the rule of law. Zaccaria Giacometti started at this point and gave the audience a brief introduction to jurisprudence: he divided law into two areas that are fundamentally different because they belong to different systems of norms – positive law and natural law.

Positive law

Positive law is written law. In Switzerland, it consists of the laws currently in force, i.e. the Federal Constitution, federal acts and ordinances. Subordinate to federal law is the law of the cantons, which stands above the decrees of the approximately 2,200 municipalities. Lawyers speak of a hierarchy of laws. As the constitutional court, the Federal Supreme Court reviews the cantonal decrees to ensure that they do not contradict federal law. Federal laws, on the other hand, cannot be reviewed by the Federal Supreme Court. The people exercise the highest level of control here with the referendum. In Germany and the USA, on the other hand, the Constitutional Court reviews federal laws and government policies for their constitutionality.

Natural law

Natural law, on the other hand, which underlies the various declarations of human rights, is derived from the nature or essence of human beings and is based on philosophical, religious and psychological convictions. Behind this is an image of man and the world – and therefore a part of the world view. Natural law establishes ethical demands on the state. According to Giacometti, it is “thought and felt law”, i.e. not law in the sense of enforceable norms.
  According to Giacometti, there are different approaches to natural law because it comes in different guises: as Catholic natural law (Thomas Aquinas), as Protestant natural law (Hugo Grotius, Samuel Pufendorf), as rationalist natural law (John Locke, Immanuel Kant, Rousseau, Montesquieu and many more), as liberal natural law (David Hume, John Stuart Mill). However, there is a common basis in the various schools of thought – the nature of man.
  Giacometti explains that the development of law is optimal when positive law is combined with natural law so that the two systems do not stand in opposition to each other.

“Can democracy
be the guardian of human rights?”

After these introductory remarks, Giacometti turns to the central question of who should protect and guarantee human rights so that natural law and human rights are actually enforced and practised. Can the legal system fulfil this task? – For Giacometti, the principle of the separation of powers is a cornerstone of democracy and human rights: state power should be divided into the executive (government), the legislature and the courts. These three branches of power inhibit and control each other, which prevents abuse of power and protects the civil liberties of citizens. In a direct or semi-direct democracy with referendum and popular initiative, the people are an important part of the legislature and the constitutional and legislative process alongside parliament. Giacometti explains: “The active citizenry, as a partial organ of the constitutional and legislative power, fulfils this inhibiting function vis-à-vis parliament and the administration.”
  Giacometti then explained how direct democracy saved Switzerland from dismantling democracy and significantly restricting civil liberties in the difficult period between the two world wars – as happened in most countries at the time. Numerous popular initiatives were submitted.

Federalism guarantees human rights

Giacometti cites federalism as another principle of constitutional law that safeguards human rights: by dividing state power between the cantons and the Confederation, federalism protects the individual freedom of citizens. A similar effect can also be observed in the cantons, where the communes have far-reaching autonomy with their own fiscal sovereignty and where citizens actively participate in communal affairs. The “people of the commune” themselves ensure the rights of freedom.
  Giacometti pointed out an important point in federalism: “The smaller the community, the more intensive the participation of the liberal-minded active citizens in the fulfilment of public tasks naturally appears.”

Can the people themselves
be the guardians of human rights? 

According to Giacometti, democracy offers the greatest opportunity for the realisation of civil liberties: “The people must be prepared for liberal democracy, they must be politically mature. A people appear ready for genuine, direct democracy when it fulfils the following conditions”:

a) The idea of freedom: “Firstly, the idea of freedom must be alive in the individual and in the people, and natural law under the rule of law must be effective not as a right, but as an ethical force.”

b) Political conviction: “Liberal values must prevail, but not as euphoric moods born of the moment or opportunistic inspirations, but as deep political convictions that permanently dominate the consciousness of the people and are supported by the driving forces of political life.”

c) Historical awareness: “The people must have a liberal tradition. Its liberal convictions must be rooted in such a tradition. Tradition, however, is historical consciousness, and liberal tradition is consequently liberal historical consciousness. Democracy possesses such a historical consciousness in the case that a liberal past continues to have an effect on it, i.e. that the previous generation has passed on to the living generation a treasure trove of liberal political ideas, views and experiences. [...] The poet’s words also apply here: ‘What you have inherited from your father, acquire it in order to possess it.’”

d) Political education: “The living generation must acquire this inherited treasure of liberal political insights and liberal political experience, indeed, fight for it through appropriate political education, testing and proving itself as a constitutional legislator and as a simple legislator of a genuine democracy.”

The referendum – a ‘great political
means of education’ (Giacometti)

In 1874, the Federal Constitution was revised with a fundamental innovation. If citizens did not agree with a federal law passed by parliament, they could demand a referendum with 30,000 signatures. That was revolutionary. The referendum was to become a pillar of the Swiss legal system. A little later, the right to a popular initiative was added. Since 1848, 672 referendums have been held at federal level, with 216 referendums on a bill and 234 referendums on a popular initiative to amend the constitution. There have also been numerous referendums in the cantons and countless in the municipalities. The figures are impressive. “Chaos” did not break out, as some had initially feared. Today, Switzerland is one of the most stable democracies. But there were some difficulties.

Back door to bypass the referendum

When the referendum against Federal Decrees was introduced in 1874, there was a problem. Anyone who read the constitutional article carefully, soon realised that there was a back door for parliament to avoid the referendum – the so-called urgent emergency law. Parliament could decide by a simple majority that the matter was urgent and that a referendum was not possible. Moreover, there was no definition of what “urgent” meant. Matters are almost always “urgent” in politics. When is urgency appropriate? Particularly in the difficult period between the two world wars, parliament very often used this back door to avoid a referendum. Far too often, Zaccaria Giacometti and like-minded people thought. That’s how we are destroying direct democracy! And they wanted to solve the problem.

An example 

In 1934, the federal government banned the opening of new department stores or new branches by emergency law. The ban came into force immediately and a referendum was not possible. The federal government wanted to protect the retail trade – the small and medium-sized shops. This measure was directed against Gottlieb Duttweiler, the founder of Migros. Duttweiler had begun to expand the Migros system across the whole country, threatening the existence of many retailers. The ban was repeatedly renewed and only lifted in 1946. “For heaven’s sake, that can’t be right. This is an offence against the freedom of trade and commerce. We are living in a free country”, Duttweiler probably exclaimed. Giacometti agreed with him, it’s not right. Economic crisis yes – but why shouldn’t we vote on measures, especially those that help the people to overcome the crisis? Duttweiler founded a political party, the Landesring der Unabhängigen (National Association of Independents), prepared a popular initiative and converted his public limited company into a co-operative by giving his employees and loyal customers share certificates worth 30 francs. Moreover, Duttweiler was not discouraged by the emergency law. He sent lorries as mobile sales outlets into the neighbourhoods and villages to provide the population with essentials at low prices. These mobile “shops” were still on the road until the 1980s. Today, Migros with its huge centres is the largest “retailer” in Switzerland.
  Between the two world wars Parliament prevented a referendum 151 times in this or similar ways – mostly for economic reasons. The people compensated for this restriction in part with popular initiatives. During this time, 21 popular initiatives were voted on and seven optional referendums were held against bills, some of which were submitted with over 300,000 signatures – ten times more than required.
  Nevertheless, Giacometti felt that direct democracy should not be circumvented in this way. Excessive emergency law is harmful. Giacometti and others thought about how the problem could be solved. Should emergency legislation be limited in time or should a qualified majority be required in parliament? These were open questions. There were several popular initiatives. There was no simple solution.

A constitutional court?

In 1939 – shortly before the Second World War – a group of professors proposed a popular initiative to establish a kind of constitutional court. Elected judges were to decide whether or not emergency law was justified in a particular case or situation. A referendum was held. The people voted no with a three-quarters majority, and all cantons were against it. The people, not judges, should be the guardians of freedom and human rights. Giacometti later made his position clear: “A judge above the constitution – that is an intolerable idea.” This was a fundamental shift in Switzerland’s legal system. To this day, Switzerland does not have a constitutional court for federal law – unlike most other countries. But what was to happen next?

Popular initiative
‘Return to direct democracy’

During the Second World War, the Federal Council was granted far-reaching powers by Parliament, some of which it retained even after the war. In 1949, the people voted in favour of the popular initiative “Return to direct democracy”, in which Zaccaria Giacometti had been involved in the background. Since then, the following rule has applied:
  Emergency legislation that comes into force immediately is still possible. But – if the constitution is violated, there must be a mandatory referendum within one year. If a law is violated, an optional referendum is possible within one year.
  Zaccaria Giacometti explains that this means the people also control freedom and human rights in the case of urgent emergency law.

The ‘Corona’ referendums

“Can that work?”, some will wonder. Yes – we experienced it a few years ago during the coronavirus pandemic. When the number of cases rose in 2020, Parliament passed an urgent federal law – the Covid-19 Act, which came into force immediately and gave the Federal Council far-reaching powers. I will just mention a few key words: compulsory vaccination, certificates, masks, quarantine, home office, home-schooling, etc. I don’t need to remind you of this.
  Opposition to the increasingly radical restrictions on personal freedom and liberties in general soon emerged – especially from central Switzerland. I remember the group of “Friends of the Constitution” from the canton of Schwyz, who stood up with cowbells against the massive restriction of personal freedom. But there were also doctors who questioned the measures from a medical point of view. Every time the Federal Council and parliament tightened the Covid-19 Act and ordered further, urgent measures (which came into force immediately), the opponents launched a referendum and a vote was held after a few weeks: on 13 June 2021 for the first time, on 28 November 2021 for the second time and finally, on 18 June 2023, voters voted on the respective amendments for a third time. Each time, around 60 per cent of voters voted in favour of the Federal Council’s policy. Some will think: Why was there a vote? – Surely this was a matter for doctors and experts? The three referendums have strengthened the Federal Council’s position and calmed the heated atmosphere somewhat.
  These three votes in Switzerland were unique in the world. Nowhere else has the population been able to vote on the health policy of their authorities. Zaccaria Giacometti paved the way for this some seventy years ago. Even in dire emergency situations such as a pandemic, politicians involve the people – in the spirit of Giacometti – to protect freedom and human rights. I have counted fifteen emergency referendums since 1949. In all of them, the people voted in favour and backed the government. Another example: when the Bretton Woods system collapsed in 1972, a veritable rain of dollars poured down on Switzerland. The Federal Council was given the authority, together with the Swiss National Bank, to immediately take urgent defensive measures to protect the currency. In the referendum that followed, almost 90 per cent voted in favour.
  Whether such referendums will still be possible in the health sector is questionable. The WHO has recently issued international health regulations and an international pandemic treaty is on the table, both of which are to take precedence over national law. In the future, the WHO and no longer the national authorities are to order urgent measures. These certainly do not provide for a referendum.

Democracy as a learning process

What do I want to show with this presentation? Democracy is a learning process that is not so easy – even for parliament and the government. This summer, the Federal Council and Parliament prepared the reform of the pension funds – a complicated story. Some people called for a referendum. On 22 September, “we the people” said no – and the work starts all over again. In a few weeks’ time, the referendum on standardised financing in the healthcare system will follow – no less complex. Zaccaria Giacometti described the referendum as a “great political educational tool”.
  In the first decades after 1874, the Federal Council and Parliament did not yet fully trust the people. Politicians therefore repeatedly resorted to emergency law and avoided a referendum – which is incomprehensible today. Zaccaria Giacometti and like-minded people thought this was far too often the case and put a stop to this bad habit with the popular initiative “Return to direct democracy”.

The Federal Constitution
as a permanent construction site

The further learning process is only possible if Switzerland’s sovereignty is preserved. Today, there are tendencies to restrict direct democracy again. Parliament, for example, tends not to implement popular initiatives. According to parliament, the free movement of persons within the EU has priority and takes precedence over the Federal Constitution.
  The Federal Supreme Court has contributed to this paradigm shift without being legitimised by the constitution or the people. In October 2012, it placed non-mandatory international law above the Federal Constitution for the first time and justified this as follows: “If there is a genuine conflict of norms between federal and international law, Switzerland’s obligations under international law take precedence. This even applies to agreements that are not based on human rights or fundamental rights.” This is new and considerably narrows the legal framework for direct democracy, and judges would be given a task that they did not have before. Critics are right to speak of a silent coup d’état.
  We can only guess what awaits Switzerland if the dynamic adoption of legislation, as planned by the EU for Switzerland, materialises. The referendum would lose its character as a “great means of political education”, as Giacometti described it. The EU would impose sanctions or equalisation measures if it did not like the result of a referendum. Outrageous – Giacometti would be turning in his grave! Swiss voters would no longer be the “guardians of human rights”.

Problematic judgements of
the European Court of Human Rights

The Council of Europe was founded in 1949 and adopted the European Declaration of Human Rights (ECHR) in 1950. In 1959, the European Court of Human Rights (ECtHR) was established in Strasbourg – but only with limited powers. Giacometti was sceptical. It was not until 1998 that today’s Court was established as a full court, which intervenes considerably in the legal systems of individual countries. Switzerland ratified the ECHR in 1974 – without a referendum, because the Federal Council and Parliament assumed that human rights were already included in the Federal Constitution.
  Recent examples show that Zaccaria Giacometti’s fears were justified. The ECtHR often plays politics with its judgements and thus weakens the nation state. The judges have decided whether a crucifix may hang in Italian classrooms, whether there is a human right to a minaret, whether Muslim schoolgirls must take part in swimming lessons and so on. The ECtHR’s latest ruling against Switzerland concerns the complaint by the ‘Climate Senior Women’. The women demanded before the Federal Court that the federal authorities do more to achieve the climate targets. The measures already initiated are insufficient. Their human right to life and their right to respect for private and family life had been violated, they argued. When the Federal Supreme Court did not respond, they filed an application with the European Court of Human Rights. The court ruled in favour of the applicants.
  The Federal Council and Parliament protested for the first time. The Federal Council was of the opinion that Switzerland fulfilled the climate policy requirements of the judgement. In a statement, the Council of States and the National Council called the panel of judges to order and demanded that the court should limit itself to protecting fundamental rights and not engage in political activism. – My wife Marianne Wüthrich also clearly expressed her unease in her Current Concerns article of 21 May 2024: “What does climate protection have to do with the right of older women to respect for their private and family life?”, she asked. “People with common sense agree: nothing.”
  Such judgements, which are even intended to have an effect beyond the countries concerned, weaken democracy in individual countries and distract from the actual essence of human rights. Above all, they distract from the fact that the most basic human rights are being blatantly violated in many parts of the world today – especially in crisis regions and as a result of the intolerable war policies that are also being waged by countries that have ratified the ECHR. – What does Professor Zaccaria Giacometti, former Rector of the University of Zurich, teach us in his lecture?

The closing words in the speech
by the great constitutional lawyer
Zaccaria Giacometti in 1954 are
a warning for today’s generation:

“In Switzerland, the people act directly as guardians of human rights in a comprehensive manner, and our country is consequently characterised by a harmony of wide-ranging individual and political freedom. This harmony is conditioned by a liberal atmosphere based on political values, on ancient liberal tradition and on political experience and trial and error. Indeed, Switzerland is a unique case of democracy, where the people as legislators are themselves the guardians of human rights, and thus provides the most beautiful living proof of the possibility of the existence of a genuine, liberal democratic state.”
  Zaccaria Giacometti’s presentation ended with the well-known words of the Zurich poet Gottfried Keller:

“The country is just right,
Is not too good and not too bad,
Is not too big and not too small,
To be a free man inside!”                   •

Sources:

“Die Demokratie als Hüterin der Menschenrechte“ (Democracy as the guardian of human rights). Speech by the Rector of the University of Zurich, Prof. Dr Zaccaria Giacometti, delivered at the 121^st Foundation Ceremony of the University of Zurich on 29 April 1954 (Annual Report 1953/54).
Linder, Wolf; Bolliger, Christian; Rielle, Yvan. Handbuch der eidgenössischen Volksabstimmungen 1848–2007. (Manual of the federal people’s votes 1848–2007) Berne 2010
Kölz, Alfred. Neuere Schweizerische Verfassungsgeschichte. Ihre Grundlinien in Bund und Kantonen seit 1848 (Modern Swiss Constitutional History. Its main lines in the Confederation and Cantons since 1848) – with source books. Berne 2004
Wüthrich, Werner. Wirtschaft und direkte Demokratie in der Schweiz (Economy and direct democracy in Switzerland). Zurich 2020