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The right to work – impact on the Swiss Federal Constituion

The significance of direct democracy to ensure social peace (part 6)

by Dr rer. publ. Werner Wüthrich

A brief resume at the beginning:
Part 1 of this series of articles (Current Concerns 14 of 2 June 2015) showed how tensions between the workers and their organisations and the political leadership in Switzerland had increasingly intensified during the last years of the First World War and how finally the general strike was proclaimed in November 1918. After this national crisis many referendums contributed to establish social peace.
Part 2 (Current Concerns 15/16 of 16 June 2015) advanced to the roots of our economic constitution and stressed the significance of direct democracy for a peaceful economic development.
Part 3 (Current Concerns 17 of 30 June 2015) showed how, after the First World War, the Federal Council and Parliament circumvented the people’s rights in the economic field via emergency law too often, and how the population resisted.
Part 4 (Current Concerns 19 of 29 July 2015) dealt with the 1937 peace agreement between the associations of employees and employers in the metal industry and its significance for Switzerland.
Part 5 (Current Concerns 23 of 23 September 2015) outlined the significance of people’s rights as an instrument for crisis management and the preservation of social peace during the severe economic depression of the 1930s.
(Preliminary note: detailed information on the numerous polls and popular initiatives, please visit admin.ch => “Chronologie Volksinitiativen” (oder Volksabstimmungen)).

The right to work is part of a decent life and – considered from the point of view of  natural law – results from the right to existence. In 1948 this right was included as a human right in the Universal Declaration of Human Rights of the UN: “Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.” (Art. 23)
Even more binding is the UN Convention of 19 December 1966 on the economic, social and cultural human rights. So Art. 2, para 1 obliges the state that, “Nothing in this article shall authorize States Parties […] to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.”

Historical facts

In the history of mankind the right to work was by no means guaranteed. In the ancient world and the Middle Ages, it was slave labor or servitude which oppressed people’s lives. Their work was associated with coercion and lawlessness. In the free cities in the Middle Ages the right to work was often dependent on membership in a guild or a professional community. The phenomenon of unemployment – as we know it today – was born in the time of the Industrial Revolution, which began in the 18th century and changed society profoundly, everywhere. In the stormy but often unstable economic development of the last two centuries, smaller and even larger parts of the population lost their jobs again and again. Today, unemployment is a serious problem in some countries and has become an ongoing issue in politics.

Basics

In an economic order dominated by the private sector, the state cannot directly assign work. However, it may replace the unemployed people’s loss of earnings at least partially, in order to support them and help them find a job. The state can generally protect the work by adopting regulations, for example on working hours, the protection of health or against unfair dismissal. The state may decide on job creation programs. And it can generally focus its economic policy on full employment, while economists and politicians often disagreeing on how to achieve that. Understood in that way, the right to work is less a legally enforceable claim than an overall social responsibility that should be enshrined in the Constitution.
For the first time this happened in France. On 24 June 1793, the French National Assembly adopted not only the commercial and economic freedom (Art. 17) as a fundamental right in the Constitution but also the duty of assistance (dette sacré) for those, who lost their work and were in need (Art. 21 ). The first articles of this impressive Constitution read as follows.
Art.1    Le but de la société est le Bonheur commun. – Le gouvernement est institué pour garantir à l’homme la jouissance de ses droits naturels et imprescriptibles.
Art.    2 Ces droits sont l’égalité, la liberté, la sûreté, la propriété. (…)
Art.    3 Tous les hommes sont égaux par la nature et devant la loi. (...)
Art.    17. Nul genre de travail, de culture, de commerce, ne peut être interdit à l’industrie des citoyens.
Art.    21. Les secours publics sont une dette sacré. La société doit la subsistence aux citoyens malheureux, soit en leur procurant du travail, soit en assurance les moyens d`exister à ceux qui sont hors d’état de travailler.

This early constitutional work makes it clear that economy-related fundamental rights are there not only to give individuals the freedom to engage in economic activity. They shall contribute to the common good (Bonheur commun) – the ultimate objective of society (But de la société). Further articles even contained approaches to direct democracy (referendum law). This constitution dating at the time of the French Revolution was far ahead of its time and, unfortunately, did not remain ineffect for long.  However, it was apt, in Switzerland’s regeneration time after 1830, to inspire some politicians to rewrite the Constitution in their cantons (cf. Part 2 of the series of articles of 16 June 2015).

The right to work in the teachings of socialism and communism

Socialists and Communists have often understood or do still understand the right to work differently. They are of the opinion that the right to work can ultimately not be really implemented in a private economic order. The capitalist economic order should be abolished as a whole and work should  be reorganized. The right to work is thus part of a new model of society. Much has been written about that, many ideas were developed and practical experiments were made. Here are some examples:

Charles Fourier

Early socialists like Charles Fourier (1772–1837) did not only have the economy in mind, but suggested new forms of life and society. Groups of about 1,500 people could jointly organize their lives by living in residential cooperatives and working together in productive and consumer cooperatives and supply themselves. Everyone has his place, so capital and labor would  be in harmonious relationship. His scholar Victor Considerant (1808–1893) also made similar proposals. There were a number of practical tests. The Zurich Early Socialist Karl Bürkli (1823–1901), for example, travelled to Texas with a group of emigrants. They bought 10 sqkm of land and established there – virtually on a greenfield site – their ‘utopia’, a community in Fourier’s sense. However, they were unsuccessful in the long term due to difficulties – which also occurred in the interpersonal relations – which made their enthusiasm vanish. Bürkli returned to Zurich and helped to build up the co-op association there, while he committed himself successfully to the cooperative system and to direct democracy. April 18 1869 was a very special day for him. With a turnout of over 90 percent, the Zurich people said Yes to a revolutionary constitution, which contained not only far-reaching initiative rights and referendum rights but in particular encouraged the cooperative movement, as well:
Art. 23: The State encourages and facilitates the development of self-help-based cooperatives. In the way of legislation, the state adopts the necessary provisions to protect workers.
It was a signal to other cantons and the Confederation which – as the name suggests – is politically  built on the cooperative idea. Nowadays, the cooperative movement is promoted at all political levels. The Bürkli-Platz on Lake Zurich is reminiscent of this Swiss Early Socialist’s work.

Louis Blanc

The Early Socialist Louis Blanc (1811-1882) suggested that the state providesjobs for the unemployed. In 1839 he published his reform ideas in his paper “L’organisation de travail”. After the February Revolution of 1848 he became Minister for Employment of the provisional government of France and was given the opportunity to put his ideas into practice. The Socialist-dominated parliament inserted the right to work as a fundamental right in the new constitution. Based on this, Louis Blanc had a variety of national workshops be built, where 100,000 Frenchmen were to find work. Soon, there occured some difficulties. Often the manufactured products did not meet the consumers’ wishes. Often it was unclear to them what they should produce at all, or the workshops competed with private enterprises which made life difficult for them. The project failed after a relatively short time. The Socialists lost the next election, and serious riots occured in Paris with several thousand deaths. The French parliament removed the misunderstood right to work from the Constitution and replaced it by the obligation to support the unemployed.

Karl Marx

Karl Marx was far more radical. The problem of unemployment could – as Marx claimed – only be solved as a whole by the working class and its leaders if the economic and social order was completely transformed. They would have to abolish class antagonisms by leading the class struggle, taking over power in a revolution and nationalizing the factories and institutions of the manufacturing sector. After that the authorities would centrally and systematically plan production, labor and economic processes. The right to work would thus become a plan to work and for the individual it would become an obligation to work.
The weaknesses of this economic and social model are known today. The main error lies probably in the concept of man (“Menschenbild”). “Existence determines consciousness”, is a central tenet of Marx. In the field of work this means: The new conditions of production, in which there are no class distinctions, would bring about a new humann being. Marx said: Man would be liberated “of religion, property and the selfishness of the trade”, and it would create a “new man” who replaced the man “as he goes”. Finally the state would gradually wither away. - Marxism and its implementation was to cause even greater social tensions than  Louis Blanc’s experiment in 1848. In the 20th century, about one third of mankind was forced into such an order more or less involuntarily.
How was the hotly debated right to work implemented in  direct-democratically constituted Switzerland? It does not come as a surprise that it was subject of popular initiatives several times. It is worthwhile to look at these in more detail.

Federal popular initiative “right to work” of 1893

The Swiss workers’ movement was ideologically influenced by various schools of thought. So the one side wanted to make the liberal economic order more social, others wanted to rebuild it entirely. Not much time passed until the first popular initiative was launched. In 1893 Albert Steck, president of the Social Democratic Party of Switzerland, announced the popular initiative “Right to work”. It was a pioneering act in two ways: It was the first popular initiative, which was launched after this popular law had been included in the Federal Constitution in 1891. And it was the first popular initiative of the newly founded Social Democratic Party of Switzerland SPS. Steck spoke out against the class struggle, stressing that he was not aiming at the overthrow of the existing institutional framework. The initiative only required the “possible, i.e. what was practicable without changing the basics of our present economic order”. Steck prevailed over the revolutionary-minded comrades in his party, leaving the liberal core of the economic constitution untouched. However, he suggested numerous additions and alterations – for example: reduction of working hours, public employment proof (i.e. establishment of public employment services), measures for protection against unfair dismissal, sufficient support for the unemployed and a guarantee of the right to be active in unions. Furthermore, the work in the factories and in state institutions should be democratically organized.
The initiative was clearly rejected by the people with almost 80 percent no-votes on 3 June 1894. The opposition came from two sides: Civil groups argued that the right to work was not practicable in a private sector economy and the proposed changes would gradually lead to socialism. Parts of the workers resisted reforms of this kind, because they did not want to improve the “system” but change it fundamentally. Marxism, which at that time was focused on class struggle and the conquest of power, made it difficult to have a calm, democratic debate.

Impact on the development of law

Most of the measures contained in the Socialist Party’s popular initiative became established over the years through Swiss legislation, without ever threatening the private sector economic order. However, the development proceeded in small steps and in the context of economic development. The popular initiative of 1894 was far ahead of its time. However, it became the starting point for later social reforms. Let me mention only a few key words here: As early as in 1863 on the occasion of the Landsgemeinde (community assembly) in the Canton of Glarus 6,000 citizens had gathered under the open sky and decided on the then most advanced factory Act in Europe. In 1876 voters throughout Switzerland said Yes to a federal factory law, which substantially took over the provisions from the Canton of Glarus. The Glarus factory inspector, Fridolin Schuler, was appointed federal factory inspector. In 1914 the Factory Act was revised and later repeatedly supplemented and expanded until it was expanded in 1963 to become a comprehensive labor law for all companies (not only for factories).
In the field of unemployment insurance, the steps were small: The communes and cantons were responsible for unemployment benefits. An insurance against unemployment could be effected voluntarily. It was initially performed mainly by the unions – and later by the communes. In 1919, parliament decided on federal contributions for unemployment compensation and in 1924 subsidies for unemployment insurance. In the thirties, about 30 percent of the workers were insured. A federal law on unemployment, however, has only existed since 1951. In 1976 the voters agreed with considerable 68 per cent Yes-votes on the compulsory unemployment insurance, as we know it today.
The popular initiative “right to work” launched by the Social Democrats  in 1894 had raised the politicians awareness and also caused the population to become more aware of  social issues and accept the need to make corrections in the free enterprise economy.

Right to work in the economic crisis of the thirties

During the Great Depression of the thirties unemployment had become a worldwide mass phenomenon. In the “Popular initiative to combat the economic crisis”, launched by the unions in 1935, the right to work was a core concern. The initiative text read as follows: The Confederation ensures the “planned procurement of labor and expedient order of the work certificate”. The popular initiative was indeed rejected by 56 per cent No-votes (see Part 5 of this series of articles on 23 September 2015.), however, the demands for public job creation schemes could not e silenced.
In the meantime, he Swiss Federal Council had indeed taken some measures. So it established a center for job creation and accelerated the construction of SBB railway routes, border plants and Alpine roads. In 1934 liberal circles exerted some pressure with the popular initiative “Extension of alpine roads and access roads”. In the economic field, the Federal Council supported the textile, the watch industry, some banks and agriculture. The strongly grown government commitment during these years was expressed in the rise of so-called state quota. The share of government expenditure in the gross domestic product had doubled from about 10 percent before the First World War to 20 per cent in 1939 (today 35 percent).
The Federal Council – despite  the crisis – handled its finances as a “good householder” and tried to balance its budget without any debt. This was almost always successful. Another comparison: Before the First World War, the federal government had no debt, but in 1939, they had grown to 1.5 billion Swiss francs (today they are  more than 100 billion). This “mini-mountain of debt” was really modest, even if one takes into account that the monetary value was significantly higher then.
The “austerity policy” of the Federal Council was however criticized mainly by those circles that were oriented towards the theories of the English economist John Maynard Keynes, who determined the economic policy especially in the US. Hismotto was: No new taxes – but   debt-financed overspending should boost demand and create jobs. Switzerland “was wired” differently: in 1932 the Swiss Federation of Trade Unions and the Federative Association of Employees launched the popular initiative “For an extraordinary federal crisis tax” in order to fill the “holes” in the state budget and prevent a reduction of wages for employees. The Federal Council took up the issue and decided on a Crisis Contribution in a 1934 emergency law, a temporary and progressive income tax which was a significant burden to higher incomes. In 1938 the people thus backed the Federal Council and very clearly consented to the crisis tax at the ballot box with 72 per cent yes-votes.

Closing ranks before the Second World War

For the Social Democrats, the efforts of the authorities to create jobs were by far not sufficient.  In 1937 they submitted the popular initiative “National employment program” (which they wanted to have financed with National Bank reserves)with 280,000 signatures. Now the state government accomlished a feat. The times had changed. Hitler had invaded Austria, and the threat from the north had become obvious. In the spring of 1938, Federal Councillor Rudolf Minger delivered a statement in the National Defence Commission, “To date, an isolated attack by a major power against us was unthinkable, today we have at least to consider this possible risk and remember that we can only rely on ourselves in the future.” The cooperation of Federal Council, Parliament and the people was now working excellently. The government combined the concerns of the popular initiative with national defense and requested a total of 415 million francs: 200 million were intended for the purchase of fighter aircraft and the rest for job creation schemes. The people agreed with impressive 70 percent Yes-votes on 4 June 1939. The Social Democrats were well aware of the serious situation and withdrew their popular initiative on the same day. A few weeks later the Second World War began.

Social democratic popular Initiative of 1943 “economic reform and labor rights”

Even during the war, popular initiatives took place repeatedly. When in 1943, after the Battle of Stalingrad, the turn of the Second World War loomed, some politicians already thought about the post-war period. The Socialist Party in Switzerland was of the opinion that the “old world was going to collapse” and the socialist ideas would be given fresh impetus after the defeat of Nazism. It passed the program “New Switzerland”. The “liberation from the domination of capital is to secure prosperity and culture for the entire Swiss people.” The state should establish a fair economic system, systematically and increasingly plan the economic processes, transfer large corporations into public ownership, withdraw the ground and the houses from speculation, guarantee the right to work and many more. (see 100 Jahre Sozialdemokratische Partei der Schweiz, 1988, p. 55, p. 346)
At the same time the SP launched a popular initiative entitled “Economic reform and labor rights” and submitted it with more than 150,000 signatures. While in 1894 the SP’s popular initiative “right to work” wanted to turn the liberal economic constitution into a more social one, this initiative aimed at putting the economic order in the Federal Constitution on new grounds. The guarantee of freedom of trade and commerce in Article 31 was to be repealed and replaced by a governmental control of the economy.

Art. 31 para 1

  1. The economy is a matter of the whole people.
  2. The capital shall be devoted to the work, the general economic rise and the people’s welfare.
  3. The federal government is empowered to order the measures that are necessary for this purpose in the structure and organization of national economy.
  4. The livelihood of the citizens and their families must be protected.
  5. The right to work and fair wages must be guaranteed.
  6. […]

Popular initiatives are always a piece of party history. In 1894 the Social Democrats were still a weak party that had a single representative in the National Council, Jakob Vogelsanger of Zurich. They had submitted their first popular initiative “right to work” in 1883 with 53,000 signatures – only slightly more than required. In 1943 – sixty years later – the  situation was quite different. The SP had become the strongest voter party that collected multiples of required signatures for their popular initiatives. With a level of up to 30 percent voter support , the party was at its peak regarding popularity (now 19 percent). In 1943 Ernst Nobs was elected the first Social Democratic Councillor to the Federal Council – a long overdue event.
The new popular initiative of the SP on the right to work was a socialist counter-proposal to the economic articles in the Federal Constitution, which Parliament had revised shortly before and which the people should vote upon after the war. The draft of parliament adhered to the freedom of trade and provided for many opportunities, however, to deviate thereof in different areas. The Federal Council rejected the popular initiative. The argument as that the state could not give sufficient worthwhile work for the individual citizen without organizing economic life comprehensively.
Popular initiative “right to work”by the “Landesring der Unabhängigen” (National Ring of Independents)
in 1943
However, the SP was not alone with the plan to counter the revised economic articles of Parliament with a counterproposal. The Ring of Independents launched, almost simultaneously with the SP, a popular initiative with nearly the same title “right to work”.
However, the Ring of Independents, led by Gottlieb Duttweiler, pursued a very different objective than that of the Social Democrats. It also considered the reduction in unemployment to be of top priority in the communes, the cantons and the federal government. This could be achieved, however, not by means of more but of fewer laws and more economic freedom. The new economy acts contained too many do’s and don’ts. In order to reconcile the capital with the work, the “old” economic liberalism should not be corrected by a multitude of new state rules but combined with a more ethical attitude and social responsibility. Shortly before, Duttweiler had converted his Migros from a plc into a cooperative and started to establish his own cooperative culture. (see more in Part 5 of the series of articles, on 23 Sep 2015).
For the unemployed, he intended the following: If someone lost his job, he should have the opportunity to get back to work within a short time. In the meantime, he would receive compensation for loss of income – combined with further training and retraining courses. This was a compensation by society and an outflow of the right to work and not just a supportive measure. These ideas were later used to form the basis of today’s unemployment insurance.
Another popular initiative on the right to work, also launched in 1943, must not be forgotten. The Peasant Home Movement handed in the initiative to “protect soil and work by preventing speculation”. The young farmers demanded that only those, who themselves worked on the agricultural soil and managed it as a basis for their existence should be allowed to purchase it. This initiative provided the impetus for a new peasant land law.
The numerous popular initiatives that had included the right to work in one way or another since 1894, represent important phases in the history of Switzerland, in which the population struggled to find a solution for the social issues and a socially responsible economic policy.

Federal Constitution with a new guiding principle

What happened next? Almost simultaneously with the three popular initiatives of 1943, whose topic had been the right to work, two other popular initiatives were submitted, which also pursued social objectives. One of them related to a new orientation of the pensions and the other to a new family policy.
So after the war, there were numerous referendums on fundamental economic and social concerns of the population within a short period of time. Three proposals for the reform of economic articles in the Federal Constitution opposed each other, which significantly differed in their cores: In its draft, Parliament adhered to the freedom of trade and commerce as an individual fundamental right (and as a guiding principle for the economic order), but intended numerous possibilities to depart from the rule. The Social Democrats however eliminated the economic freedom from the Constitution and replaced it by the provision that the state should direct the economy. The Ring of Independents with Gottlieb Duttweiler saw this differently. They did not demand less but more economic freedom. The “old” liberalism should not be corrected with more laws but with a higher incidence of ethics and responsibility. Added to this, the people would decide on a new peasant land law and a new agricultural policy. This was not enough: no less important was the vote on a new family policy and a new pension scheme.
Within a short time after the war, the people voted in numerous polls on the fundamentals of the social market economy in Switzerland as we know it today. There was to be a total revision of the Federal Constitution on a small scale – a dawn of a new era (in which we live today). The people followed the deveopment with keen interest. More on this in the 7th and final part of this series of articles.     •

Sources:
Alfred Kölz, Neuere schweizerische Verfassungsgeschichte (mit Quellenbuch), Berne 2004; 100 Jahre Sozialdemokratische Partei, Zurich, 1988; Häner Isabelle, Nachdenken über den demokratischen Staat und seine Geschichte, Beiträge für Alfred Kölz, Zurich 2003; W. Linder, C. Bolliger, Y. Rielle, Handbuch der eidgenössischen Volksabstimmungen 1848–2007, 2010; Bruno Hofer, Volksinitiativen der Schweiz, 2012; Kriele Martin, Die demokratische Weltrevolution. Warum sich die Freiheit durchsetzen wird, Munich 1987 and some more.