Constitutional Law

-Order and Organization (how the state is constitued)

-Limits of Power and Guarantees of Freedom (delimits the powers of he state)

-Creation and Direction (basic substantive goals of the state)

-Evidence of a continuous, uninterrupted and coherent practice

-"an opinion of law" of the law applying institutions and individuals

-a lacuna in the written law

1. Grammatical Approach

2. Systematic Approach

3. Historic Approach

4. Teleological Approach

5. Pluralism of Methods

6. Interpretation in Conformity with the Consitution

7. Interpretation in Conformity with International Law

Ordniary use of language

Starting point of every interpretation

Systematic context with other legal provisions within the legal text

Estbilsh the meaning of the norm at the time of creation.

Subjective historical analysis: historical intent of the drafters

Objective historical analysis: meaning that was generally attributed to the privision at the time of its enactment

Purpose of a norm

What did the drafters aim to achieve with this specific provision?

Combine all approaches

i. Prinicple of the Rechtsstaat;

ii. Principle of federalism;

iii. Priniciple of democracy;

iv. Principle of social justice.

Limite the power of the state by law in order to protect individual from the arbitrary exercise of authority.

(1) State administration should be based on law

(2) Refulation by formal law should be required

(3) All administrative actions should be subject to judicial review

Formal Elements (Prinicple of Legality, Division of Powers, Independent Judiciary)

Substantive Elements (Fundamental Rights, Social Guarantees)

(1) absolute supremacy and predominacne of law as opposed to abritrary power

(2) equal subjection of all to the ordinary law as administered by the law courts

(3) protection of the citizens' freedoms by the ordinary law

all legal rules not enacted in the form of a constitutional amendment or a federal statute.

Federal constitution -> Federal statute -> Federal ordniance

Federal law -> Cantonal law -> Communal law

Political concept used to describe the delicate balance of unity and diversity in a given entity.

- The federation guarantees the cantonal constitutions

-The federation protects the constitutional order of the cantons

-The federation huarantees the existene and territory of the cantons

1. Based on what provisions?

2. Does the canton have the competency in this area?

3. If yes, what exactly says the relevant provision?

4. Is any interpretation necessary - what terms do we have to interpret?

5. What is the result of the interpretation?

6. What is the asnwer to the question?

1. Read exactly

2. Find out literal sense of the provision in question

3. Check the common linguistic usage

4. Remember: wordings of the three official languages are equivalent

1. Hierarchy of norms

2. Position of the specific legal rule in question within a specific act/statute

3. Position of the act in question with regard to other acts (same or higher level)

4. Conformity with Constitution or International Law

1. Find out intent of the framers (subjective historical analysis)

2. Check meaning which was generally atributed to the provision at the time of its enactment (objective historical analysis)

1. Which purpose of the provision shall prevail? Why?

2. Is there any conection with the historical approach or with the contemporary approach?

- comprehensive competency (e.g. aviation)

- fragmentary competency (e.g. taxes)

- framework competency (e.g. spatial planning)

- promotion competency (e.g. heritage)

- Subsequently (e.g. Radio / TV)

- Originally (e.g. right of coinage)

- Parallel (e.g. universities)

- Subsequently derog. (e.g. taxes)

- Originally derogating

- Parallel effect (e.g. sport)

- Subsequently derog. (e.g. spatial planning)

- Originally derogating

- Parallel effect

- Subsequently derog.

- Originally derogating

- Parallel effect (e.g. culture heritage)

Did the federation enact laws with regard to the topic in question?

Cantoanl acts are void anyway

Both federal and cantons may enact provisions

1. Step: Is there a case of funamental rights?

   - Which is the legal basis of the affected right?

   - What is the scope of application of the affected rights?

   - Who are the beneficiaries of the affected right?

   - Who is the addressee of the affected right?

2. Step: Is the restriction of the fundamental rights admissble?

   - Is there a legal basis Art. 36 (1) ?

   - Is there a public interest Art. 36 (2) ?

   - Is it in line with proportionality Art. 36 (3) ?

   - Does the core content remain untouched Art. 36 (4) ?

Everything that is a "federal matter". The federal government decides on that matter.

The federation is only authorized to regulate a fragment, i.e. ceratin part or a subject matter (e.g. taxes)