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FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
I. Introduction
1 Art. 6 of the Swiss Federal Constitution (Cst.) is found in the General Provisions of the Constitution (Title 1). It immediately precedes Title 2, which deals with fundamental rights, citizenship and social goals.
2 Article 6 Cst. is considered by the majority of legal scholars to be a programmatic article. It provides information on an important dimension of the concept of the individual (Menschenbild) that underpins the constitutional text. As far as case law is concerned, the Federal Court of Justice and the Federal Administrative Court make sporadic reference to art. 6 Cst. This reference is often used as a reminder of the importance of individual responsibility, particularly in the field of social insurance.
3 This commentary deals in order with the genesis, functions and legal scope of the article, then with its two components in the order in which they appear: individual responsibility, then social responsibility. Generally speaking, art. 6 Cst. contains concepts that are difficult to interpret. For example, the concept of responsibility and its relationship to individual freedom immediately raises philosophical questions. To address them, this commentary adopts a philosophy of law approach, drawing on resources from political philosophy. These resources are intended to highlight the interpretative richness of the concept of responsibility, and to underscore the normative questions it opens up. As pointed out by Häberle (infra, no. 21), the potential of art. 6 Cst. must be realized by the legislator and legal scholars, for example by using, as here, a philosophy of law approach.
4 As a common thread, this commentary attempts to show how the concept of responsibility and the related concept of individual freedom determine the interpretation of the content of art. 6 Cst. The latter appears as a central norm of a liberal constitution, a norm whose interpretation crystallizes reflections on the individual in society, his fundamental rights and society's expectations. Rather than a position for or against liberalism, the interpretation of art. 6 Cst. brings us back to the question of the type of liberalism presupposed in the constitutional order.
II. Genesis
5 Art. 6 Cst. emerged in its present form during parliamentary deliberations on the total revision of the Federal Constitution. Parliamentarians discussed both the idea of individual responsibility for oneself, for others and for society, and the idea of fundamental duties or duties of citizenship. As explained below (infra, N. 12), parliamentarians eventually rejected the idea of fundamental duties organized in the form of a catalog. What remained were the concepts of individual responsibility and contribution to the fulfilment of the tasks of the state and society (social responsibility), which today make up art. 6 Cst.
6 The Federal Constitution of 1874 contained a general article on "civic duty". This article had already given rise to critical debate. At the start of the constitutional revision process, the proposal for a model constitution drawn up by the Federal Department of Justice and Police (FDJP) in 1985 contained a series of fundamental duties. This catalog appears immediately after the catalog of fundamental rights. The Federal Council's first proposal (1996) does not contain equivalent articles. The Federal Council abandoned this catalog of fundamental duties for two main reasons: the difficulty of choosing which duties deserve to be elevated to constitutional status, and the problems associated with sanctions in the event of non-compliance. In its Message, the Federal Council writes that the absence of a catalog of fundamental duties "does not mean, however, that the inhabitants of this country have no duties towards the community" (...). He points out that certain fundamental duties "retain their full meaning" (for example, the obligations to attend school, perform military service and pay taxes), even if they are not listed in a catalog.
7 A reading of the parliamentary debates highlights the shift from fundamental duties to the idea of individual and social responsibility. In the course of these debates, parliamentarians make unsystematic use of the concepts of fundamental duties (Grundpflichten), civic duties (Bürgerpflichten) and individual and social responsibility. An analysis of the parliamentary proceedings reveals three relevant considerations to explain the final wording of art. 6 Cst.
8 Firstly, the appeal to individual responsibility appears in the context of a critical reflection on the contours of the social state. The CN Commission's rapporteur at the time, future Federal Councillor Samuel Schmid (UDC), observed that social benefits were being extended. In his view, the State had neither the vocation nor the means to solve all the problems of the Swiss population. The idea of duties and/or individual responsibility is presented as a necessary corrective.
9 Secondly, the Federal Council's 1996 draft Constitution formalizes the catalog of fundamental rights and formulates a series of social goals. Faced with this development, some members of parliament wondered whether a logic of reciprocity did not require the mention of fundamental duties. The idea seemed to be in the air at the time, as demonstrated by the Interaction Council initiative spearheaded by former German Chancellor Helmut Schmidt. In 1997, together with 25 heads of government, he submitted the Universal Declaration of Human Responsibilities to UN Secretary-General Kofi Annan. As the introductory commentary to this declaration explains, the idea of reciprocity between rights and duties is central: "Recognition of the equal and inalienable rights of all the people requires a foundation of freedom, justice and peace - but this also demands that rights and responsibilities be given equal importance to establish an ethical base so that all men and women can live peacefully together and fulfil their potential".
10 Thirdly, the debate on responsibility deals with the expectations placed on individuals within a social group. The content of art. 6 Cst. and, in particular, the dimension of social responsibility, is presented in parliamentary debates as a response to the reality of an atomized, individualistic society. Responsibility is about caring for other members of society. State Councillor Hans Danioth (CVP), the author of one of the proposals that would become the idea of social responsibility in Art. 6 of the Swiss Constitution, speaks of a civic duty (Bürgerpflicht). He defines it as an ethical standard that serves as a reminder of the obligation to commit oneself to the community. His proposal was initially classified as a political right, before being moved during subsequent debates.
11 During these debates, Federal Councillor Arnold Koller (CVP) became the spokesman for the Federal Council's arguments. In particular, he pointed out that the concept of the human being that underpins the Constitution already includes the idea of responsibility and duties: if the human being has the capacity for autonomy in his choices, then he bears the responsibility that goes with it. According to Koller, this idea underlies the great constitutional projects of the 19th century. He remains open to a more direct evocation of the duties of individuals, as evidenced by his reference to John F. Kennedy's famous appeal, delivered during his inaugural speech in 1961 ("And so, my fellow Americans: ask not what your country can do for you - ask what you can do for your country."). On a semantic level, Koller's speech evokes the duties of citizens (Bürgerpflichten) and duties in general (Pflichten) in the context of the discussion of an article on individual responsibility.
12 At the end of the parliamentary debates, the concept of individual and social responsibility prevailed over the concept of fundamental or civic duties. The Federal Assembly decided against a catalog of duties because of the difficulties of integrating them into the structure of the new Constitution, but also because of a certain repetition of duties mentioned elsewhere in the constitutional text, such as the obligation to serve or the obligation to attend compulsory school. Nor did the explicit reference to a general duty to respect the legal order find a political majority at the end of the parliamentary proceedings.
13 Beyond the historical dimension of the parliamentary debates, an important conceptual distinction between fundamental duties and individual responsibility runs through the debates. One of the points of debate between these two concepts concerns the ability to translate the constitutional norm into concrete legal obligations. According to constitutional scholar Andreas Kley, a fundamental duty has four constituent elements: 1) a duty of a legal nature, 2) enshrined in a constitution, 3) of fundamental importance to the existence of the state, 4) which a person must fulfill towards the state. According to Kley, while responsibility is primarily programmatic and provides normative guidance of a general scope, fundamental duties must in turn be clearly concretized in the form of legal obligations. We will return to this question when considering the legal scope of art. 6 Cst (infra, n. 21).
14 Academic writers have identified several sources of inspiration for the debates surrounding art. 6 of the new Constitution. The Weimar Constitution and the Italian Constitution are mentioned for their explicit reference to the duties of individuals. Similarly, the preambles to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights clearly mention this idea of responsibility, recalling that "the individual has duties to other individuals and to the community to which he belongs, and is under a duty to strive for the promotion and observance of the rights recognized in the present Covenant". In Switzerland, according to Chatton, the Constitution of the Canton of Berne (1993) has certainly played a decisive role. Its art. 8, placed just before the catalog of fundamental rights, sets out in general terms the duties (Pflichten) of persons residing in the canton. According to para. 1, everyone is obliged to fulfill the duties incumbent upon them by virtue of the Constitution and the legislation in conformity therewith. Para. 2 states that everyone is responsible for themselves, for other human beings and for ensuring that future generations have the right to determine their own future. The latest fully revised cantonal constitution, that of the canton of Geneva (2012), contains an article entitled "individual responsibility" (art. 13 Cst./GE), para. 1 covers a general duty ("everyone must respect the legal order") and para. 2 defines individual and social responsibility. The draft of the new Valais cantonal constitution also contains a similar article entitled "Individual duties and responsibilities" (art. 10). Paragraph 1 refers to a general duty to fulfill the duties imposed by the Constitution and legislation, while paragraph 2 refers to the responsibilities of all individuals towards themselves, the community and present and future generations. Para. 3 calls on everyone to ensure the appropriate use of public goods, services and natural resources.
III. Commentary
15 As mentioned in the introduction (supra, no. 3), interpreting art. 6 Cst. involves considering questions of legal theory and political philosophy relating to the concepts of responsibility and freedom. This commentary deals in order with the functions and legal scope of the article, as well as with references to art. 6 Cst. in certain decisions of the Federal Court and the Federal Administrative Court (A.), and then with the two components of art. 6 Cst., i.e. individual responsibility and social responsibility (B.).
A. Functions and legal scope
16 Art. 6 Cst. comes at the end of Title 1 on general provisions. It is followed by Title 2 on fundamental rights and social goals. This location indicates that the normative ambition of art. 6 is of a general nature. As a general provision, it is intended to inform the entire constitutional text. Art. 6 Cst. is considered to be primarily programmatic. For the majority of legal scholars, its legal scope is limited to providing an aid to the interpretation of other constitutional norms. For the purposes of further analysis, it is possible to distinguish three general functions of art. 6 Cst.
1. Three functions
17 Firstly, art. 6 Cst. is often used in an attempt to grasp the conception of the individual (Menschenbild) that underlies the constitutional text. This attempt at hermeneutic construction builds on the preamble (notably the awareness of responsibility towards Creation and the duty to assume responsibility towards future generations) and refines this vision by referring to the two components of art. 6 Cst. (individual responsibility and social responsibility). In combination with other, more specific norms, the interpretation of art. 6 Cst. thus contributes to the emergence of as coherent a conception as possible of the individual to whom the Constitution is addressed. This conception of the individual in society can then be used to interpret other constitutional provisions.
18 Secondly, and directly linked to this conception of the individual in society, art. 6 Cst. can be used as a contextual norm for the various duties identifiable in other constitutional provisions. For example, every man of Swiss nationality is subject to a civic duty (military service, civilian service or payment of a tax, art. 59 para. 1 Cst.) and all children must receive basic education (art. 62 para. 2 Cst.). In terms of social responsibility, the Constitution also provides for mechanisms that can be read in the light of art. 6, such as old-age insurance (art. 112 para. 2 Cst.), the principle of occupational pension provision (art. 113 para. 2 Cst.) and unemployment insurance for salaried employees (art. 114 para. 2 Cst.). Häberle and Winistörfer also link art. 6 Cst. to the rules of a liberal market economy, such as the postulate of individual responsibility. In this context, Häberle sees social responsibility as a reminder of the individual's integration into a social group and a rejection of what he calls "Ökonomismus", i.e. an absolutization of the pursuit of individual profit.
19 Thirdly, parliamentary history and the position of art. 6 Cst. in the constitutional architecture remind us of its function as a critical contextualization of fundamental rights and social goals. As in the Constitution of the Canton of Berne, the explicit mention of individual and social responsibility precedes the catalog of fundamental rights. Art. 6 Cst. seems to act as a counterweight to the positive obligations that are increasingly placed on the state. The principle of subsidiarity, which derives from individual responsibility (infra, n. 38), is thus symbolically underlined by the order of the articles. Art. 6 Cst. comes first to underline the responsibility of individuals. Thus, art. 41 para. 1 Cst. concerning social goals clearly states that "The Confederation and the Cantons undertake, in addition to individual responsibility and private initiative, to (...)" (italics added).
20 These three functions shed further light on the question of the addressees of art. 6 Cst. This is the only provision of Title 1 (General Provisions) directly addressed to individuals (using the phrase "any person"). The expression "any person" includes all natural persons, not just Swiss citizens. In addition, following an analysis of the language versions and the preparatory work, Chatton defends the hypothesis that legal entities should, a priori, be included in the circle of addressees of the standard. In his view, the positive and negative impact that legal entities can have on their natural, cultural, social and economic environment justifies applying a duty of responsibility to them by analogy.
21 This question of addressees should not be confused with the legal scope of art. 6 Cst. (see infra, n. 21). By way of example, Biaggini considers natural persons to be the addressees in the foreground (vordergründig) of art. 6 Cst. In his view, however, the main addressee is the legislator. But the reference to the legislator (and more broadly to the public authorities) seems to derive from the need to determine the legal scope, and not directly from the question of the addressees. This distinction makes it clearer that art. 6 Cst. is addressed to everyone, but that it also has legal effects on the legislator and, more broadly, on the public authorities.
2. Legal scope
22 The legal scope of art. 6 Cst. is considered modest by the majority of legal scholars. Generally speaking, the article is described as essentially a moral appeal intended as a symbolic reminder of the community's expectations of individuals, but largely devoid of tangible legal effects. Biaggini reads art. 6 Cst. as a constitutional call to emphasize the ethics of individual responsibility, complementing other norms (e.g. Preamble Cst., art. 41 para. 1 Cst.). Nevertheless, Häberle sees an interesting normative potential to be developed through the interpretation of other constitutional norms or through legislative concretization. In his view, the potential of art. 6 Cst. only needs to be concretized by the legislator and the doctrine, for example by resorting to a comparative approach.
23 Generally speaking, Chatton sees in these cautious interpretations a general difficulty in apprehending programmatic norms. In his view, the moral content of the norm, the absence of sanctions and the absence of rights and obligations that can be deduced from art. 6 Cst. must not transform this norm into an a-legal provision. Art. 6 Cst. has an a minima legal scope as an aid to the interpretation of open-ended provisions. Moreover, according to Chatton, the norm is to be considered when interpreting the conditions for restricting a fundamental right, specifically in the case of a positive obligation, where the question would be how to strike a balance between the state's obligation to help an individual and the individual's expectation of being able to provide for himself by his own means. However, art. 6 Cst. cannot be used to create from scratch conditions that are not provided for by law and/or other constitutional provisions.
3. Case law
24 The Federal Supreme Court (FSC) has only sporadically dealt with art. 6 of the Swiss Constitution. Social insurance law is particularly concerned by the few references to this article. In 2005, in a case concerning compulsory health insurance, the Federal Court ruled that Art. 6 of the Swiss Constitution had "no particular normative scope, but essentially a declamatory and signal value". The TF links the principle of subsidiarity to art. 6 Cst. Taking social assistance as an example, the fundamental principle of subsidiarity is "the expression of the obligation of co-responsibility and solidarity towards the community, an obligation enshrined in art. 6 Cst. The existence of a right to social assistance must be considered in the light of this principle of subsidiarity". This reference to art. 6 Cst. tends to demonstrate that the Federal Court considers this norm to be a constitutional principle that can be invoked by the individual in this context and therefore, according to Chatton, partially justiciable. In another welfare case (support for a Swiss family emigrating to New Zealand with a disabled child), the TAF found that art. 6 Cst. contained a fundamental ethical principle of higher rank. According to this principle, it is obligatory for a person in a situation of distress to try to get out of it on their own, using the means at their disposal.
25 The Federal Court and the Federal Administrative Court refer to art. 6 Cst. in the context of qualifying the efforts that can legitimately be expected of individuals. In a case dealing with the provision of SUVA-related information by means of a notice board on staff premises, the Court interpreted the provisions in force by mobilizing art. 6 Cst. as an expression of expectations in terms of individual responsibility. On the basis of art. 6 Cst. the Court develops its vision of an individual of legal age (mündig), capable of informing himself/herself about the insurance to be taken out before a stay abroad. In a similar constellation, the Federal Court considers that disability insurance bodies are not obliged to explain how the various branches of social insurance work and how they interact. In the TF's view, this is the responsibility of each individual insured person. According to the hypothesis defended below (infra, N. 35), this level of effort should be integrated into a contextual approach to the skills needed to take responsibility for oneself.
26 With regard to naturalization, the TAF has used art. 6 Cst. to contextualize certain conditions. In a case concerning the applicant's good tax reputation, the TAF refers to art. 6 Cst. as one of the relevant sources for ensuring that an individual honors his or her obligations to the state. This case also illustrates the combination of specific obligations (e.g. payment of taxes) with art. 6 Cst. Similarly, in the context of a family reunification case, the TAF interpreted the requirement of financial independence with reference to art. 6 Cst. In so doing, the Court qualified what appeared to be exigible by reference to the expectation of individual responsibility formulated in art. 6 Cst.
27 In criminal matters, art. 6 Cst. was referred to in an appeal concerning the costs of proceedings in a case of cross-border cigarette smuggling. The lower court had argued that the appellant's reprehensible conduct, in particular his alleged breach of his individual duty of responsibility to the State (Art. 6 Cst.), had given rise to additional costs, and that the costs of the proceedings should be borne by the appellant, even though he had been acquitted. In its decision, the Federal Court emphasized that the legislator had not intended this article to be used to establish an offence.
28 In a case concerning the unauthorized exercise of a financial services activity, the Federal Administrative Court (TAF) considers the individual responsibility of art. 6 Cst. to justify the fact that the person who has exercised his activities illegally must accept (zumutbar) the disclosure of relevant information on these activities, in order to restore the confidence of other players in the industry. Assuming the consequences of freely chosen behavior is at the heart of the TAF's interpretation of this chosen responsibility. Thus, the State does not have to conceal information in order to help this person.
B. First component: individual responsibility
29 The first component of art. 6 Cst. deals with individual responsibility: "Everyone is responsible for himself (...)". This component concerns each person's responsibility towards himself. Liberal thinking is built around the assumption that the individual is free, able to choose and revise his or her life choices in the light of the values and objectives he or she considers relevant. As the above-mentioned cases show, the question of responsibility arises as a correlate of the question of freedom. Interpreting the notion of responsibility in art. 6 Cst. therefore requires an interpretation of the notion of individual freedom. Given the magnitude of this task, the main aim of this commentary is to illustrate the need for coherence between the dimensions of freedom and individual responsibility. When constructing a "Menschenbild", constitutional exegesis must aim for this coherence. With this objective in mind, we focus on two points: the question of the general definition of individual freedom, and the question of the competences required to exercise this freedom. We shall see that these two points have an effect on the notion of responsibility in art. 6 Cst.
1. The definition of freedom
30 Firstly, the way in which individual freedom is defined has important consequences for the concept of individual responsibility. Two conceptions of freedom can be used for illustrative purposes. On the one hand, freedom can be defined as largely independent of the human group in which the individual finds himself. By way of analogy, we can think of the conception of freedom of an individual on a solitary island (e.g. Robinson Crusoe). Robinson is free in a way that disregards other human beings. There are no limits to his freedom of choice. Any limitation (e.g. by law or the state) is a priori perceived as a loss of freedom. This conception inspires a certain vision of the social contract, where several Robinsons come together and decide to delegate part of their freedom to an authority, in order to ensure, for example, their security (see Thomas Hobbes' Leviathan, for example).
31 On the other hand, individual freedom can be defined relationally, by anchoring the person in a human group. The person is free in the context of interactions with other humans and an environment. The individual is never alone; not to see him or her as part of a human group leaves in the shadows a reflection on the conditions and threats to freedom (see infra, N. 42). For proponents of this relational vision, the existence of a legal framework is not a priori a threat to freedom (although it can become one), but rather its primary condition.
32 Each of these two conceptions of freedom, outlined here in broad strokes, leads to a different concept of individual responsibility. In a first, minimal sense, "every person is responsible for himself" can mean the individual's obligation to assume responsibility for his choices and their consequences. This minimal definition resembles a reflection of imputability, prohibiting above all any attempt to "pass the buck" to others (my free choice => my responsibility). In the case of the unauthorized exercise of a financial services activity mentioned above (supra, N. 27), the person who committed the fault is responsible and must, as such, accept the consequences of his actions. They cannot pass the buck to others. The TAF therefore considers that the person responsible must accept the disclosure of information concerning his or her fault, and that he or she must accept having to rebuild his or her reputation.
33 However, this minimal approach is not enough. Being responsible for oneself goes further than a simple logic of imputability to the free person. In a relational conception of law, the first component of art. 6 Cst. must be interpreted as a requirement for each person to identify the consequences of his or her choices. To impose a constitutional requirement of responsibility towards oneself is tantamount to demanding that each person, at the very least, take account of others.
34 But taking others into account (without any obligation to behave in a specific way) is still not enough. Art. 6 Cst. can therefore be understood as a call to master the negative consequences of one's choices for others. In this sense, being responsible for oneself means above all ensuring that one does not become a source of negative consequences (broadly defined) for one's environment. In this respect, art. 12 Cst. concerning the right to obtain help in situations of distress clearly stipulates that a person may be supported if he or she "is not in a position to provide for his or her own maintenance". This condition reflects the requirement for the person to, first and foremost, seek to avoid recourse to public assistance (a negative consequence on public finances). The above-mentioned case law on naturalization or family reunification raises exactly the same question: given an individual who is free and responsible for himself, what absence of negative effects (e.g. a social cost) or what positive contribution is the community entitled to expect and demand?
35 Interpreted in a relational way, the self-responsibility of art. 6 Cst. thus consists in presuming that each individual has the competence to control his or her impact on the environment. However, this presumption immediately raises two major questions: how can we ensure that individuals are competent to be free, and therefore responsible for themselves (infra N. 35)? And what is to be done in situations where, despite attempts to retain control, a person's actions nevertheless have negative effects on others? This question will be addressed in the Social Responsibility component (N. 47).
2. The skills needed to exercise freedom
36 Secondly, the question of the skills needed to exercise freedom, and thus self-responsibility, is central to the concept advocated by art. 6 Cst. Unless we start from the idea that freedom is acquired at birth and develops without intervention (a conception often associated with Robinson Crusoe-style freedom), it has to be said that freedom requires a set of skills. The most paradigmatic example is certainly basic education (art. 19 and 62 Cst.). Without these basic skills, an individual cannot be said to be free in the sense of the relational conception and, consequently, cannot fully exercise his or her responsibility in the sense required by art. 6 Cst.
37 In addition to basic skills, we need to consider other elements of this competence to take responsibility for oneself, such as social, physiological and other contextual factors. If it's easier to be responsible for oneself when one is young, wealthy and healthy, then the demand for responsibility should be accompanied by a commitment to combating the barriers to freedom and the competence to be responsible. This is particularly true of the social determinants that can be modified through public policy. Expressed in the context of a demand for equality and the fight against discrimination, some of these determinants are mentioned in art. 8 al. 2 Cst. Moreover, this reflection should be read in conjunction with the requirement for equality of opportunity (art. 2 para. 3 Cst.).
38 The question is more difficult for the few physiological determinants (e.g. genetic) that cannot be reduced to social determinants (directly at least). In fact, the first component of art. 6 Cst. has no equivalent in the concept of "according to one's strength", which is found in the second component (infra, n. 59). This concept has the merit of reminding us that we are not all equal when it comes to social responsibility. The argument proposed here would be to recognize the same limit for self-responsibility: we are not equal when it comes to the capacity to be responsible for ourselves. The jurisprudence referred to above (supra, N. 23) can thus be read in the light of this (in)equality with regard to the capacity to be responsible for oneself. This observation should be particularly relevant to questions of enforceability (Zumutbarkeit). When art. 6 Cst. is mentioned in the context of the efforts required of a mother suffering from health problems to provide for her relatives, the requirement of responsibility for oneself must be interpreted contextually. The competences enabling freedom and responsibility in the specific case of the person and his or her situation must be mobilized to interpret the level of exigibility in the light of art. 6 Cst.
3. Relationship with the principle of subsidiarity
39 Art. 6 Cst. is often used in the context of a discussion on the principle of subsidiarity. Even if doctrine seems to be largely in favor of the subsidiarity thesis induced by art. 6 Cst. it is nevertheless important to distinguish two levels of analysis.
40 A caveat before proceeding: the dimension of subsidiarity deriving from the primacy of responsibility for oneself must not be confused with the institutional subsidiarity of art. 5a Cst. On the relationship between art. 5a Cst. and art. 6 Cst., Gächter and Renold-Burch note that art. 5a Cst. is to be understood as a norm of competences within the federal state, while art. 6 Cst. deals with relations between individuals, state and society. The subsidiarity mentioned in art. 41 para. 1 Cst. is closer to art. 6 Cst.
41 At a first level of analysis, art. 6 Cst. certainly establishes a general subsidiarity for state action against individuals. Individual responsibility seems to take precedence over state action, which intervenes only in a subsidiary capacity. At a second level, and this is a point often overlooked in commentaries on this constitutional provision, the powers necessary for freedom and responsibility presuppose action by the public authorities. As explained above, one is not born free and responsible, but becomes so through the acquisition of certain skills, on the one hand, and the elimination of certain constraining/limiting factors, on the other.
42 This second link with subsidiarity then comprises several stages, which it is important to distinguish, as they may be subject to differentiated criticism. A) The individual's responsibility for himself is primary. B) Not all individuals are equal in their capacity to be responsible. C) A process of equalization of the capacity to be responsible for oneself must be put in place, and a contextual approach must be adopted, capable of apprehending the real capacity of individuals before judging the exigibility of certain behaviors. D) The question arises as to who is responsible for driving this equalization process. Who is responsible for helping individuals become responsible for themselves? The State (public authorities), civil society (associations) or even individuals (e.g. relatives) can be identified as potential responsible parties. E) Assuming that the state bears at least part of this responsibility, it must act through basic education and the prevention of certain social determinants (e.g. by combating discrimination in accordance with art. 8 Cst.) in order to guarantee the greatest possible equality of opportunity (art. 2 para. 3 Cst.).
43 If this argument is accepted, we can then consider that the principle of subsidiarity (first level) requires and presupposes state action on the conditions of freedom and responsibility (second level, conditions of possibility and equalization of the capacity to be responsible for oneself). For example, a new type of normative link can be established between the right to basic education (art. 19 Cst.), compulsory education (art. 62 Cst.) and art. 6 Cst. Implementation of art. 19 Cst. and art. 62 Cst. can be seen as a precondition for recourse to art. 6 Cst. If education is no longer compulsory and free of charge, individuals see their capacity for freedom and responsibility drastically reduced, and the idea of the primacy of individual responsibility becomes more difficult to defend. The same type of conditionality can be seen in the contextual approach to exigibility mentioned above (infra, N. 37). In a particular situation, such as naturalization cases, it is important to judge whether the individual is in a position to be responsible for himself/herself, and this requires taking into account both the personal trajectory and the life context (i.e. social structures) of the individual.
4. The specific case of insurance
44 An interesting question arises in the context of the negative effects that a choice made by one person has on others. The main difficulty is not so much the direct and immediate negative effect and its consequences (e.g. murder), but rather the indirect and diffuse effect through the institutions of solidarity put in place (e.g. the impact of a behavior on the costs of compulsory health insurance). The relevance of art. 6 Cst. in the case of compulsory social insurance is therefore particularly important. When it comes to healthcare, for example, the free and responsible choices made by individuals can have a negative impact, particularly in financial terms, on the community of solidarity. According to the relational conception outlined above, the state obliges individuals to protect themselves and others from some of the negative externalities their behavior provokes. Two cases can be distinguished, depending on the object of the responsibility.
45 Firstly, if an individual engages in a particularly dangerous activity (called "reckless undertaking") for himself, such as base-jumping, he may be obliged to take out special insurance to cover his health costs (to avoid the community paying for his choice). Secondly, if an individual threatens to have a negative impact on third parties, he or she can also be forced to take out third-party liability insurance, as is the case for car drivers. Here, insurance fulfils the role of self-responsibility for an individual's ability to cause damage to others. Against the backdrop of the Covid pandemic, Riemer-Kafka calls on the authorities to consider extending compulsory occupational pension, unemployment and accident insurance to the self-employed. In her view, the experience of the pandemic demonstrated the inability of individuals to respond to certain emergencies, and the need for the state to intervene by mobilizing public funds. By analogy with base-jump, this extension of obligation would force independents to protect themselves, and thus guarantee their ability to be responsible for themselves.
46 One of the open normative questions surrounding art. 6 Cst. therefore concerns the qualification of the conditions under which the State must and/or can intervene to establish an obligation for individuals to protect themselves (the example of self-employed people and base-jumpers) and to protect others from their choices (the example of car drivers). From a relational perspective, the state then forces individuals to assume responsibility for themselves; it compels them to "take charge". Art. 6 Cst. cannot be used to answer this question, since it is precisely the qualification of its first part that is at stake.
47 It is essential not to confuse the societal dimension of individual responsibility (the first component of art. 6 Cst.) with the second component of art. 6 Cst. This second component clearly refers to the expectations placed on all individuals in terms of their contribution to the tasks of the state and society, over and above the requirement to be responsible for oneself.
C. Second component: social responsibility
48 The second component of art. 6 Cst. deals with social responsibility: "Everyone (...) contributes according to his or her strength to the fulfilment of the tasks of the state and society." Generally speaking, the links between the two components of art. 6 Cst. depend largely on the conception of freedom and responsibility defended. From a relational perspective, being responsible for oneself implies preventing a negative impact on others and thus, in a way, already contributing to the tasks of the state. However, the second component of art. 6 Cst. goes further than the prevention by individuals of the negative effects of their actions. It encompasses situations that the individual has not helped to bring about, but in which he or she has a responsibility to act. As explained below, the doctrine treats this dimension of responsibility with the concept of solidarity. We shall also see that the explicit mention of "society" as the place where social responsibility is realized is important, and contributes to the constitutionalization of the notion of (civil) society (infra, N. 56).
1. Areas of contribution arising from social responsibility
49 The general requirement of social responsibility in art. 6 Cst. concerns the individual's contribution to the fulfilment of the tasks of the state and society. This contribution can be defined in more or less demanding terms. At the very least, we can define it as the duty of each individual to respect his or her legal obligations, thus returning to the idea of a fundamental duty of general scope. The contribution of individuals is then limited to respecting the law. As mentioned above in the discussion of the Federal Council's arguments, the argument suffers from a certain circularity (a legal obligation to respect the law) (supra, N. 12). At the other extreme, helping to fulfil the tasks of the state and society can almost become synonymous with fulfilling those very tasks. This kind of maximalist interpretation is hardly compatible with a liberal constitution and a pluralist society.
50 How can we find a practicable path between these two extremes? It seems appropriate to distinguish between the types of tasks where the contribution of the individual can legitimately be expected to support the state and society, and the level of requirement of the contribution. We'll look at the level of demand below, when we discuss the concept of "according to one's strengths" (infra, N. 59).
51 The identification of types of task can be achieved through an interpretation of other constitutional norms that allow us to apprehend the dimensions of this social responsibility. Chatton identifies four dimensions of this social responsibility, based in particular on a reading of the preamble to the Constitution: a responsibility towards Creation, a spirit of solidarity and openness to the world, a responsibility towards future generations and a responsibility of social solidarity towards the weakest and most deprived. Some of these elements are also to be found in art. 40 para. 2 of the Swiss Constitution, dedicated to the rights and duties of the Swiss abroad. This article mentions (without making a clear distinction between rights and duties) the exercise of political rights at federal level, the performance of military and alternative service, assistance to people in need and social insurance. Taken together, these provisions make it possible to identify the types of tasks in which the social responsibility of individuals is particularly involved.
52 However, the range of possible tasks is still very broad. To refine the analysis, we can attempt a foray into moral theory. From a consequentialist perspective, social responsibility should be particularly marked where A) needs are greatest and most urgent, and B) where, collectively, individuals are in a position to bring about significant change (hence the use of the term "contribute"). In short, we would define the domains of art. 6 Cst. by posing the question of the greatest possible utility of individuals' contributions.
53 The major difficulty remains the risk of the State instrumentalizing its residents. The state would demand a commitment from individuals and, in addition, determine the priority areas in which they should engage. Both dimensions present a tension with the idea of individual freedom and pluralism. It is worth pointing out here that the requirement for contribution formulated in this second component could relate to the conditions of freedom and responsibility of the first component. A possible constellation would be that of encouraging people (either privately or as part of a company) to integrate disadvantaged people into economic activity, thereby strengthening their ability to be free and responsible for themselves.
54 The question of political responsibility arises in this context of setting priorities. Art. 6 Cst. can be read as a call to participate politically (vote/elect), but also as a call to contribute to the tasks of the state and society through politics. In a militia system, it makes sense for people to be called upon to contribute to the smooth running of institutions. The current crisis in communal democracy, in particular the difficulty of finding candidates for elected office, is often approached from the angle of the social responsibility of citizens. Art. 6 Cst. could thus be understood as a call to political commitment, which would then be one of the tasks to which individuals are invited to contribute. It is important to note, however, that the Federal Constitution does not contain an explicit obligation to participate in politics, unlike, for example, the Schaffhausen Constitution with regard to participation in votes and elections.
2. The distinction between state and society
55 The second component of art. 6 Cst. distinguishes between the state and society ("the fulfilment of the tasks of the state and society"). According to the majority doctrine, this distinction does not appear to be central and is intended, above all, to adopt the most inclusive perspective possible. According to Chatton, taken here as an example of the majority doctrine, the "diversification as well as complexification of tasks and interactions" argue in favor of the absence of a clear distinction between state and society in this article. There are, however, two arguments against this reading. Indeed, the explicit mention of state and society suggests that the constituent wished to make a distinction.
56 Firstly, the idea of social responsibility (the requirement for individuals to contribute to the fulfilment of tasks) does not appear in the same context if we are talking about tasks carried out by the state or by (civil) society. In the context of state action, the social responsibility of individuals is expressed in certain specific ways, for example the idea of compliance with legal, fiscal or military obligations. Individuals are not expected to work alongside members of the cantonal and federal administration to help them carry out their duties. This state-centric reading brings social responsibility closer to the idea of fundamental duties. The above-mentioned case concerning compliance with tax obligations as a condition of naturalization (in the light of art. 6 Cst.) illustrates this rapprochement between social responsibility and the duty to respect obligations laid down by the legal system. The challenge here is to maintain a distinction between social responsibility and obligations that have already been identified (e.g. tax obligations). This is not the case in a corporate context, such as that of associations. In this context, art. 6 Cst. calls on individuals to contribute to the life of society through involvement outside state structures.
57 Secondly, the explicit mention of society in art. 6 Cst. helps to establish the independent existence of civil society, as opposed to the state. As Besson explains in his analysis of the Fribourg Constitution, civil society is a relational concept, a conveyor belt: "In short, and in very general terms, civil society encompasses all social and voluntary relations that are neither the responsibility of the state or politics, nor of the market or the economy (bourgeois society), nor of the family or the private sphere". The Federal Constitution mentions the word "society" only three times (art. 6, 65 (statistics) and 118b (human research) Cst. - occurrences of the public limited company are not considered here). Art. 6 Cst. gives an explicit constitutional existence to this "society" and its importance as a place of realization and receptacle of social responsibility.
58 In short, the requirement formulated in art. 6 Cst. should be interpreted in a circumscribed way for the contribution to state tasks (type of tasks). It is above all a call to contribute in certain institutionalized ways, for example through civic engagement. In the context of society's tasks, the call to social responsibility can take more inventive forms.
59 In both domains (state and society), the level of demand placed on individuals can vary. In a maximalist reading, each individual appears responsible in the context of the state (institutionalized and minimal obligations, almost similar to fundamental duties) and in that of society (obligations more diverse in their form and more open in the level of requirement). As mentioned above, the danger of an over-demanding state is considerable. For reasons of respect for individual freedom and plurality of opinion, the Constitution should not require individuals to become either suppletives of the State, or serfs of associative life.
3. Depending on strengths
60 Faced with the danger of a potentially over-demanding state in the face of individuals themselves in very different situations, art. 6 Cst. mentions that each person is called upon to assume social responsibility "according to his or her strengths". This notion introduces an essential parameter in determining the extent of individuals' social responsibility. They do not all have to commit themselves in the same way or according to the same requirements, but according to their own strengths.
61 Art. 6 Cst. therefore introduces a principle of equity, the main concept of which must be defined, namely that of "strengths" (Kräfte, forze). Generally speaking, the concept of strengths seems to be used here as a synonym for capabilities. The individual is expected to commit according to his or her abilities, which may be physical, psychological, intellectual, financial or related to a phase of life (e.g. retirement).
62 In this context, the capable individual - i.e., the one with strength - is contrasted with the one who cannot contribute to the accomplishment of tasks. Häberle links this concept to the adage "to the impossible, no one is bound". If the individual is incapacitated, there is no justification for expecting him or her to make the commitment provided for in art. 6 Cst. This question of fairness is present in many political debates. For example, the question of flexibilizing the retirement age in relation to the arduousness of occupations could be approached from the angle of the contribution expected from individuals in fulfilling the tasks of the state and society.
63 By analogy with the discussion of the skills needed to take responsibility for oneself (supra, N. 35), determining the relevant "strengths" (i.e. abilities) also raises moral questions. It is important to know what types and extent of abilities are presupposed or, in other words, what abilities are considered "normal". This determination then makes it possible to distinguish between individuals who can't and those who won't (but theoretically could) contribute to task performance.
64 This debate on "normality" is linked to the general discussion on the definition of disability and the societal presuppositions of ableism and validism. As such, defining which strengths (abilities) are considered a default position requires us to clarify the contours of this normality and its relevance when interpreting the social responsibility "according to one's strengths" of art. 6 Cst.
65 This limitation to those in a position of capacity does not, however, resolve the difficult question of how much is expected of them. Art. 6 Cst. seems to be based on a general principle of gradation, whereby the greater an individual's strength (capacity), the more he or she is expected to contribute to common tasks. The lower limit is defined by the existence of capacity. Is there an upper limit to this principle? Should each individual contribute "as much as possible" (no upper limit) or, on the contrary, "up to X" (X being the upper limit)? Defining an upper limit would be a response to the criticisms of exaggerated demands that may be raised against art. 6 Cst. Generally speaking, this question touches on a complex issue of moral theory, where the aim is to determine the fair share expected of individuals faced with a general challenge (such as climate change). The complexity arises in particular from the fact that what is expected of a certain individual may depend on the behavior of other individuals.
IV. Conclusion
66 This commentary offers a structured approach to the content of art. 6 Cst. whose interpretation requires the mobilization of resources from legal theory and political philosophy. Even if the direct legal scope of art. 6 Cst. is modest according to the majority of doctrine, its function of orientation and integration into the constitutional order relies on a necessary clarification of the concepts of freedom and responsibility (for natural persons, but potentially also for legal persons). As such, the interpretation of art. 6 Cst. crystallizes the presuppositions and expectations formulated with regard to individuals living within a society. Its existence requires constant normative clarification, as in the case of the question of whether certain individual efforts are required. In this respect, the proposed interpretation of art. 6 Cst. brings together and, in a way, recounts essential elements of our vision of an individual and the expectations placed upon him or her in a liberal society.
Acknowledgements
I would like to thank the two anonymous reviewers, Odile Ammann, Stefan Schlegel, Audrey Boussat, and Martine Rouiller for their feedback on earlier drafts of the text.
About the author
Dr Johan Rochel is a legal philosopher. He is currently a researcher at the Collège des Humanités (EPFL), specializing in the law and ethics of technology, and a lecturer at the University of Fribourg (philosophy of law) and the University of Lausanne (internet governance). He is also affiliated with the Centre for Ethics at the University of Zurich. He holds a doctorate in law from the University of Fribourg and two masters degrees from the University of Berne (political philosophy and law). He was a member of the Valais Constituent Assembly from 2018 to 2023. Contact: johan.rochel@gmail.com
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