The Anthology of Swiss Legal Culture

 

Cluster "Philosophy of Law and General Jurisprudence"

 

Preliminary Section "Elementary Pre-History of Modern Swiss Legal Thought – Reconciliation of Concurring Jurisdictions and Combination of Scientific Disciplines or Methods"

 

Entry 0.16 "Carl Hilty, Über das Studium des Rechts"

 

Selected, Elaborated and Discussed by Michael Walter Hebeisen

 

 

 

Author: Carl Hilty

 

Title: Über das Studium des Rechts in unserer Zeit

 

Edition(s): in: Politisches Jahrbuch der Schweizerischen Eidgenossenschaft, hrsg. von Carl Hilty, Bd. 23, Bern: K. J. Wyss, 1908

 

 

 

[Introduction/Historical Situation and Systematic Context]

 

As a general publisher of the “Political Yearbook of the Swiss Federal State” from 1886 until his death, that was meant to be a journal for politicians, diplomats and scientists from all disciplines, Carl Hilty established as a forerunner of the early political science in Switzerland. As a professor of state and administrative law at the University of Berne, he was also in close touch with the constant needs of academic doctrine and with the inclining demands for young talented lawyers.

 

 

 

[Content, Abstracts]

 

In his speech, Carl Hilty deals with very concrete questions of legal studies of his time, i.e. in 1908. Thoughtful reflections on jurisprudence or legal studies as an academic discipline always means to reflect philosophically the methods, foundations and applications of legal practice. The challenge for jurisprudence in his time is identified as extra great, since the ongoing changes in social structures cannot be neglected and the lawyer has to take everything into his considerations, according to the roman dictum “Iurisprudentia est scientia omnium rerum, tam divinarum, quam humanarum”, i.e. has not only reflect on the human needs, but also on the demands of the absolute.

 

To meet the challenges of legal studies, young students have to be well educated, in the first place, and bids are addressed to the colleges. Nevertheless, the Universities also have to be structured in a way that the can provide a framework for comprehensive academical studies. The combination of teaching and research have already been highly problematic at that time, it makes the appearance, and the necessity of so-called research professorships. It is arguably the most influence lectures can have on students by the extraordinary exemplarity of academic teachers.

 

The author even gives biographical indications of what they should not omit to read during the legal studies at University. The general aim is excellence, but not in an arrogant or selfish sense, according to Ralph Waldo Emerson: “The few who conceive of a better life, are always the soul of the world. In whatever direction their activity flows, society can never spare them, but all men feel even in their silent presence a moral debt to such – were it only the manifestation of the fact that there are aims higher than the average. In this country we need whatever is generous and beautiful in character [sic!] more than ever because of the general mediocrity of thought produced by the arts of gain”. In order to choose jurisprudence as their field of studies, students have to bear the inclination of being reformers from the very beginning of their academic education.

 

Philosophy is declared to be the basis and core of all legal studies, that is to say the key discipline to all scientific knowledge in general, but above all for jurisprudence. Carl Hilty spoke about the hint for his students to read as much as they can from the beginning of their academic studies, and they are consulted to study some semesters at a University abroad. Legal philosophy, however, is judged to be a propaedeutic and encyclopaedical discipline, as a mere introduction to the subject itself, even if to assist to the lectures in legal philosophy “makes part of a completed curriculum in legal studies”. This valuation may surprise one since it is from a person who counts among the representatives of the discipline in case and may stand for the overall level of comprehensive legal philosophy of that time. A compensation can only be brought to this lack by a general knowledge of man and a refined conduct with every kind of person.

 

 

 

[Conclusions, Insights, Evidence/Philosophical Valuation and Jurisprudential Significance]

 

In the very conclusion to his lecture, Carl Hilty claims to the general conditions of justice in everyday life as well as for social justice. Jurisprudents challenge the increasing demands of the practical application of a just legal order. The ethical-moral, sociocultural level of a nation state can be easily measured by the spiritual standing of its lawyers, the author argues. Up to date, only one single lawyer has been declared a saint, namely Ivo de Caermartin: “Sanctus Ivo erat Brito, / advocatus, sed non latro, / res miranda populo”. There should be fewer sacred jurisprudents! “Truth is the summit of being; justice is the application of it to affairs”.

 

 

 

[Further Information About the Author]

 

Carl Hilty, born on 28 February 1833 in Grabs, died on 12 October 1909 in Clarens, studied jurisprudence at the University of Göttingen (1851-1853) and graduated 1854 with a doctorate from the University of Heidelberg. Afterwards, he went to Paris and London, before founding a lawyer’s chancery in Chur in Graubünden, his native Swiss canton. He was, nevertheless, more occupied with publishing studies of public law as well as religious and ethical essays, than with defending clients in court.

 

In 1868, he published “Theoretiker und Idealisten in der Demokratie” and, in 1891, his main work “Die Bundesverfassungen der schweizerischen Eidgenossenschaft”. In 1874, he was called to the ordinary chair of federal law and Bernese public law at the University of Berne, where after 1882 his lectures covered also the general theory of the state and international law. In 1909, he was nominated representative of the Swiss government at the International Court of Arbitration in Den Haag. But he was also the chief editor of “Politischen Jahrbuch der Schweizerischen Eidgenossenschaft”, and he remained so until his death.

 

Our interest is focusing on his critical considerations of ambiance and sense for legal politics in history and in an intercultural context. In a very pragmatic way, he tried to grasp political institutions and their ethical values in order to render them fecundly again for the needs of his time and place.

 

For more information, please consult:

 

Walther Burckhardt: Carl Hilty (1833-1909), in: Politisches Jahrbuch der Schweizerischen Eidgenossenschaft, vol. 24 (1910), pp. 405 ss.;

 

Daniel Thürer (together with Karin Spinnler Schmid): Ein typisch-untypischer Schweizer Staatsrechtler – Die Bedeutung Carl Hiltys für das schweizerische Staatsleben, in: Werdenberger Jahrbuch, vol. 2009, Buchs 2008, pp. 204-214 (auch in: Zeitschrift für

 

Schweizerisches Recht, vol. 2009/ I, pp. 111-129).

 

 

 

[Selected Works of the Same Author]

 

Carl Hilty: Die Bundesverfassungen der Schweizerischen Eidgenossenschaft, Bern: K. J. Wyss, 1891 (in französischer Übersetzung: Les constitutions fédérales de la Confédération suisse – Exposé historique écrit sur la demande du Conseil fédéral à l’occasion du sixième centenaire de la première alliance perpétuelle du 1er août 1291, Neuchâtel: Imprimerie Attinger, 1891; reprint Neuchâtel: Les Éditions de l’Aire, 1991); Idem: Ideen und Ideale schweizerischer Politik – Ein academischer Vor­trag, Bern: Max Fiala, 1875; Idem: Fin de Siècle; and Idem: Die Zukunft der Schweiz, both in: Politisches Jahrbuch der Schweizerischen Eidgenossenschaft, ed. by Carl Hilty, vol. 13 (1899), p. 3-21, resp. vol. 16 (1902), p. 3-39, Bern: K. J. Wyss, 1899/ 1902; Idem (Ed.): Politisches Jahrbuch der Schweizerischen Eidgenossenschaft, 1886-1909.

 

 

 

[For Further Reading]

 

Carl Hilty: Öffentliche Vorle­sungen über Hel­vetik, Bern: Max Fiala, 1878; Idem: Die Bundesverfassungen der Schweizerischen Eidgenossenschaft, Zur sechsten Säcularfeier des ersten Ewigen Bundes vom 1. August 1291, Bern: K. J. Wyss, 1891 (in French language: Les constitution fédérales de la Confédération suisse. Exposé historique écrit sur la demande du Conseil fédéral à l'occasion du sixième centenaire de la première alliance perpétuelle du 1er août 1291, Neuchâtel: Imprimerie Attinger frères, 1891; reprint Les Éditions de l'Aire 1991).

 

 

 

24 October 2017                                                                              Michael Walter Hebeisen