INTRODUCTION

Courts as Legislators in General

This report examines the legal situation in Switzerland in view of an international comparative law study on constitutional courts as positive legislators.

One speaks of a judge or court as a legislator whenever no legislative rule exists for a question arising within the scope of court proceedings. In such cases, the court must close the gap in the law. Pursuant to Article 1, paragraph 2, of the Swiss Civil Code, in such cases “the judge shall decide according to customary law and, in the absence of such customary law, according to the rule he would establish as a legislator.”

The power, or even the obligation, to close the gap – which is available to all courts – results from the prohibition against the denial of justice. Although the provision of law is set out in the Civil Code, it applies to all areas of law; Article 1, paragraph 2, of the Civil Code reflects a general principle of law.

A gap may result because a problem was not recognized in connection with the adoption of the provision and, for that reason, was not regulated (original gap), or because the need for the regulation did not arise until after the provision was adopted (subsequent gap). No gap in the law exists in the case of qualified silence in the statute, that is, when a rule has been intentionally omitted.