61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

Germany although against the courant normal (normal course of business)), the
USA in 1941 abandoned the isolationist stance that had prevented it from
joining the League of Nations after the First World War. In terms of developments
in foreign policy considerable divergences and even misunderstandings
persisted over decades between the USA and Switzerland, but were not
highlighted in the second Eizenstat Report of June 1998 because of its
markedly multilateral scope and the comparison it made with the conduct of
other countries.
The relationship between historiography and jurisprudence
The ICE was commissioned to undertake a historical and legal probe into the
events it was to examine. However, it is not to be regarded as «historisdiction»,
an imitation of jurisdiction, but rather as a historical project that presents interpretations
and makes assessments, without passing judgment. This makes it all
the more important to explain the links between historiography and jurisprudence
or legal history. It turns out that there are different ways of combining
historical analysis and legal expertise with the relationship between law and
politics being open to discussion at all times. There are three approaches: first,
the law can be an instrument for fashioning politics. Second, it can be regarded
as a reflection of social reality and, third, it also encompasses «superior law»,
that is to say it is by its nature related to the universal standards by which
«simple law» is to be judged.
An important inherent function of jurisprudence for historical work lies in its
«applicative» role, on the principle of «Da mihi facta, dabo tibi ius» (Give me
the facts, I will give you the law). The lawyer makes a substantial contribution
to objectifying matters by endeavouring to reconstruct the legal norms of the
time («lex lata») and not confusing them with mere legal projects («lex ferenda»)
or later law («lex posterior»). He attempts to appraise facts and circumstances as
a judge would have understood them at the time. In other words, it would be
against the basic principles of intertemporal law to judge events that took place
in the Second World War by principles and rules that became legally valid only
much later.
However, it is equally interesting to investigate if and how the law absorbed
and reflected the «Zeitgeist» and the dominant political and economic factors.
Did Nazi ways of thinking leave their mark on or even «impregnate» law and
legal terminology in Switzerland – and if so, to what extent? This problem is
linked to the question of whether the legal system itself contains standards for
«proper law» and the extent to which they can shape events. Did the Constitution
prove its worth as the basic legal instrument of the state? Was it effective
in safe-guarding and guiding a legitimate political and social order? Did it
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