I. Introduction
It is well established that while the law is a tool of emancipation, it
is also a tool to maintain conservatism and even oppression.[1]
The objective of this contribution is to propose a critical analysis of the
conditions of access to Swiss citizenship. In particular, the goal is to
identify the extent to which our legal system is likely to create
marginalisation when it excludes individuals who refuse or who are simply
unable to comply with the process of "assimilation" that the law requires
of them.[2]
While the categories of law appear to be merely a faithful reflection of
empirically observable reality, they are in fact only the result of a
decision by the legislator that has the power to attach legal consequences
to states of fact.[3]
The function of law is therefore never purely recognitive but always
constitutive: law establishes what is acceptable or recommended at a time
and within a defined society.[4]
And it is this choice, as it aims to define the notion of citizenship, that
is the subject of our criticism. More specifically, we will deal with the
notion of citizenship as a "legally codified status of belonging [...]"[5], in other words, in the case of Switzerland, with the constitutional and
legal conditions of belonging to the federal electorate and of exercising
political rights.
With respect to Swiss political rights, we demonstrate the importance of
feminist criticism of law, as its tendency to standardise is achieved
through successive movements, the concepts being articulated in such a way
that new marginalised groups are created at each stage. Indeed, in this
field, the law uses apparently universal concepts that are in reality
always deduced from or modelled on a heterosexual male frame of reference,
with the consequence that subjects who deviate from this hegemonic norm are
rendered invisible.[6]
The interconnection of these different unifying notions thus pushes the
marginalised individuals a little further at each step.
As a preliminary step, it is necessary to revisit certain elements of
feminist criticism of the concept of democracy which already endorses an
idea of gender roles, and to propose a critical approach that challenges
the notion of abstract universalism - a position that is also present in
theories of citizenship. In the light of these theoretical considerations,
we will examine the criterion of nationality as an element of inclusion in
the "people" as a member of the federal electorate[7]
and the incidental effects, including the creation of a caste-like system
in which different categories of the population are rendered invisible.[8]
II. Questioning the Abstract Universalism of Democracy
Before demonstrating the homogenising aspect of the law in the area of
political rights, we highlight certain elements of the feminist critique of
democracy.[9]
Indeed, as many authors have pointed out, the democratic framework is
already underpinned by a gender logic[10]
and the female category constitutes one of its "margins". The historical
example of the exclusion of women from "universal" suffrage is, in this
respect, emblematic and particularly useful for our critique regarding the
exclusion of other categories of subjects.[11]
While we accept that democracy is a political system in which power is
derived - directly or indirectly - from the people,[12]
we also note that these two notions have been shaped and influenced by
gendered representations denounced by feminist political scientists. For
example, in her work, British professor of political thought, Carole
Pateman, has criticised the "sexual contract", which is the corollary of
the idea of the democratic social pact concluded between equal and free
men, and which has given substance to the definition of democracy.[13]
According to her, the concept of a democratic regime composed of equal and
free subjects aims above all at an alliance between "brothers", between
men, whose status as free subjects is in contrast to the dependence of
female subjects.[14]
From a political theory standpoint, men are essentially the subjects and
their freedom derives from the sexual division of labour that allows them
to participate in public life, while women are viewed as political subjects
through the prism of the family.[15]
Historically, the gendered distribution of roles assigning women to private
spaces and men to the public sphere has therefore long been considered
irrelevant for thinking about democracy and the constitution of its
political spaces.[16]
However, the construction of the division between private and public
spaces, which is at the heart of the concept of democracy, has
repercussions on the participation and representation of women, even when
they have similar political rights to men.[17]
Furthermore, the entire democratic political culture is infused with male
representations according to feminist researchers. The founding myths of
the social contract underpinning the legitimacy of the political system are
based on male narratives (William Tell, Rütli oath [Rütlischwur]),[18]
instituting solidarity and fraternity which barely takes into account the
interests of female subjects.[19]
Moreover, the areas of political socialisation are also strongly influenced
by male circles (student associations traditionally reserved for men,
Masonic houses, armies, etc.).[20]
Consequently, the gender-specific experience of the subjects and the power
relationships that mark these experiences are not taken into account. These
elements are, in fact, subsumed under the presumably all-encompassing
experiences of male subjects.[21]
This observation is synthesised by the concept of "abstract universalism"
in the literature and is not new.[22]
It developed at the beginning of the 20th century and led ethnologist
Heinrich Schurtz to use the term Männerbund to designate
modern democratic States, and specifically Switzerland where the relevance
of the term has continued over the centuries.[23]
Ultimately, both the historical exclusion of women from the exercise of
political rights and the discrimination they still face are central issues
for a democratic system.[24]
This abstract universalism thus questions the real scope of formal
equality.[25]
Unquestionably, there are still many areas in which the inclusion of women
has not been achieved, as the consequences and pitfalls of abstract
universalism have not been fully recognised.[26]
Female citizens therefore had to be 'incorporated' into a supposedly
universal political system. Universality was therefore to be understood as
synonymous with masculinity.[27]
However, this fiction of the universal representativeness of the Swiss
democracy is still conceived in terms of exclusion rather than inclusion,
not only because other categories of the population are excluded (minors,
foreigners, persons who are incapable of discernment),[28]
but also because the factual conditions for participation of marginalised
individuals are not taken into account.[29]
Therefore, the demand for an increase in representation of women in
politics and within the different spaces of power constitutes a means of
resistance and struggle against this abstract universalism that de facto hinders equality.[30]
Moreover, men's democratic culture and the de facto barriers it
imposes on a whole section of the population have the effect of diminishing
the depth and quality of the public debate, as well as of the political
action that results from it.[31]
Thus, as long as the power relations that frame social interaction and
decision-making spaces are not redefined to take all stakeholders into
account, their democratic legitimacy and efficiency will be impacted.[32]
Indeed, the adopted norms will remain pre-formatted by the social
experience of a very particular category of the population, unaware of its
privileges and the relativity of its point of view.[33]
We will see that the same applies to other forms of exclusion.
III. Nationality as a Criterion for Exclusion from Citizenship
If we focus on the Swiss legal order in more detail, we must recall that
the democratic principle is both the legitimacy criterion of the
Constitution and the primary value on which Swiss institutions are based.[34]
The "people"[35]
occupy the position of the supreme organ of the community and collectively
represent a fundamental pillar of democracy.[36]
Article 136 of the Federal Constitution
defines the "people", in the sense of the federal electorate, as
Swiss men and women aged 18 and over who have not been banned from voting
for reasons of mental illness or mental weakness.
Citizenship is, by definition, the key to inclusion in a democracy, since
it allows the exercise of political rights and thus active participation in
political life and in the development of law.[37]
When citizens exercise their political rights, they are making use of a
fundamental right expressly enshrined in the Federal Constitution which
allows them not only to elect and vote, but also to be elected whether to
the Federal Parliament, the Federal Council, or to a position as a judge at
the federal level. As Auer, Malinverni and Hottelier point out, "the
definition of the electorate is the first stone of the democratic
institutional edifice".[38]
However, as with the concept of democracy, the concepts of people and of
citizenship have a "homogenising" tendency and are constructed on a logic
of otherness.[39]
Indeed,
Article 136 of the Federal Constitution
excludes a significant part of the population: minors, those incapable of
discernment, and foreign nationals. It is on this last category that we
will focus our analysis.[40]
The notion of people in accordance with the Constitution excludes all
persons who do not have Swiss nationality. This is a classic,[41]
but questionable, approach shared by many legal systems, according to which
only citizens would share a sufficiently strong sense of loyalty towards
their State to participate in decision-making (Bürgerdemokratie).[42]
From a conceptual point of view, access to nationality is based on the
construction of an alterity relationship among the members of a population
that is supposed to be homogeneous.[43]
The term citizenship therefore implicitly contains an aspect of
prioritisation and standardisation. One part of the population will have
access to norms and participate in their development, while the other part
of the population will be those to whom these norms are addressed. This
situation is questionable in the light of the principle of democracy
enshrined in the Federal Constitution.[44]
Belonging to the category of "the people" also has another political
interest that makes it a major issue and was theorised by the philosopher
Hannah Arendt through the idea of the "right to rights".[45]
According to Arendt, in order to benefit from the protection of the law and
to participate in a legal system, it is necessary to be recognised as
subjects under the law. Thus, a fundamental right that would be a
prerequisite for all the others would be the "right to have rights", which
implies that one is recognised as belonging to a given legal order and
therefore a holder of the entire catalogue of other fundamental rights.
Although the majority of fundamental rights are nowadays recognised
independently of nationality,[46]
the fact remains that political rights in Switzerland - as well as freedom
of establishment and protection against deportation[47]
- are linked to Swiss nationality, which is thus a vector of integration
and increased protection. As Brigitte Studer reminds us, citizenship is
composed of several overlapping (but not necessarily inclusive) elements:
citizenship is, first of all, a legal norm of public law on which
nationality is based; it then ensures a social status with the rights that
derive from it, such as integration into social protection; finally, it
grants access to political rights and practices.[48]
As long as some individuals have only marginal access to nationality, their
protection and opportunities for participation are diminished,[49]
despite the existence of other participation rights such as the right to
petition or freedom of association. The latter do not allow them to
influence political decision-making in the same way as other political
rights available to nationals (art. 34 of the Federal Constitution), especially as they are not binding for the authorities. Thus, in order
to defend their own interests, non-nationals are limited to using indirect
means of participation, making them dependent on the goodwill of Swiss
citizens who may or may not take their interests into account, a situation
not unlike that of women who are forced to persuade men to represent them.[50]
As with the inclusion of women, access to the legal status of citizenship
is therefore a guarantee that the interests of this category of people will
be better protected and taken into account.[51]
IV. Homogenisation and Exclusion: The Example of Facilitated
Naturalisation
In Switzerland, the notion of citizenship is strongly influenced by the
right of blood or jus sanguinis (as opposed to the right of soil, jus soli):[52]
the granting of political rights is limited to Swiss nationals and Swiss
nationality is acquired in the first place through the establishment of
lineage (art. 1 SCA).[53]
Only the naturalisation procedure is likely to enable foreign nationals to
acquire Swiss nationality. This procedure therefore plays a fundamental
role from a democratic point of view. By defining the conditions under
which naturalisation takes place, the Nationality Act not only establishes
the conditions for acquiring nationality, but also indirectly defines the
conditions for acquiring political rights, i.e. the conditions for
obtaining "a ticket" to enter the Swiss democratic process.[54]
We will see not only that the requirements defined by this law are
characterised by their strong "homogenising" nature, but also that their
application is influenced by a normative vision of the notion of marriage.[55]
In this respect, it should be recalled that women's struggle for political
rights overshadowed another issue that was already relevant to the question
of nationality: the need for women to conserve their nationality in case of
marriage to a foreigner. Indeed, as Helen Irving notes, even as political
rights were finally being granted to women, the legislation of many States
continued to make women's nationality dependent on that of their husbands.[56]
In Switzerland, it was not until the revision of the Nationality Act on 1
January 1992 that Swiss women no longer lost their nationality - and
therefore their political rights - as a result of marrying a foreigner.[57]
The Nationality Act distinguishes between an ordinary naturalisation
procedure (art. 9 ff. SCA) and a
facilitated naturalisation procedure (art. 20 ff. SCA). As its name
suggests, facilitated naturalisation aims to offer certain foreign
nationals Swiss nationality under facilitated circumstances, and thus
indirectly the granting of political rights in a facilitated manner. Yet,
facilitated naturalisation essentially targets heterosexual married
couples: the legislator considers that through the matrimonial ties that
unite him or her to a Swiss citizen, the foreign applicant is presumed to
have become more familiar with the way of life in Switzerland, which is why
he or she benefits from the more favourable conditions for access to Swiss
nationality and indirectly to political rights.[58]
Same-sex couples who have entered into a registered partnership currently
benefit from an intermediate, but nevertheless discriminatory situation:
even if they enjoy the shorter deadlines applicable to heterosexual
couples, they must go through the ordinary procedure, which is more
burdensome, gives a wider margin of appreciation to the administration and
its actors, and is not subject to the same judicial remedies (art. 83 letter b LTF[59]) as the simplified one.[60]
Knowing that the naturalisation procedure is a compulsory step for
foreigners to obtain political rights and thus access to the right to vote
and to be elected, the risk of creating social marginality becomes apparent
very quickly: not only are foreign nationals excluded from these rights,
but the procedure that allows them to acquire them is highly
"heteronormalised": only married heterosexual foreign couples benefit
from a facilitated procedure to the present day.
Ultimately, the requirements defined by the Nationality Act are
discriminatory. As explained, the most obvious discrimination is directed
at homosexual couples. In addition, there is also a difference in treatment
for couples living together. These couples, whether heterosexual or
homosexual, are indeed forced to legalise their relationship in order to be
able to benefit from rights associated with the generalisation that
matrimonial ties make the foreign applicant more familiar with the Swiss
way of life. Yet we know for example that same sex couples sometimes decide
to renounce the conclusion of a partnership not only because of the
disadvantages that this union creates or codifies - for example in terms of
adoption - but also because of the categorising effect that it is likely to
have, especially in the professional environment.[61]
Differences in treatment also target single individuals, regardless of
their sexual orientation. Because there is no matrimonial relationship
likely to presume familiarity with the Swiss way of life, single persons
must meet the much stricter conditions of ordinary naturalisation. Finally,
this is also sometimes the case for transgender people who may have to
undergo complex legal procedures to access marriage based on their sexual
orientation.[62]
Indeed, while a transgender woman who is registered as male may marry a
woman, she will have to change her civil status to female before she can
marry a man.
In addition to these differences in treatment in the law, there
are also differences in treatment in the application of the law.
As Anne Lavanchy points out, marriage serves as a social institution
mobilising moral values in the service of a formalising civil
administration. When it concerns a binational couple, marriage is subject
to an evaluation process on the basis of gendered and racialised criteria.[63]
Under the guise of objective enforcement of the law, civil registrars rely
on their personal feelings to identify fraudulent couples.[64]
Binational couples then become suspicious as soon as they deviate from the
norm[65]
and do not conform to the "ideology of romantic love".[66]
At a later stage, such a process is repeated before the administrative
authorities. In their field research, Anne Kristol and Janine Dahinden
demonstrate that the requirements enshrined in the Nationality Act are
applied by the administrative authorities according to a normative vision
of the conjugal relationship and on the basis of a "hierarchy of merit" to
obtain Swiss nationality based on stereotypes linked in particular to
gender.[67]
In judging the legitimacy of marriage, factors such as age difference, the
presence of children, or sexual fidelity are taken into account.[68]
In addition, there is the requirement that the bi-national marriage must
endure over time, otherwise there is a "presumption of fraudulent
acquisition of facilitated naturalisation"[69]
- and indirectly of citizenship.
In the end, it can therefore be observed that the nationality criterion,
which at first sight seems gender neutral, is conservative, highly
heteronormative, and based on stereotypes. And such stereotypes are likely
to be reflected in the representativeness and diversity of political
institutions.
One solution would, therefore, be to rethink the naturalisation process on
the basis of the criticism mentioned above. In our view, however, this
would not be sufficient in view of the democratic principle which implies
that decisions must be taken by the people who are subject to them.[70]
In order to favour a more inclusive approach, - without, however,
fundamentally questioning the very notion of a federal electorate[71]
- the nationality requirement would therefore have to be waived.[72]
In this regard, several proposals have been made. The most common is to
include a certain type of foreign national in the electorate: holders of a
residence permit.[73]
Such an approach is open to criticism insofar as the Foreign Nationals and
Integration Act[74]
uses the same type of criteria as the Nationality Act and is therefore just
as heterogeneous and stereotypical.[75]
It would, therefore, seem more appropriate to use the objective criterion
of duration of presence. Foreign nationals who have resided in Switzerland
for a certain period of time would then be eligible for political rights.[76]
V. Conclusion
Feminist criticism has highlighted the limits of historical concepts of
citizenship and democracy and has revealed some of the underlying
stereotypes. Based on this observation, a more inclusive approach that
considers the social reality has been proposed.
From this theoretical standpoint, we take the view that the definition of
the notion of citizenship, within the meaning of the Swiss Constitution,
does not withstand criticism: the requirement of nationality for access to
political rights no longer seems appropriate and its relevance is called
into question. Thus, the demand to open up the criteria for access to
political rights and citizenship remains a political issue that is subject
to resistance, despite the imperfections of the legal requirements
highlighted in this contribution.[77]
[1]
Marie-Xavier Catto et al., Questions
d'épistémologie: les études sur le genre en terrain
juridique, in: Hennette-Vauchez/Möschel/Roman (eds.), Ce que le genre fait au droit, Paris
2013, p. 4; François Ost, A quoi sert le droit?, Bruxelles
2016, p. 80 f., the author describes the different uses of law,
which vary according to the actors involved. In this regard, the
law can be an instrument applied by an authority, a tool for
leading an emancipatory struggle for victims of injustice, but also
a weapon in the hands of the powerful and those who use the weapon
to strengthen their interests.
[2]
A process that ignores the diversity of individuals who are
governed by the law, as well as the existence of a power imbalance
within a category itself. This aspect has been theorised by Monique
Wittig, in particular to refer to the rejection of the experience
of lesbian women within the "woman" category. This tendency to
"homogenise" the population and deny diversity is the subject of
criticism in intersectional feminism. Cf. Alexandre Jaunait /
Chauvin Sébastien, Représenter l'intersection. Les
théories de l'intersectionnalité à l'épreuve
des sciences sociales, Revue française de science politique
62/2012, p. 5 ff.
[3]
Elsa Fondimare, Le genre, un concept utile pour repenser le droit
de la non-discrimnation, Revue des droits de l'homme 5/2014, p. 4
f.
[4]
Danièle Lochak, Dualité de sexe et dualité de genre
dans les normes juridiques, Lex Electronica 2010, p. 15 ff.
[5]
Yves Déloye, La citoyenneté entre devoir et engagement
politique, in: Beaud/Saint-Bonnet (eds.), La citoyenneté comme
appartenance au corps politique, Paris 2020, p. 28.
[6]
Michèle L. Caron, Variations sur le thème de
l'invisibilisation, Canadian Journal of Women and the Law 7/1994,
p. 274; Catto et al. (n. 1), p. 19.
[7]
The title 4 of the Federal Constitution, which contains art. 136 on
the composition of the federal electorate, refers to "People and
Cantons", see n. 35.
[8]
The questioning of the ownership of political rights within a legal
order also implies a potential reversal of the existing hierarchy
between nationals and non-nationals: see, e.g., Brigitte Studer, La
conquête d'un droit, Neuchâtel 2021, p. 104 ff.
[9]
Caroline Beer, Democracy and Gender Equality, Studies in
Comparative International Development 44/2009, p. 212 ff. The
author reviews the various existing works that connect gender and
the study of democracy as a political regime. She points out that
the inclusion of women among the citizens of such a regime is not
sufficiently taken into account to evaluate its democratic
character. She disapproves of this situation since the granting of
political rights to women - as to other categories of the
population - constitutes not only a source of better protection for
them, but also reinforces the acceptability of the regime, p. 213
and 218 ff.
[10]
Barbara Holland-Cunz, Demokratie - StaatbürgerInnenschaft -
Partizipation, in: Rosenberger/Sauer (eds.),
Politikwissenschaft und Geschlecht, Vienna 2004, p. 132; Brigitte
Studer, Universal Suffrage and Direct Democracy - The Swiss Case
1848-1990, in: Fauré (ed.), Political and Historical
Encyclopaedia of Women, New York 2003, p. 689.
[11]
Ruth Rubio-Marín, The Achievement of Female Suffrage in
Europe: On Women's Citizenship, International Journal of
Constitutional Law 12/2014, p. 4 ff.; Studer (n. 8), p. 9 ff.
[12]
The concept of democracy itself is not unequivocal. There are many
controversies and studies about the notion and the elements that
allow for the defining of a political regime as such. In this
contribution, we will limit ourselves to a legal approach to
democracy (Martina Caroni, Herausforderung Demokratie, RDS 2013, p.
11 ff.; Yvo Hangartner / Andreas Kley, Die demokratischen Rechte in
Bund und Kantonen der Schweizerischen Eidgenossenschaft, Zurich
2000, § 11), as well as to a gender critique of it. For a
broader overview of different theories of democracy and their
critiques, see in particular: Alexandre Gefen / Sandra Laugier, Le
pouvoir des liens faibles, Paris 2020 or Dominique Bourg, Inventer
la démocratie du XXIe siècle, Paris 2017.
[13]
Carole Pateman, The Sexual Contract, Oxford 1988. She insists on
the need to integrate a gender reading of political theory in order
to build a just and inclusive political system: "[T]he story of
political genesis needs to be told again from yet another
perspective. The men who (are said to) make the original contract
are white men, and their fraternal pact has three aspects; the
social contract, the sexual contract and the slave contract
[…]", p. 221.
[14]
Pateman (n. 13), p. 49. Blanca Rodriguez Ruiz / Ruth Rubio-Marin,
Le genre de la représentation: démocratie,
égalité et parité, in:
Hennette-Vauchez/Möschel/Roman (eds.), Ce que le genre fait au
droit, Paris 2013, p. 166.
[15]
Ruiz/Rubio-Marìn (Fn. 14). Cf. also, on the gendered division
of labour in Switzerland: Michelle Cottier / Johanna Muheim,
Travail de Care non rémunéré et égalité de
genre en droit de la famille suisse. Une évaluation critique
du nouveau droit de l'enfant, RSD 2019 I, p. 6.
[16]
Holland-Cunz (n. 10), p. 139. She echoes the words of Professor
Sandra Harding, who describes women as being on the fringes of the
political arena in an article entitled Rethinking Standpoint
Epistemology: What is Strong Objectivity ?, in: Fox Keller/Longino
(eds.), Feminism & Science, Oxford 1996. See
also Carl F. Stychin, Governing Sexuality: The Changing Politics of
Citizenship and Law Reform, London 2003, p. 8 f.
[17]
Line Blattmann, Männerbund und Bundesstaat, in:
Blattmann/Meier (eds.), Männerbund und Bundesstaat, Zurich
1998, p. 21. See also Marie-Cécile Naves, La
démocratie féministe, Réinventer le pouvoir, Paris
2020, p. 266, who denounces the role of essentialising theories
claiming a complementarity of quality and capacity between the two
sexes, in the construction of such a separation of spaces;
Rubio-Marín (n. 11), p. 6 ff.
[18]
Blattmann (n. 17). In Switzerland the term "Confederation" is used.
Its members are historically primarily male citizens who have
joined together to protect the rest of the population from possible
attacks. According to her, the notion of citizenship is constituted
mainly in the practice of war. This is reflected in the place given
to the army as an institution of socialization to citizenship in
the Swiss system.
[19]
On the political culture revealing and promoting gender
stereotypes, see: Iris Blum / Monika Imboden, Eingebunden -
Ungebunden Nationale Inszenierungen und politische Aktionsformen
von Frauen seit 1945, in: Blattmann/Meier (eds.), Männerbund
und Bundesstaat, Zurich 1998, p. 8 ff.
[20]
Blattmann (n. 17), p. 21; Manon Tremblay / Thanh-Huyen Ballmer-Cao
/ Bérengère Marques-Pereira / Mariette Sineau, Genre,
citoyenneté et représentation 2007, p. 4. It should be
recalled that the Federal Court has forced the University of
Lausanne to continue to grant the Zofingen student association the
status of a university association even though the latter does not
admit women. According to our Supreme Court, the overall weighing
of the interests is in favour of the freedom of association and
equality of treatment, invoked by [Zofingen] to the detriment of
the principle - legitimate and important in itself - of equality
between women and men, which [the University] wishes to establish
in practice and promote, Judgement of the Swiss Federal Supreme
Court ATF 140 I 201,
consid. 6.7.4. See also the data concerning the political,
administrative, and economic elites in Switzerland, still largely
male, Data base on Swiss elites,
or the recent debate on the Basel guilds, Céline Zund, A
Bâle, les membres de guildes se conjugueront au féminin,
Le Temps of 9 April 2021.
[21]
See, in particular, Studer (n. 8), in this sense: "the history of
women's suffrage is a history of power: that of men who declare
their own category as universal and naturalize the socially
constructed relationship between men and women. It is also a
history of structural violence, by the denial of a right; symbolic,
by the exclusion of a space [....]", p. 154 (own translation).
[22]
Berengere Marques-Pereira, Citoyenneté, in: Achin et al.
(eds.), Dictionnaire genre et science politique, Paris 2013, p. 90;
Naves (n. 17), p. 265 proposes instead to build an "inclusive
universal" project that takes into account the experiences of other
categories of the population.
[23]
Heinrich Schurtz, Altersklassen und Männerbünde,
Eine Darstellung der Grundformen der Gesellschaft, Berlin 1902. The
sociologist, Luc Boltanski, made a similar observation in 1966 and
stated that "[t]here is a sense in which Swiss society as a whole
is impregnated with masculine values", quoted in Studer (n. 8), p.
141.
[24]
For an in-depth presentation of feminist theories of democracy
(Mouffe, Fraser, Elsthain, Pateman, …), see Holland-Cunz (n.
10), p. 132; Marques-Pereira (n. 22), p. 95; Beer (n. 9).
[25]
See, for example, Rubio-Marín's comparative study on the
percentage of women in the lower houses of the States of the
European Union, (n. 11), p. 30.
[26]
Studer (n. 8). Some authors have, nevertheless, tried to resist
this criticism by arguing that women benefit from some form of
indirect participation because of the influence that some wives
have over their husbands: cf. Blattmann (n. 17) who denounces these
efforts. See also, Tremblay et al (n. 20), p. 8 and p.
123.
[27]
Christine Nadeau, La critique féministe, in: Nadeau (ed.),
Justice et démocratie, Montréal 2007, p. 128; Tremblay et
al. (n. 20), p. 2; Catto et al. (n. 1), p. 9.
[28]
Véronique Boillet, Le corps électoral fédéral,
in: Diggelmann et al. (eds.), Verfassungsrecht
der Schweiz, Zurich 2020, p. 3, N 11; Dimitri Kochenov,
Inter-Legality - Citizenship - Inter-Citizenship, in:
Klabbers/Palombella (eds.), The Challenge of Inter-Legality,
Cambridge 2019, p. 134.
[29]
The Swiss Federal Supreme Court itself has acknowledged in its
judgement ATF 123 I 152
(JdT 1999 I 282) that in order to achieve a real equality of
opportunity between men and women, alternative measures to equality
in the law must be implemented: appointment of women to the top of
political lists, improvement of training opportunities, promotion
of part-time work, easier reintegration into the labour market,
increase in the number of childcare spaces, etc. (consid. 6). More
broadly, the various limits of a solely participatory approach to
democracy are summarised and critically discussed in Luc Blondiaux,
La démocratie participative, sous conditions et malgré
tout. Un plaidoyer paradoxal en faveur de l'innovation
démocratique, Mouvements 50/2007, p. 118.
[30]
On that topic, Jane Mansbridge, Les Noirs doivent-ils être
représentés par des Noirs et les femmes par des femmes ?
Un oui mesuré, Raisons politiques 2/2013, p. 53 ff.
For a definition of formal equality: Judgement of the Swiss Federal
Supreme Court ATF 123 I 152 (JdT 1999 I
292). See also, Ruiz/Rubio-Marìn (n. 14). It should be noted
that this objective appears to be in line with the aims set out at art. 5 of the Convention
on the Elimination of All Forms of Discrimination against Women
(CEDAW;
CC [classified compilation] 0.180), cf. Cottier/Muheim (n. 15).
[31]
Elvita Alvarez / Lorena Pairni, Engagement politique et genre: la
part du sexe, NQF 3/2005, p. 110. They point out that the gender
division of labour as well as other forms of inequality (such as
the lack of childcare solutions for example) existing in
Switzerland shape deep-rooted barriers to women's political
participation in Switzerland. See also Naves (n. 17), p. 267, which
also makes explicit the challenges of eradicating sexual violence
or gender bias in education in order to achieve equality in
practice. She also notes that the COVID-19 crisis has exacerbated
existing inequalities and revealed the marginalization of women in
public aid policies that have mainly benefited men, p. 265 and 268.
The paradox is that public policy that is explicitly useful to
women is always also indirectly useful to men, although the
opposite is not true.
[32]
Ruiz/Rubio-Marin (n. 14), p. 158.
[33]
Gabriele Wilde, Politik und Recht, in: Rosenberger/Sauer (eds.),
Politikwissenschaft und Geschlecht, Vienne 2004, p. 217.
[34]
Thierry Tanquerel, Les fondements démocratiques de la
Constitution, in: Thürer/Aubert/Müller (eds.),
Verfassungsrecht, Zurich 2001, § 18.
[35]
Art. 136 of the Federal Constitution
of 18 April 1999 is the first provision of Title 4 of the
Constitution entitled "The People and the Cantons" (FC; RS 101). As Studer (n. 8),
describes "citizenship is what defines the individual right to
belong to a community of autonomous actors while granting a person
the freedom to be an autonomous, independent, self-determined
actor. Citizenship is one of the main, if not the main, structuring
category of modern democracies. It is central to the constitution
of the state and modern society. It is the citizens who form 'the
people' or the sovereign as the electorate is commonly called in
Switzerland. They are the sovereigns, who hold the power and
delegate it. It is around this category that democracy emerges,
legitimises and stabilises itself." (own translation), p. 12. On
the concept of "the people", see also Rene A. Rhinow / Markus
Schefer / Peter Ubersax, Schweizerisches Verfassungsrecht, 3 rd ed., Basel 2016, N 252 ff.
[36]
Andreas Auer / Giorgio Malinverni / Michel Hottelier,
Droit constitutionnel suisse, 3rd ed., Bern 2013, §
618.
[37]
Holland-Cunz (n. 10), p. 133.
[38]
Auer/Malinverni/Hottelier (n. 36), N 623
[39]
See Studer (n. 8), p. 9, who points out that many categories of
people were excluded from political rights as early as the first
Constitution of 1848. See also Holland-Cunz (n. 10), p. 135;
Blattmann (n. 17), p. 26; Nicolas Bamforth, Sexuality and
citizenship in contemporary constitutional argument, International
Journal of Constitutional Law 2/2012, p. 482; Stychin (n. 16), p. 8
ff.
[40]
Today, this category represents about a quarter of the population
residing in Switzerland: see Federal Statistical Office (FSO),
Permanent foreign resident population by citizenship, on 31
December 2019. Auer also points out that illegal immigrants are not included in
these figures: Andreas Auer, Gedankenfetzen zur Figur des
Staatsbürgers, in: Ehrenzeller et al. (eds.), Vom
Staatsbürger zum Weltbürger ein republikanischer Diskurs
in weltbürgerlicher Absicht, Zurich et al. 2001, p. 57. For
the other two categories, see Boillet (n. 28), N 17 and N 35 ff.
[41]
Déloye (n. 5), p. 28 ff.
[42]
Boillet (n. 28), N 24. "In this respect, the term 'stato-national'
citizenship is used to reflect the idea that there is a 'cultural
and moral homogeneity [among the citizens of a state] that is
favourable to the promotion of an identity capable of absorbing
particularities and limiting conflicts arising from a sense of
belonging [to other cultures]'", (own translation) Yves
Déloye, Sociologie historique du politique, Paris 2017, p. 65.
This observation is, however, increasingly questionable in view of
the importance that multinationality tends to take on, without
translating into a disengagement toward one or another of the
states of which a person is a national. See Joachim Blatter /
Martina Sochin D'Elia / Michael Buess, Bürgerschaft und
Demokratie in Zeiten transnationaler Migration: Hintergründe,
Chancen und Risiken der Doppelbürgerschaft, study commissioned
by the Federal Commission for Migration, Bern 2018, p. 57 ff.
[43]
Stychin (n. 16), p. 7; Gerard Delanty, Citizenship in a Global Age:
Society, culture, politics, Buckingham 2000.
[44]
Jean-François Aubert / Pascal Mahon, in: Aubert/Mahon (eds.),
Petit commentaire de la Constitution fédérale de la
Confédération suisse du 18 avril 1999, Zurich et
al. 2003, art. 136 N 3; Caroni (n. 12) at p. 47 ff.; Tarkan
Göksu / Pierre Scyboz, Droits politiques des étrangers et
des Suisses de lʼétranger, FZR 2002 I, p. 20 ff.; Joachim
K. Blatter / Samuel D. Schmid / Andrea C. Blättler, Vom
Demokratiedefizit europäischer Nationalstaaten, Elektorale
Exklusivität im Vergleich, in: Glaser (ed.), Politische Rechte
für Ausländerinnen und Ausländer?, Zurich 2017, p.
309; Hangartner/Kley (n. 12), N 29. Also Blatter / Sochin D'Elia /
Buess (n. 42), p. 67.
[45]
Hannah Ardent, The Origins of Totalitarianism, 3rd ed.,
New York 1968, p. 291 ff.
[46]
Siobhàn Mullaly, Gender equality, citizenship: status and the
politics of belonging, in: Albertson Fineman (ed.), Transcending
the Boundaries of Law, New York 2011, p. 193.
[47]
Céline Gutzwiler, in: Martenet/Dubey (eds.), Commentaire
romand de la Constitution, Basel 2021, art. 37 N
8 (cit. CR Cst.-Gutzwiler). This is true even in terms of access to
social assistance, since the fact of having benefited from such
assistance can be a reason for expulsion.
[48]
Studer (n. 8), p. 12.
[49]
Wilde (n. 33), p. 222; Helen Irving, Citizenship and nationality,
in: Irving (ed.), Constitutions and Gender, Cambridge 2017, p. 387
and p. 404. Nevertheless, the lack of protection criticised by
Arendt (n. 45) can be somewhat tempered by the rise of
international human rights instruments, cf. Mullaly (n. 46), p.
193.
[50]
Suffragettes had access to other means of political action than
voting or election. However, these means did not allow them to
decide for themselves or to act directly on issues affecting them,
Studer (n. 8), p. 12 and p. 104 ff.
[51]
Mansbridge (n. 30), p. 55.
[52]
Anne Kristol / Janine Dahinden, Becoming a Citizen through
Marriage: How Gender, Ethnicity and Class Shape the Nation,
Citizenship Studies 2019, p. 8; Kochenov (n. 28), p. 136. The
authors stress that this principle prevails in a majority of
States. Nevertheless, the specific criteria for naturalisation then
vary greatly from one State to another, which indicates that it is
a matter of political choice that prevails when adopting one or
another as legal criterion.
[53]
Federal Act on Swiss Citizenship of 20 June 2014 (SCA; CC 141).
[54]
See CR Cst.-Gutzwiler, art. 37 N 12 ff; Irving (n. 49), p. 395.
[55]
Kristol/Dahinden (n. 52); Also Dietrich Choffat / Marta Roca I
Escoda / Helen Martin, À certifier conforme. Les couples
binationaux face à la loi helvétique, Revue
européenne des migrations internationales 36/2020, p.
281 ff.
[56]
Irving (n. 49), p. 387 ff.
[57]
Brigitte Studer, Citizenship as Contingent National Belonging:
Married Women and Foreigners in Twentieth-Century Switzerland,
Gender & History 13/2001 and the references cited.
[58]
State Secretary for Migration (SEM),
Manuel Nationalité pour les demandes dès le 1.1.2018, Chapitre 4, Bern 2018, p. 4. Critique: Kochenov (n. 28), p. 145.
For this author, the definition of the legal criteria for the
acquisition of nationality is the result of a political choice that
is too often presented as self-evident, whereas the assumption that
the acquisition of nationality influences the learning of certain
social or cultural values is only a fiction.
[59]
Not available in English (Loi sur le Tribunal federal of 17 June
2005 [LTF; CC 173.110]).
This difference results from the jurisdictional division between
the federal authorities that direct the facilitated naturalisation
process, and the cantonal authorities that are mainly responsible
for ordinary naturalization, CR Cst.-Gutzwiler, art. 38 N 6, N 22
ff. and N 36 ff. The cantons and municipalities may, in fact,
require additional conditions for ordinary naturalisation,
particularly with regard to the integration requirement.
[62]
Federal Office of Justice, Rapport explicatif relatif à
l'avant-projet concernant la révision du Code civil Suisse
(changement de sexe à l'état civil), 23 May 2018, p. 2;
Grohsmann/Hausammann/Vinogradova (n. 61), p. 16.
[63]
Anne Lavanchy, L'amour aux services de l'état civil:
régulations institutionnelles de l'intimité et fabrique
de la ressemblance nationale suisse, Migrations Société
62/2013, p. 66.
[64]
Lavanchy (n. 63), p. 70.
[65]
Due to a difference in age or social class, for example, Lavanchy
(n. 63), p. 73.
[66]
Ideology built on elements such as: the unwillingness of the couple
to live under the same roof, the refusal to have children or the
failure to present the origin of their meeting or their marriage in
a romantic and idealistic fashion, Maite Maskens, L'amour et ses
frontières: régulations étatiques et migrations de
mariage (Belgique, France, Suisse et Italie), Migrations
Société 6/2013, p. 53.
[67]
Kristol/Dahinden (n. 52), p. 12 f.
[68]
Kristol/Dahinden (n. 52), p. 7.
[69]
Cf. Judgement of the Swiss Federal Administrative Court C-2140/2015 of 23 March
2016 [French], consid. 6.2 and its analysis in: Dietrich/Roca I
Escoda/Martin (n. 55).
[70]
Among others: CR Cst.-Gutzwiler, art. 39 N 27;
Blatter/Schmid/Blätter (n. 45), p. 309; Caroni (n. 12), p. 47
ff.; Gösku/Scyboz (n. 45); Hangartner/Kley (n. 12), N 29.
[71]
We refer here to the scientific debates on a post-national model of
citizenship, in particular Bauböck's view that democratic
inclusion requires three elements, namely the inclusion of affected
interests in political decisions, the involvement in civil and
social rights systems of those subject to the law, and the
recognition of membership and rights to political participation in
a democratic community. Yet "these three modes of inclusion should
be governed by specific normative principles that apply differently
to varying personal circumstances" (own translation): Rainer
Bauböck, Trois principes d'inclusion démocratique, in:
Beaud/Saint-Bonnet (eds.), La citoyenneté comme appartenance
au corps politique, Paris 2020, p. 43.
[72]
Boillet (n. 28), N 24; Irving (n. 49), p. 403. They both come to
the same conclusion and set inclusion as a priority to grant better
protection of women.
[73]
Among others, see Caroni (n. 12), p. 53.
[74]
Federal Act on Foreign Nationals and Integration of 16 December
2015 (FNIA; CC 142.2).
[75]
For example, the law treats a female foreign national married to a
Swiss male national - in that case, the woman is entitled to a
residence permit after five years (art. 42 para. 3 FNIA) -
differently from a female foreign national who lives in a
concubinage with a Swiss national - in that case, the woman has no
right to a residence permit and must respect the more restrictive
conditions of art. 34 FNIA, cf. Boillet (n. 28), N 28.
[76]
For a proposal with arguments in this sense, Boillet (n. 28), N 27;
CR Cst.-Gutzwiler, art. 39 N 27.
[77]
Stychin (n. 16); Tremblay et al. (n. 20), p. 97 and p. 124.
