La personnalité juridique de l’État

Abstract

The conceptualization of the State as an entity endowed with legal personality has played a central role in the development of French and German public law, and is also one of the fundamental principles of public international law. The first theories viewing the State as a legal person emerged in the mid-19th century, and were still widely discussed at the beginning of the following century. Curiously, however, Swiss scholars were not as enthusiastic about the matter than their foreign counterparts. In Switzerland, while it is traditionally accepted that the State, the cantons and the municipalities are legal entities, neither the dogmatic basis for this personality, nor its material scope, are really clear. The present contribution examines this apparent shortfall, drawing on the various theories of the person-state developed in France and Germany, and on the concept of legal personality under public law, to examine the legal position of the state in Swiss law. It concludes that the State is a legal person governed by public law by virtue of customary law. It is argued, however, that the distinction between legal personnality under public-law and legal personality under private law must be relativized with regard to their material content. Thus, the legal personality of the State is not intrinsically different in scope from the legal personality enjoyed by private persons. In Swiss law, the personification of the State does not explain what makes it a distinct legal phenomenon, nor does it constitute a conceptual necessity. On the contrary, it is a pragmatic response to the need to make the State a center for the imputation of rights and obligations.