Art. 41 BV — Social Goals

#Doctrine

#1. Legislative History

N. 1 The entrenchment of social goals in the Federal Constitution dates back to the total revision of 1999. In its Dispatch of 20 November 1996, the Federal Council presented a concept that deliberately distinguishes between social fundamental rights directly founding individual claims and non-justiciable social goals. According to the Dispatch, the social goals, together with the purpose article (→ Art. 2 BV), the social fundamental rights, and the competence provisions, constitute the welfare-state character of the Swiss Confederation (BBl 1997 I 197 f.). In the Federal Council's conception, the social goals are a consolidation of normative content that was already expressly or implicitly contained in the former Federal Constitution (BBl 1997 I 71).

N. 2 During the consultation procedure, opinions diverged widely. Several parties and organisations — in particular the SVP, SHIV, ZSAO, and SGV — called for the article to be deleted without replacement, on the grounds that it went beyond existing law (BBl 1997 I 199). Other consultation participants, however, demanded that the social goals be developed into enforceable individual rights. The Federal Council considered both alternatives to be misguided and retained the programmatic approach (BBl 1997 I 200 f.).

N. 3 During the parliamentary deliberations of 1998, the article was controversial. In the National Council, Föhn Peter (V, SZ), as spokesperson for Minority I, moved for deletion without replacement, arguing that constitutions should not contain mere goals, and warned that the social goals would in the foreseeable future be recast as social rights. Schlüer Ulrich (V, ZH) proposed that individual responsibility be placed explicitly at the head of the article as the foundation for social action (Minority II). By contrast, Vollmer Peter (S, BE) argued that the social goals should stand as an independent pillar in the Constitution, without the restrictive references to available resources and subsidiarity. The majority followed the Federal Council's concept. In the Council of States, Aeby Pierre (S, FR, rapporteur) opposed the motion to refer back by Rochat Eric (L, VD), who had demanded a clearer separation between rights already realised and mere goals. Rhinow René (R, BL, rapporteur) justified the rejection by noting that a clean separation was factually impossible.

N. 4 As a compromise, Art. 41 contains in para. 4 the express clarification that no immediate claims to state benefits can be derived from the social goals. Letter g (promotion of children and young persons) was inserted on the motion of the parliamentary committee. Letter a on participation in social security was retained after a controversial debate in the Council of States; Federal Councillor Koller Arnold emphasised that the principle should be maintained, since the article is addressed jointly to the Confederation and the cantons. The final text was adopted by both chambers on 18 December 1998 and approved in the popular vote of 18 April 1999 together with the new Federal Constitution.

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#2. Systematic Classification

N. 5 Art. 41 BV is found in Title 2 of the Federal Constitution («Fundamental Rights, Civil Rights and Social Goals»), but in its own Chapter 3 («Social Goals»), which is clearly demarcated from fundamental rights (Chapter 1, Art. 7–34) and from social fundamental rights (which are considered part of the catalogue of fundamental rights, e.g. Art. 12, Art. 19 BV). This systematic placement is decisive for the legal characterisation of the provision: Art. 41 BV is a declaration of state objectives (also: programmatic norm), not a subjective legal guarantee (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 244 f.).

N. 6 As a declaration of state objectives, Art. 41 BV is addressed to the federal and cantonal legislators and to norm-setting authorities in general — but not directly to law-applying authorities as a basis for claims by individuals. The Federal Council underlined in its Dispatch that the catalogue of social goals, as a declaration of state objectives, makes the welfare-state dimension of Switzerland visible in concentrated form, but is addressed to the legislature and not to law-applying authorities (BBl 1997 I 198).

N. 7 Within the welfare-state framework of the Federal Constitution, Art. 41 BV occupies an intermediary position. On the one hand it supplements the social fundamental rights (→ Art. 12 BV: right to assistance in situations of need; → Art. 19 BV: right to basic education) and, on the other, the federal competence provisions in the social sphere (→ Art. 112 ff. BV: social insurance). The social goals are not a lex specialis in relation to the fundamental rights, but complementary guiding parameters for social legislation. The Federal Supreme Court has drawn this boundary sharply: no subjective rights flow from Art. 41 BV, though they do from Art. 19 BV or Art. 12 BV (BGE 129 I 12 at E. 4.3).

N. 8 With regard to international law, it should be noted that the Dispatch expressly refers to the ratification of UN Covenant I (SR 0.103.1) (BBl 1997 I 201). Art. 41 BV and UN Covenant I pursue comparable objectives (social security, health, work, education), yet Art. 13 para. 2 UN Covenant I likewise does not, according to Federal Supreme Court practice, found directly applicable individual guarantees (BGE 135 I 161 at E. 2.2). ↔ Art. 34 ff. BV (Political Rights), ↔ Art. 94 ff. BV (Economic Constitution).

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#3. Elements of the Provision / Normative Content

3.1 Paragraph 1: Six Subject Areas

N. 9 Para. 1 obliges the Confederation and the cantons to «endeavour» in six subject areas. The word «endeavour» («einsetzen») is programmatic in nature; it describes a duty of effort (Obliegenheit), not a duty of result. State action operates according to para. 1 in complement to personal responsibility and private initiative, whereby the principle of subsidiarity (→ Art. 5a BV) is explicitly anchored. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1862 ff. speak of «subsidiary state activity».

N. 10 Let. a — Social security: The goal that every person participates in social security is the guiding idea of the entire body of social insurance law and is implemented legislatively through the OASI (SR 831.10), DI (SR 831.20), UI (SR 837.0), HI (SR 832.10), and AI (SR 832.20). The principle applies to «every person», i.e. without distinction as to nationality.

N. 11 Let. b — Healthcare: The Confederation and the cantons endeavour to ensure that every person receives the «care necessary for their health». The term «necessary care» — rather than «appropriate medical treatment», as was unsuccessfully proposed in the National Council (Gross Andreas, S, ZH) — presupposes a proportionality assessment. The provision influences the interpretation of the HIA, but does not found individually enforceable claims to specific treatments.

N. 12 Let. c — Protection and promotion of the family: Families are understood as «communities of adults and children», yielding an open concept of family that is not confined to marriage. The duty to promote the family supplements → Art. 14 BV (right to marry and to have a family) and → Art. 116 BV (federal family policy).

N. 13 Let. d — Work under fair conditions: Persons capable of working should be able to support themselves «through work under fair conditions». The social goal touches on labour law (CO, LLA), but does not found a constitutional claim to a specific minimum wage. The term «fair conditions» is open to development. ↔ Art. 110 BV (Labour).

N. 14 Let. e — Housing: Persons seeking accommodation should be able to find «suitable housing for themselves and their family at affordable prices». The social goal legitimises state housing promotion (→ Art. 108 BV), but does not found a right to the allocation of a dwelling or to rent control.

N. 15 Let. f — Education and training: Children, young persons, and persons of working age should «be able to receive an education and undergo training and further training in accordance with their abilities». The Federal Supreme Court has clarified that no immediate claims can be derived from Art. 41 para. 1 let. f BV — in contrast to Art. 19 BV (BGE 129 I 12 at E. 4.3; BGE 133 I 156 at E. 3.6.4). The social goal does, however, flow as a value consideration into the interpretation of Art. 19 BV and of disability equality law (BGE 151 I 73 at E. 4.4.2).

N. 16 Let. g — Promotion of children and young persons: Letter g (inserted during the parliamentary deliberations) covers development into independent and socially responsible persons, as well as social, cultural, and political integration and health promotion. It supplements → Art. 11 BV (protection of children and young persons) and the Convention on the Rights of the Child (SR 0.107). The Federal Supreme Court has not yet conclusively addressed the demarcation between Art. 11 BV and Art. 41 let. g BV; legal scholarship agrees that let. g likewise does not found a right of action.

3.2 Paragraph 2: Social Protection against Risks

N. 17 Para. 2 contains an independent catalogue of eight social risks: old age, invalidity, illness, accident, unemployment, maternity, orphanhood, and widowhood. Compared with para. 1, the obligation incumbent on the Confederation and the cantons in para. 2 is formulated more directly («endeavour to ensure that every person… is covered»). This catalogue corresponds in substance to the current social insurance system. The express mention of maternity confirms — as a social goal — the mandate for maternity insurance (→ Art. 116 para. 3 BV).

3.3 Paragraph 3: Reservation of Resources and Competences

N. 18 Para. 3 stipulates two cumulative reservations: constitutional competences and available resources. The resource reservation («available resources») explains why no enforceable benefit claims follow from the social goals: the reasonableness of state benefits is subject to fiscal policy considerations and left to the democratic discretion of the legislature. The competence reservation makes clear that Art. 41 BV creates no new competences — the Confederation and the cantons each act within the framework of their existing constitutional competences. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 729, emphasise that para. 3 expressly entrusts implementation to a political balancing exercise.

3.4 Paragraph 4: Non-Justiciability

N. 19 Para. 4 is the central normative statement of Art. 41 BV: «No direct claims to state benefits may be derived from the social goals.» The word «direct» («unmittelbar») does not preclude a reflexive effect on the interpretation of other norms, but direct, judicially enforceable individual claims based solely on Art. 41 BV are excluded. The Federal Supreme Court has confirmed this in consistent practice (BGE 129 I 12 at E. 4.3; judgment 9C_736/2011 at E. 2.3).

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#4. Legal Effects

N. 20 Since Art. 41 BV confers no subjective rights, the provision has three types of legal effect:

1. Legislative mandate: Art. 41 BV obliges the federal and cantonal legislators, within the framework of their competences and resources, to work towards the attainment of the social goals. Inaction on the part of the legislature may be challenged politically but cannot be enforced judicially.

2. Interpretive directive: The social goals are to be drawn upon as value considerations in the interpretation of other constitutional provisions and of statutory law. The Federal Supreme Court has relied on Art. 41 para. 1 let. f BV as a value consideration in interpreting the Disability Discrimination Act (BGE 151 I 73 at E. 4.4.2).

3. Legitimising basis: Art. 41 BV legitimises state regulations in the social sphere (tenant protection, employee protection, social assistance) in relation to interferences with fundamental rights, in particular with economic freedom (↔ Art. 27 BV), by constituting a public interest in social security (BBl 1997 I 295).

N. 21 Art. 41 BV produces no legal effect as a basis for:

• individual claims to social assistance benefits (for this purpose: → Art. 12 BV);
• individual claims to basic education (for this purpose: → Art. 19 BV);
• direct restrictions on private-law actors (no horizontal effect).

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#5. Contested Issues

N. 22 Scope of the interpretive directive: In legal literature, there is controversy over how far the function of Art. 41 BV as an interpretive directive extends. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1880 adopt a rather restrained position: the social goals are primarily addressed to the legislature and may not be used to broaden the content of justiciable fundamental rights. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 731, by contrast, emphasise that the social goals are to be drawn upon as interpretive guidelines for the social fundamental rights and for the proportionality review under Art. 36 BV. In BGE 151 I 73 at E. 4.4.2 the Federal Supreme Court expressly relied on Art. 41 para. 1 let. f BV as a value consideration in interpreting the Disability Discrimination Act, which tends to align with the broader view.

N. 23 Principle of subsidiarity and the state duty to act: The primacy accorded to individual responsibility («in complement to personal responsibility and private initiative») was highly controversial during the legislative process. Schlüer Ulrich (V, ZH) demanded that self-responsibility be incorporated into the Constitution as a principle — not merely as a supplementary formula. Engelberger Edi (R, NW) stressed that individual responsibility must be the foundation of social action. Vollmer Peter (S, BE) countered that the formula reduced the social goals to a mere declaration. Today, legal scholarship predominantly interprets the subsidiarity formula as a concretisation of → Art. 5a BV, not as a qualitative restriction of the state duty to act (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 249).

N. 24 Relationship to UN Covenant I: Jutzet Erwin (S, FR) argued in the National Council that para. 4 degraded the social goals to a mere declaration — referring to the international obligations arising from UN Covenant I. Legal scholarship is divided: on the one hand, it is argued that Art. 13 para. 2 UN Covenant I is not directly enforceable against federal statutes given the Federal Supreme Court's standard of review under Art. 190 BV (BGE 135 I 161 at E. 2.2). On the other hand, it is argued that UN Covenant I can serve as an aid to interpretation of the social goals and can intensify state duties to act without creating direct claims. The Federal Supreme Court has not yet conclusively resolved this question; the trend is towards classifying UN Covenant I provisions as not directly applicable insofar as they are programmatic in nature.

N. 25 Cantonal social rights: Some cantonal constitutions — notably Art. 29 para. 2 KV/BE — go beyond Art. 41 BV and establish direct cantonal social rights. The Federal Supreme Court acknowledged in BGE 129 I 12 at E. 4.4 that the new Federal Constitution has adopted the distinction, developed in more recent cantonal constitutions, between claim-founding social rights and programmatic social goals. Whether and to what extent cantons are entitled to guarantee more extensive social rights has in principle been affirmed (→ Art. 3 BV: residual cantonal competence). Restrictions under federal law exist insofar as federal competences preclude otherwise (→ Art. 49 BV).

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#6. Practical Notes

N. 26 Demarcation in law application: Anyone wishing to rely at constitutional level on a state duty to provide a social benefit must examine whether a justiciable social fundamental right applies (→ Art. 12 BV: assistance in situations of need; → Art. 19 BV: basic education). Art. 41 BV is not suitable as a basis for an appeal before the Federal Supreme Court. The Federal Supreme Court does not entertain appeals based solely on Art. 41 BV (cf. judgment 9C_736/2011 at E. 2.3: Art. 41 BV contains «no directly applicable individual guarantees in the field of social insurance law»).

N. 27 Art. 41 BV as an aid to interpretation in law application: In legal practice, Art. 41 BV may be invoked as an aid to interpretation and as a teleological argument when provisions of social law require interpretation. The Federal Supreme Court has used Art. 41 para. 1 let. f BV and the value consideration of «equal educational opportunity» in interpreting the Disability Discrimination Act (BGE 151 I 73 at E. 4.4.2). Representatives in social insurance law may invoke Art. 41 BV in a supporting role within the framework of an interpretation of UN Covenant I guarantees consistent with international law.

N. 28 Constitutional justification of state measures: Art. 41 BV may, as an expression of the public interest in social security, be incorporated into the balancing exercise in the proportionality review under → Art. 36 BV. The Federal Council set out in its Dispatch on the Economic Constitution that the social goals establish the state's social policy responsibility and the social policy integration of the economy insofar as market mechanisms do not produce socially acceptable outcomes (BBl 1997 I 295 f.).

N. 29 Particularities in the federal structure: Since para. 3 expressly names constitutional competences as a limit, the implementation of the social goals always requires examination of whether the Confederation or the cantons are substantively competent. The social goals bind both levels of the state equally, but to differing degrees depending on the specific task at hand. In areas without federal competence (e.g. large parts of social assistance), implementation rests exclusively with the cantons (→ Art. 115 BV: support of persons in need). Direct federal intervention in favour of cities and agglomerations — a corresponding «cities paragraph» in Art. 41 was discussed in the National Council but received a controversial reception (Keller Rudolf, D, BL; Fehr Hans, V, ZH) — was ultimately not enshrined in the Constitution during the parliamentary process.

Case Law

#Leading Decisions on Non-Justiciability of Social Goals

#Basic Interpretation of Art. 41 para. 4 Cst.

BGE 129 I 12 of 7 November 2002 Core decision on the distinction between justiciable fundamental rights and non-justiciable social goals in the field of education. Relevance: Confirms the strict separation between the justiciable entitlement to free basic school education resulting from Art. 19 Cst. and the social goals under Art. 21 Cst.

«Art. 41 para. 1 lit. f Cst. – like all other social goals – gives rise to no direct entitlements (cf. Art. 41 para. 4 Cst.). Rather, this provision is addressed as a programmatic norm to the legislators of the Confederation and the cantons.»

BGE 133 I 156 of 7 May 2007 Clarification of the interpretation of Art. 41 para. 1 lit. f Cst. in the context of educational entitlements. Relevance: Emphasises the strict non-justiciability of social goals even in areas where they thematically border on justiciable fundamental rights.

«Art. 41 para. 1 lit. f Cst. – from which provision (as a social goal) no direct entitlements can be derived in any case – does not go beyond Art. 19 Cst. with regard to the question of transport costs.»

#Social Goals as Interpretative Aid and State Objectives

#Significance for Legislation

BGE 133 I 206 of 1 June 2007 Judgment on tax equality and social security. Relevance: Shows how social goals as state objectives can be taken into account when assessing the proportionality of state measures.

«The social goals of the Federal Constitution oblige the Confederation and the cantons to work towards achieving these goals within the framework of their constitutional competences and available resources.»

#Relationship to Other Constitutional Provisions

9C_736/2011 of 7 February 2012 Judgment on disability insurance and social security. Relevance: Illustrates how Art. 41 Cst. is used as a constitutional mandate in interpreting social insurance law provisions.

«The social goals enshrined in Art. 41 Cst. constitute mandates to the Confederation and the cantons, but cannot be used to establish individual entitlements to benefits.»

#Thematic Case Law Groups

#Social Security (Art. 41 para. 1 lit. a and para. 2 Cst.)

BGE 140 V 449 of 18 August 2014 Decision on family allowances. Relevance: Confirms the implementation of social goals by the legislature in the area of family security.

«Family allowances under the FamAG constitute a concrete legislative implementation of the social goals enshrined in Art. 41 Cst., without any further constitutional entitlements being derivable therefrom.»

BGE 148 V 84 of 9 November 2021 Judgment on the insured earnings of working students. Relevance: Shows the practical implementation of social goals in accident insurance law.

«Art. 41 Cst. obliges insurance carriers to provide adequate social security without, however, constitutionally determining concrete benefit standards.»

#Health Care (Art. 41 para. 1 lit. b Cst.)

BGE 127 I 6 of 1 January 2001 Fundamental decision on involuntary medication. Relevance: Balances the social goal of health care with other fundamental rights and shows the limits of state health care.

«The social goal of Art. 41 para. 1 lit. b Cst. obliges the state to provide the care necessary for health, but does not justify the violation of other fundamental rights.»

BGE 130 I 16 of 7 January 2004 Continuation of case law on involuntary medication. Relevance: Clarifies the relationship between the social goal of health care and human dignity.

«The realisation of the social goals under Art. 41 Cst. finds its limits in the other constitutional guarantees, in particular in respect for human dignity.»

#Family Protection and Support (Art. 41 para. 1 lit. c Cst.)

BGE 135 I 143 of 2 February 2009 Judgment on family reunification of foreigners. Relevance: Shows the consideration of social goals in residence law decisions.

«Art. 41 para. 1 lit. c Cst. reinforces the protection and promotion of the family as a constitutional mandate, without, however, establishing concrete entitlements in foreign nationals law.»

#Education and Training (Art. 41 para. 1 lit. f and g Cst.)

BGE 129 I 12 of 7 November 2002 Leading decision on social fundamental rights in the field of education. Relevance: Defines the distinction between justiciable educational entitlements (Art. 19 Cst.) and educational goals (Art. 41 para. 1 lit. f Cst.).

«Art. 41 para. 1 lit. f Cst. does not establish individual entitlements to specific educational services, but obliges the communities to create corresponding opportunities.»

BGE 133 I 156 of 7 May 2007 Application of educational goals to secondary school education. Relevance: Clarifies the scope of educational goals for secondary schools.

«The social goals of Art. 41 Cst. apply to the entire education system, without, however, creating entitlements going beyond the minimum standards guaranteed in Art. 19 Cst.»

#Methodological Notes on Case Law

#Test Standard for Social Goals

The Federal Supreme Court applies a three-stage test standard when assessing Art. 41 Cst.:

1. Constitutional mandate: Art. 41 Cst. is primarily addressed to the legislators of the Confederation and the cantons
2. Resource reservation: Implementation takes place within the framework of available resources (Art. 41 para. 3 Cst.)
3. Non-justiciability: No direct entitlements to benefits can be derived from Art. 41 Cst. (Art. 41 para. 4 Cst.)

#Distinction from Justiciable Fundamental Rights

Case law draws a strict line between the social goals of Art. 41 Cst. and justiciable fundamental rights:

• Art. 19 Cst. (basic school education) establishes concrete entitlements, Art. 41 para. 1 lit. f Cst. only state objectives
• Art. 13 Cst. (privacy) protects individually, Art. 41 para. 1 lit. b Cst. obliges collectively
• Art. 8 Cst. (legal equality) is enforceable, Art. 41 Cst. is programmatic

#Current Developments

More recent decisions show a tendency to use social goals as interpretative aids in the concretisation of other constitutional provisions, without abandoning their non-justiciability. This development is particularly evident in the areas of social insurance law and education law.