A Farewell to Thomas Fleiner

Cheryl Saunders

Melbourne Law School

I was very saddened to hear of the passing of Thomas Fleiner on 24 November. Thomas was a dear friend and close colleague, with whom I have shared many ideas and experiences over decades, and I regret I will not do so again. What follows is a personal memoir, which covers the time of our professional association and does not purport to deal with other aspects of what was a long, significant, and multi-faceted life.  It is appropriate that it is published on the blog of the International Association of Constitutional Law (IACL), to which Thomas was so committed over a long period of time.

Thomas Fleiner was a Swiss and comparative public lawyer, with particular expertise in federalism and other forms of the decentralised organisation of the state. With degrees from Zurich and Yale, he became a professor at the University of Fribourg from 1971 and the founding Director of the Institute for Federalism in Fribourg from 1984. Under his directorship and, latterly, with his partner Lidija Basta-Fleiner, the Institute developed from a body with a primary focus on Swiss federalism and intercantonal relations to one which also embraced comparative federal constitutional law, broadly understood and on a global scale. As Director of the Fribourg Institute, Thomas also became a Director of the International Association of Centers of Federal Studies (IACFS), in which he played an active role. In 1981, he was a founding member of the IACL, of which he subsequently became President and then President Emeritus. He retired from his posts in Fribourg in 2008 but continued to lead an active scholarly life up until the last few years.

As this brief account of his career suggests, Thomas Fleiner was a leading member of the founding generation of the contemporary discipline of comparative constitutional law. The Institute of Federalism that he led from 1984 is flourishing in both its roles, as is the international summer school he established within the Institute. The two international associations in which he was involved at a foundational stage, IACFS and the IACL, remain leaders in their respective fields. The IACL set the pattern for global constitutional law, with an executive drawn from countries across the world: the picture of the original executive at its first meeting in Belgrade makes the point. Founded as a mechanism for dialogue between east and west during the cold war, Thomas played a key role in leading its transition to a body with what is now a more familiar comparative mandate following the fall of the Berlin Wall. As an individual working in the field of comparative constitutional law he was a dynamic speaker, a prolific author, and a committed advocate of causes he considered important.

The original executive of the IACL, Belgrade, 30 September 1981

With hindsight, Thomas Fleiner did much to shape my own approach to comparative constitutional law. Through him, I was introduced to both IACFS and the IACL and benefitted greatly from my association with them. Neither limited its activities to the so-called ‘usual suspects’, about which current discourse frets. Both had a global reach. Both understood and respected the realities of diversity, notwithstanding the pace of globalisation. Both sought, and continue to seek, a modus operandi that enables the range of global constitutional experience to be taken adequately into account. One vignette that remains with me still, from around the time of Thomas’ presidency, offers an illustration: highly engaging multi-day meetings of the Executive Committee in the Fleiner family chalet in Dissentis to settle a program for the next world congress that would be meaningful to all participants in terms of issues, concepts, and perspectives. Not every international meeting can be prepared in such a setting but the ambition of responding effectively to the diversity of constitutional experience is a key to success and gratifying to pursue.

Like all of us, Thomas Fleiner came to comparative public law with deep knowledge and experience of a particular legal system and constitutional tradition: in his case, the civil law in the constitutional context of Switzerland. Like the best comparativists, he was aware of the potential for the familiar to skew understanding and approached every comparative exercise with an open and curious mind and a genuine interest in principles and practices in operation elsewhere. For a common lawyer, this made him a marvellous interlocutor. Through discussions over decades, we shared views on the underlying assumptions of our respective systems that had explanatory power. While we rarely wrote together, a joint piece in 2013 on ‘Constitutions Embedded in Different Legal Systems’ (in a volume we co-edited with Mark Tushnet) reflects some of our shared insights. Several of Thomas’ major works also were translated into English under the auspices of the Centre for Comparative Constitutional Studies at Melbourne Law School: Constitutional Democracy in a Multicultural and Globalised World, and What are Human Rights.

It is a hazard of the discipline of comparative law that close friends and colleagues often live far away and communication may fail over time. I very much regret that I lost contact with Thomas over the last few years, which I hope were as fulfilling for him as possible. It is some consolation that rich memories remain, some of which I have tried to capture here.

Cheryl Saunders AO is Laureate Professor Emeritus at Melbourne Law School, a President Emeritus of the International Association of Constitutional Law, and a former President of the International Association of Centres for Federal Studies. She is the founding Director of the Centre for Comparative Constitutional Studies at Melbourne Law School.

Suggested citation: Cheryl Saunders, ‘A Farewell to Thomas Fleiner’ IACL-AIDC Blog (19 December 2023) https://blog-iacl-aidc.org/2023-posts/2023/12/18/a-farewell-to-thomas-fleiner