Part II
Historical Experiences

4. French Constitutional Law  

by Denis Baranger


This chapter aims at providing readers with an introduction to French constitutional law and, more generally, to France’s constitutional tradition. France’s constitutional culture is dominated by a paradox: it is a revolutionary culture with frequent constitutional changes and amendments, but also some remarkably stable key characteristics. Amongst these is the establishment of a republican culture in a country governed for centuries by monarchs. This may explain France’s very special position with regard, in particular, to systems of government. While France chose parliamentarism during the nineteenth century, the 1958 Constitution – parliamentarism during the nineteenth century, the 1958 Constitution – an embodiment of the ideas of General de Gaulle – is characterized by an insistence on presidential powers that many observers compare with a presidential monarchy. This is just one, albeit maybe the most conspicuous, of France’s constitutional paradoxes.

Although most countries in the world now have a constitution, the core notions, institutions, and underlying ideas of constitutional law – also called ‘constitutionalism’ – have been elaborated in certain specifi c historical contexts, mostly in Britain, continental Europe and the United States in the course of the seventeenth and eighteenth century. In this regard, France plays a particular role in the history of constitutional law. It has drawn most of its founding ideas and institutions from England and the United States. In many regards, thus, the contribution of the French constitutional tradition can appear as a limited one; one could even say that France has an impressive record of failures and drawbacks in many dimensions of its constitutional experience, such as its long- lasting incapacity to build up a form of government adjusted to its own needs. Yet the French approach to constitutional law is also marked by a focus on republican principles understood in a radical way. The keyword to this approach to constitutionalism – often derided by non- French observers as unrealistic or even utopian – is collective political autonomy. As far as constitutional law is concerned, the meaning of the French revolution can be summed up in one proposition: that law must be the result of political activity on the part of the citizenry at large, and that this political activity ought to be the ultimate source of law- making. This is as universal a proposition as it gets in the fi eld of constitutional law and as a matter of fact, despite all the shortcomings of the French constitutional experience, this is a lesson that was more clearly understood in revolutionary France than in eighteenth- century Britain or during the American revolution.

Since 1789, France has been governed under several monarchies (1791, 1814, 1830) and two empires (1804– 1814 and 1815, 1852– 1870). It has known ultra- democratic (1793) as well as fairly reactionary (1795, 1814, 1830, 1851) governments, not to mention the infamous Vichy regime (1940–1944). Instability and diversity seem to be the key features of French constitutional history. Yet there seems to be an underlying principle of continuity that – beyond several experiments going in other directions – unites the revolutionary era (1789– 1799) and the republican parliamentary regimes established since 1875: France has approached constitutionalism from the point of view of the consolidation of republicanism (collective self- government of citizens) and individual human rights, autonomy and dignity. There has been no small amount of interest in the mechanics of government, but the abundant imagination of French constitution-drafters has not given birth to an effective and sustainable model of government. After a long chain of dismal experiments, France has reluctantly adhered to parliamentary government, while never renouncing its revolutionary principles: national sovereignty, law as expression of the general will, and so on.

There is no guarantee that the Westminster approach to separation of powers on one side, and the French concern for national sovereignty on the other can merge harmoniously. As early as 1778, Turgot – a French philosopher and civil servant – had blamed the constitutions of the newly independent north American states for ‘establishing different bodies’ (separating powers) while what mattered most in his view was to ‘bring all the authorities into one, that of the nation’. 1 This paramount concern for unity is key to French constitutional history. Legitimacy comes fi rst; other liberal concerns – such as the separation of powers – only come second. Political liberty is fi rst and foremost guaranteed by granting power to the ‘nation’, thus giving political freedom to the collective body of citizens. The 1789 Declaration of the Rights of Man and Citizen is as much a catalogue of classical liberal individual rights as it is the palladium of national sovereignty (Article 3); it insists on the separation of powers (Article 16) as well as on the principle that every parliamentary statute (in French: loi ) expresses the general will (Article 6). The presence of all these values in the 1789 Declaration, as well as the absence of other ones – such as religious transcendence – is evidence of a republican constitutional philosophy in which man asserts himself as the bearer of rights while at the same time he claims to be a citizen whose participation in public life can only be fulfi lled in a certain type of institutionalized political community: a ‘constitution’ based on the ‘separation of powers’, a ‘guarantee of rights’ and an autonomous polity in which the sovereign is the supreme legislator.

In the French tradition of public law, loi being the expression of the general will, any loi , however banal in its content, is thus ‘higher law’. During the Third Republic (1875– 1940), the French lawyer Raymond Carr é de Malberg (1861– 1935) expressed some dismay at the fact that the authority of the written constitution was not suffi ciently guaranteed: the constitution, he thought, was not effectively entrenched since it could be amended by the same assemblies which were entrusted with ordinary legislative power. 2 The entrenched constitution was not as much a ‘higher law’ as in, say, the United States. Be that as it may, what really mattered in fact was that, symmetrically, ‘ordinary’ statutes were treated with greater reverence. As far as France was concerned, parliamentary law- making was in fact ‘higher law- making’. Especially, there was no provision in the constitution for a mechanism of constitutional review of statutes. In American constitutional law, national sovereignty and legislative supremacy are not intertwined. ‘We the people’ have enacted the 1787 constitution and the constitution alone. Congress is only a representative body in a ‘constitution of limited powers’. Conversely, in the French tradition prior to 1958, statutes were granted a special dignity while written constitutions only enjoyed a somewhat diminished level of prestige. This is why it took so long for France to embrace judicial review and to follow the model set by Marbury v. Madison in the United States in 1803.

As a whole, however, the fact that France began its modern constitutional history by adopting a declaration of rights – as a preamble to enacting a constitution – shows that it had engaged into a process of promoting political autonomy in the sense of the capacity to ‘form, revise and rationally pursue its conception of what gives value to its collective life’. The 1789 Declaration also provided the nation with ‘a public conception of justice’ on which to act. 3 That the Declaration has been constantly in the background, and, since 1971, a part of the body of positive rules applied by the courts, is an illustration of this continuity of purpose.