Jump to Content Jump to Main Navigation
Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Constitutional Council of France (Conseil Constitutionnel)

France [fr]

Guillaume Tusseau

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 04 August 2020

Judicial review of legislation — Legislative oversight of the executive — Checks and balances

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Historical Background

1.  Since the Revolution, French constitutionalism has established an original pattern of constitutional guarantee. Fearing that judges might try to curb the legislator’s will, as the Ancien Régime courts of justice had done by invoking ‘fundamental laws’, the French constituants established that ordinary judges would not be allowed ‘directly or indirectly to take any part in the exercise of legislative power nor to prevent or suspend the execution of the decrees of the legislative body, sanctioned by the King’ (16–24 August 1790 Act, Title II, Art. 10 (Fr)). This initial refusal of judicial constitutional review led the French constitutions to explore constitutional review by the Executive, by the Legislative itself and even by the People (Tusseau (2013)). Sieyès’ attempt to establish an ad hoc institution called the ‘jurie constitutionnaire’ that would serve as a cassation court for constitutional issues, a source of proposals for the improvement of the Constitution, and a court of natural equity in case positive law erred, was not successful until the Constitution of the Fourth Republic. In 1946, a Constitutional Committee was established. Its main function was not so much to ensure the primacy (supremacy/primacy) of constitutional norms as to determine whether the enactment of a statute needed a constitutional amendment. This attempt was doomed to fail. As under the Third Republic, the nation’s sovereignty resolved itself into the representatives’ sovereignty (Carré de Malberg).

2.  In the minds of the drafters of the 1958 Constitution, the Conseil Constitutionnel was meant to introduce crucial changes. According to Michel Debré, ‘The creation of the Conseil Constitutionnel manifests the will to subordinate the law, that is to say the will of Parliament, to the superior rule laid down by the Constitution. It is neither in the spirit of the parliamentary system, nor in the French tradition, to give judges, that is to say to give every litigant, the right to question the value of the law. The project has therefore devised a special institution that can only be set in motion by four authorities: the President of the Republic, the Prime Minister, and the Presidents of the Houses of Parliament. To this Conseil other assignments were given, including the review of Parliament’s standing orders, and the litigation related to contested elections, in order to avoid the scandal of partisan invalidations. The existence of this Conseil and the authority that must be granted to it represented an important and necessary innovation. The Constitution thus created a weapon against the deviation of the parliamentary system’.

B.  Composition

4.  The Conseil consists of the former Presidents of the Republic and nine appointed members (selection of judges). The latter serve non-renewable terms of nine years (terms of office of judges). One third of them are appointed every three years. Three—among whom is the president of the Conseil—are appointed by the president of the Republic, three by the president of the National Assembly, and three by the president of the Senate. Until 2008, these nominations went totally uncontrolled. Since that date, the parliament’s commissions have been allowed to veto a proposition with a supermajority of three-fifths. No specific qualificationis required, especially in terms of professional expertise. The functions are incompatible with those of a minister and a member of parliament, or any elective function or other professional activity. The members cannot be revoked or renewed. They have an obligation to remain silent on their activities and, generally, to avoid any behaviour that may jeopardize the independence of the judiciary ordignity of their functions. It is for the Conseil itself to decide whether one of its members is in a situation of incompatibility or has violated their obligations. In spite of the fact that, when compared to international standards, the procedure of appointment does not really offer any serious guarantee for the appointment of qualified and independent persons, the dominant feeling is that no major mistake has been made, and that no major malfunctioning of the Conseil has been observed. However, the presence of the former presidents of the Republic is highly debated, especially since three former presidents have decided to be active members of the Conseil. This results in one appointing authority possibly interacting with persons they have appointed, who may feel somehow indebted to them. Their profiles show that the members have included former politicians, former administrative or judicial judges, law professors, senior civil servants, and one sociologist. This is said to have guaranteed that the Conseil avoided being too legalistic and too intrusive when difficult political choices were at stake. The partial renewal by thirds has also ensured smooth evolution, combining change and stability, so that a consistent jurisprudence has progressively developed. It has emerged all the more independently becausethe rhythm of change in membership does not follow the same rhythm as that of the political authorities. Since 1981, when a leftist majority took over, the regular alternations of the appointing authorities have ensured that the Conseil was not for too long a period dominated by right-wing or left-wing appointed persons.

C.  Jurisdiction

5.  The Conseil’s jurisdiction may be divided into four broad categories.

1.  Regulating the Expression of Popular Suffrage

6.  The Conseil supervises the major political consultations of the people. It contributes to the organization of the presidential and legislative elections and referenda (plebiscite), monitors the electoral process, announces the results, and is in charge of the ensuing litigation (presidential systems). The Conseil is also responsible for deciding on the incompatibilities between a parliamentarian’s mandate and other activities, as well as for deciding on the temporary or definitive incapacity of the president of the Republic to discharge their functions.

2.  Advising Constitutional Authorities

7.  One of the functions of the Conseil is to serve as an advisor. Regarding the emergency powers provided by Art. 16 of the Constitution (types and effects of emergency), the Conseil is consulted as to the existence and continuance of the conditions for a proper use of these powers, as well as to the content of all the measures that are taken by the president.

3.  Rationalizing Parliamentarianism

8.  A major innovation of the 1958 Constitution has been the establishment of a limited sphere of action for parliament. Whereas Art. 34 enumerates the subjectmatters the legislator is entitled to deal with (Constitution of the French Republic: 4 October 1958 (as amended to 23 July 2008) Main Text, Art. 34 (Fr)), Art. 37 provides that ‘[m]atters other than those coming under the scope of statute law shall be matters for (administrative) regulation’ (Constitution of the French Republic: 4 October 1958 (as amended to 23 July 2008) Main Text, Art. 37 (Fr)). This is part of the general project for rationalizing French parliamentarianism (rationalized parliamentarism). In case a statute is passed that encroaches on the executive’s jurisdiction, the government is entitled to ask the Conseil Constitutionnel for a ‘declassification’ of the said provisions. These are not abrogated, but can be modified by the government. A similar procedure can be invoked by the authorities of overseas collectivities to protect the competences they have been granted against infringement by the metropolitan legislator (Constitution of the French Republic: 4 October 1958 (as amended to 23 July 2008) Main Text, Art. 74 (Fr)). In order for the separation between the respective domains of the legislator and the executive to be respected, the Conseil may also determine to which domain a provision belongs if, during the legislative process, the government and the president of a house of parliament disagree on the matter (Constitution of the French Republic: 4 October 1958 (as amended to 23 July 2008) Main Text, Art. 41 (Fr)). As per Art. 39, the Conseil is also competent to determine whether a government bill complies with the legislative procedure, as provided in the Organic Act on Legislation (No. 2009–403 15 April 2009 (Fr)), if the parliament and government do not agree on the matter.

4.  Reviewing the Constitutionality of Legislation

9.  The Conseil’s most significant function in the French statute-centred (légicentriste) context is that of reviewing the constitutionality of legislation.

10.  One could intuitively state that the standard of constitutional review is the constitution—ie the constitutional text strictly understood. However, this standard is known to have grown into a wider ‘constitutionality block’. In its 70–39 DC and its more famous 71–44 DC rulings, the Conseil used the preamble to the constitution as a source of constitutional law (preamble). As this preamble mentions the attachment of the French people to the French Declaration of the Rights of Man and of the Citizen (1789), ‘confirmed and complemented’ by the preamble to the constitution of 1946, these two texts have also been given formal constitutional value. As a consequence, both civil and political ‘first generation’ rights, and economic and social ‘second generation’ rights have been granted fundamental legal value. Because the 1946 Preamble uses the expression ‘fundamental principles acknowledged in the laws of the Republic’, this undefined category has also been constitutionalized. It has allowed the Conseil to establish unwritten constitutional norms, such as the principle of judicial independence, freedom of association, the specificity of juvenile justice, etc. The Conseil has also identified other principles and objectives having constitutional value (eg the fight against tax evasion, the protection of the public order, the pluralism of ideas, thoughts, and opinions). In 2005, the Charter for the Environment (implementation and enforcement of environmental rights) was added to the standards of constitutional review. Organic acts, which develop constitutional provisions, do not have constitutional value. Nevertheless, the legislator has to abide by them. Conversely, the Conseil has refused to make international conventions prevail over national legislation (74–54 DC ruling (Fr)). Indeed, it contends that this function belongs to the ordinary judges. While the Cour de cassation rapidly accepted to review the ‘conventionality’ of statutes (24 May 1975, Société des cafés Jacques Vabre (Fr)), it took fourteen years for the administrative Supreme Court to accept it (Conseil d’Etat, 20 October 1989, Nicolo (Fr)). At the end of his incumbency as president of the Conseil in 2016, Jean-Louis Debré suggested that exercising conventionality review might be the next step in the evolution of the Conseil Constitutionnel’s powers.

11.  The objects of constitutional review belong to two categories. The constitutionality of administrative and private norms can be assessed by ordinary judges. That of organic acts and the standing orders of the two Houses of Parliament are mandatorily controlled by the Conseil Constitutionnel before they come into force. This ensures that the pouvoirs constitués, and especially parliament, will not be able to escape the constraints that the pouvoir constituant designed in 1958 to put an end to parliamentary sovereignty. In 2008, a new case of automatic ex ante review was established regarding the legislative proposals that are drafted in order to be submitted to a referendum (direct democracy) through the process of ‘minority initiative’ (Constitution of the French Republic: 4 October 1958 (as amended to 23 July 2008) Main Text, Art. 11 (Fr)). Other, ordinary, statutes may be referred to the Conseil Constitutionnel. Until the constitutional amendment of 2008, this facultative ex ante review was the only procedure to assess the validity of a statute. Moreover, only constitutional authorities could require this control. From 1958 to 1974, the President of the Republic, the Prime Minister, the President of the National Assembly, and the President of the Senate were the only authorities that enjoyed this prerogative. As the first three shared the same political views and had almost no reason to question the validity of their own actions, this resulted in very few referrals. In 1974, 60deputies and 60senators were also entitled to require constitutional review. Granting this right to the opposition resulted in more numerous saisines, and considerably developed constitutional justice. About 20rulings per year are rendered using this procedure. A similar ex ante review is possible for international conventions. In these cases, the Conseil has one month, which can be shortened to eight days, to hand down its decision. The Conseil has interpreted its own competence in a restrictive way. This is why it refuses to control the validity of the statutes that are directly adopted by the people through referenda (62–20 DC ruling (Fr)). It has also refrained from controlling the (supra)constitutionality of constitutional amendments (2003–469 DC ruling (Fr)). This allows the pouvoir constituant to override a ruling of the Conseil.

12.  If the Conseil concludes that the text is constitutional, it can be promulgated and come into force, or be submitted to the purported referendum, depending on the case. If it is declared unconstitutional, in totality or in part, it cannot. In case of a partial invalidity, the provisions that can be severed from the unconstitutional ones can be promulgated. The Conseilensuresthat parliament respects its own competence and does not encroach on the organic legislator’s jurisdiction nor grant too much discretionary power to other legal actors, and that the procedure following which the text isadopted is the correct one. It also controls the content of the text, and chieflythat human rights are respected (Vedel (1996), (1997); Drago; Rousseau). In thecase of the latter, the Conseil has been adamant that ‘the constitution does not confer on the Conseil Constitutionnel a general or particular discretion identical to that of parliament’ (74–54 DC ruling (Fr)). As a consequence, it mostly quashes a statute when the balance between constitutional concerns (fundamental rights, constitutional objectives, etc.) results in an irrational or disproportionate curtailment of one of them. The Conseil has not blocked major reforms such as the nationalizations of private firms (81–132 DC and 82–139 DC rulings (Fr)) or, a few years later, the privatization of public firms (86–207 DC ruling (Fr)). As to same-sex marriage (same-sex marriage / registered partnership), it has made it clear that it would not quash a purely heterosexual definition of marriage (2010–92 QPC ruling (Fr)), nor would it quash the legislation on same-sex marriage (2013–669 DC ruling (Fr)). In both cases, it has considered that it was up to the legislator to make such decisions. This general attitude of self-restraint contributes to alleviating possible accusations of ‘gouvernement des juges’.

13.  From a quantitative and more marginal viewpoint, the Conseil is also competent to review the constitutionality of several normative acts of overseas collectivities. The ‘lois du pays’ that can be adopted by the authorities of New Caledonia in matters that are normally part of parliament’s competence can be reviewed following a facultative ex ante procedure.

14.  Although it has commonly been said to be satisfactory, especially in terms of fundamental rights protection, this system has remained problematic. Indeed, ordinary judges are allowed, on the request of ordinary litigants, to set aside a statute that does not comply with an international norm, whereas the Conseil Constitutionnel, which enjoys a monopoly to quash a statute for its incompatibility with the constitution, can only do so before it is promulgated, and only at the request of a few political actors. Once a statute has escaped this control, its constitutionality can never be questioned. This may be a consequence of the fact that the statute was adopted before the Conseil was created, that the Conseil has not been asked to review its constitutionality, or that, in spite of reviewing the text, its unconstitutionality only appeared when it was concretely applied afterwards. In 1989 and 1993, Robert Badinter, then President of the Conseil, who had done much as Minister of Justice to ensure the access of ordinary litigants to the European Court of Human Rights (ECtHR), unsuccessfully tried to have a constitutional amendment adopted. This was only achieved in 2008, when the ‘priority preliminary ruling on the issue of constitutionality’ (question prioritaire de constitutionnalité—QPC) was established. Two considerable changes have thus been made. Firstly, it is possible for ordinary citizens to question the validity of their representatives’ actions. Secondly, once a statute has been enacted, it is no longer immunized against any control. Concretely, ‘[i]f, during proceedings in progress before a court of law, it is claimed that a legislative provision infringes the rights and freedoms guaranteed by the constitution, the matter may be referred by the Conseil d’Etat or by the Cour de Cassation to the Conseil Constitutionnel’ (Constitution of the French Republic: 4 October 1958 (as amended to 23 July 2008) Main Text, Art. 61–1 (Fr)). The litigant who wants to invoke the unconstitutionality of a statute needs to prove that the statute applies to the suit, that it has never been declared constitutional by the Conseil Constitutionnel (or, if itis the case that it has been declared constitutional, that the circumstances have changed—see eg 2010–14/22 QPC ruling (Fr)), and that the question is not devoid of any seriousness. If the judge is satisfied that these cumulative conditions are met, they immediately transfer the file to the Supreme Court, which acts within three months as a second filter for the demand. After a period of three months, the Conseil Constitutionnel is automatically seized. It has been feared that this procedure may in practice deter people from sending questions to the Conseil, and that this may make it impossible for thenew guarantee to be effective. In practice, the two supreme courts have progressively adopted a cooperative attitude. Once the question has been transferred, the Conseil has three months to decide, following a truly adversarial procedure and after a public oral hearing (Rules of Procedure as to Proceedings Before the Conseil Constitutionnel on Applications for a Priority Preliminary Ruling on the Issue of Constitutionality (Fr)). This is quite a quick procedure. Consequently, as of 1 July 2016, 550 QPC decisions had been handed down. Whereas within the framework of ex ante review a declaration of unconstitutionality impedes enactment of the statute, in the case of ex post review it results in the derogation of the pre-existing norm. The latter is cancelled for the future, and the Conseil is allowed to postpone the effects of the derogation it pronounces. This allows it to preserve legal certainty while granting the legislator sufficient time to remedy unconstitutionalities without creating a legal vacuum. The decisions of the Conseil are reached by a simple majority. The president enjoys a casing vote. No dissenting or concurring opinions are admitted. Decisionsare final, with no appeal existing against them, and they are binding on all authorities. As the Conseilearlier decided, ‘the authority of [its] decisions is not only that of the holding (dispositif) but also of the motives that are its necessary support’ (62–18 L ruling (Fr)).

15.  According to what is commonly taught in France, the Conseil Constitutionnel has progressively turned into a full-blown constitutional court, similar to the other institutions characteristic of Kelsen’s ‘European model’ of constitutional justice (Tusseau (2011)). It appears to be perfectly inserted into the current dynamics of judicial dialogues. Ordinary judges frequently make references to the Conseil’s decisions and abide by its case law. After a slightly problematic start for the Cour de Cassation, the system of QPC is working well. Finally, as far as international and supranational courts are concerned, the Conseil constantly pays attention to the decisions of the European Court of Human Rights and the European Court of Justice, and adapts its case law accordingly.

D.  Case Law

16.  The main contributions of the Conseil Constitutionnel’s case law are threefold.

1.  The Regulation of Public Powers’ Activities

17.  The Conseil Constitutionnel was initially intended to ensure the ‘rationalization’ of French parliamentarianism. By strictly controlling their standing orders, it guaranteed that the political assemblies did not expand their powers beyond what the constitution foresaw, and especially that they did not tread on the executive’s prerogatives (59–2 and 59–3 DC rulings (Fr)). Simultaneously, the Conseil contributed to enhancing the legislative function by imposing on the legislator a full exercise of its prerogatives. In terms of separation of powers, it was not open to the parliament to refrain from using its competence (‘negative incompetence’), thus delegating its power to the government, administration, judges, or private parties (67–31 DC, 75–56 DC, 81–132 DC rulings (Fr); delegation of power). The Conseil strictly controlled parliamentary procedure and especially members of parliament’s right to propose amendments (2005–532 DC ruling (Fr)). It also made it mandatory for statutes to be accessible and intelligible (99–421 DC ruling (Fr)), as well as clear (2011–644 DC ruling (Fr)), and normative (2005–512 DC ruling (Fr)). This contributed to restore legislation, which had been downgraded by the constitution, as a source of law. While the Conseil protected the independence and competence of the judiciary, especially by identifying a fundamental principle acknowledged in the laws of the Republic that applied to administrative as well as judiciary judges (80–119 DC ruling (Fr)), it acknowledged that the executive power, in spite of being granted to the prime minister by Art. 21 of the constitution, could be transferred in limited proportions to independent administrative agencies (86–217 DC ruling (Fr); independent agencies).

2.  The Management of Supranational Integration

18.  Regarding the French state’s international relations, the Conseil Constitutionnel was involved in the major steps of European integration. It has had to review the constitutionality of the most important treaties (92–308 DC, 92–312 DC, 97–394 DC, 2004–505 DC, 2007–560 DC rulings (Fr); see eg Levade; Papadimitriou). In 1992 for the Maastricht Treaty, in 1997 for the Amsterdam Treaty, in 2004 for the Treaty establishing a constitution for Europe, and in 2007 for the Lisbon Treaty, it concluded that a constitutional amendment was needed in order to ensure the compatibility of supranational norms with the constitution (amendment or revision of constitutions). Once European integration was made part of the constitution (Constitution of the French Republic: 4 October 1958 (as amended to 23 July 2008) Main Text, Title XV (Fr)), the Conseil accepted the practice of ‘judicial dialogues’. In 2013, it made its first preliminary reference to the European Court of Justice (2013–314P QPC ruling (Fr)), after deciding that—except in cases where French constitutional identity was threatened—it would not review the constitutionality of statutes that, in compliance with a constitutional requirement, merely transposed EU directives (2004–496 DC and 2006–540 DC rulings (Fr); see Millet 2010).

3.  The Protection of Fundamental Rights

19.  Even before the QPC, protecting fundamental rights had become one of the most important missions of the Conseil (Lascombe; Renoux and De Villiers). Along with the unwritten rights that it sometimes identifies, such as freedom of association (71–44 DC ruling (Fr)), individual freedom (76–75 DC ruling (Fr)), freedom of conscience and religion or belief (77–87 DC ruling (Fr)), the independence of university professors (83–165 DC ruling (Fr)), or the dignity and autonomy of individuals (94–343/344 DC ruling (Fr)), the two main sources of fundamental rights are the Declaration of 1789 and the preamble of 1946. The first mostly protects individual civil and political rights that can be regarded as safeguarding against the state’s interference. Art. 2 of the Declaration reads, ‘[t]he goal of any political association is the conservation of the natural and imprescriptible rights of man. These rights are liberty, property, safety and resistance against oppression’ (Declaration of the Rights of Man and the Citizen of 1789, Art. 2 (Fr), right to freedom, right to liberty, right to property, right to resistance, right to security). The Conseil’s decisions have duly implemented these rights and expanded them (for property see also (Declaration of the Rights of Man and the Citizen of 1789, Art. 17 (Fr), 82–139 DC (Fr) and 2016–540 QPC rulings (Fr)). It also secured, for example, the sovereignty of the nation (Declaration of the Rights of Man and the Citizen of 1789, Art. 3 (Fr)), equality (Declaration of the Rights of Man and the Citizen of 1789, Art. 6 (Fr), 87–232 DC ruling (Fr)), proportionality in punishment (Declaration of the Rights of Man and the Citizen of 1789, Art. 8 (Fr), limits on criminal penalties), the presumption of innocence (Declaration of the Rights of Man and the Citizen of 1789, Art. 9 (Fr)), freedom of opinion, expression and communication (Declaration of the Rights of Man and the Citizen of 1789, Arts 10 and 11 (Fr), 84–181 DC ruling (Fr), freedom of expression), andthe right to fair trial (Declaration of the Rights of Man and the Citizen of 1789, Art. 16 (Fr), 96–373 DC ruling (Fr), due process). Although the 1946 preamble purports to ‘confirm and complement’ these rights, its inspiration is quite different. The rights it proclaims are more sensitive to their context of implementation, and to the identities of their bearers. These ‘second generation’ collective rights (collective rights of minorities), economic rights, and social rights tend to impose positive obligations on the statemore concretely. Such is, for example, the case of the duty to work and the right to employment (right to work), the right to unionize (80–127 DC and 2010–42 QPC rulings (Fr), unions), the right to strike (79–105 DC ruling (Fr), labour rights), the rights of workers to participate in the collective determination of their conditions of work and in the management of the workplace (77–79 DC and 2010–42 QPC rulings (Fr)), and the obligation of the nation to provide the individual and family with the conditions necessary to their development (93–325 DC ruling (Fr))—including the right to a family life, the right to social security, the right to education (2012–654 DC ruling (Fr)), and to guarantee to all (notably children, mothers and elderly workers) protection of their health, material security, rest, and leisure (2009–584 DC ruling (Fr), right to health).

20.  Clearly, it is not possible to identify a specific hierarchy among fundamental rights, a ‘double standard’ of review, or a preferred position for specific rights in the Conseil Constitutionnel’s case law. Most of the time, the Conseil tries and balances rights against eachanother, in order to secure an acceptable equilibrium whereby none of the rightsinvolved are sacrificed in an irrational or disproportionate way (proportionality; reasonableness). Nevertheless, the conflicting inspirations of the parameters of review contribute to increasing the Conseil’s discretionary power when assessing the validity of political authorities’ actions (judicial discretion).

E.  Evolution and Impact

1.  Functional Evolution

21.  In spite of an evident organic stability, the Conseil’s functional dimension has considerably changed during the Fifth Republic. Three main characterizationsof the Conseil can be distinguished:it was initially conceived as the ‘watchdog of parliament’, in whichits main role was to ensure that parliament would not violate the limits that had been imposed on its power to restore the stability and the efficiency of state power;secondly, in the 1970s, the Conseil developed as an integral part of the status of the political opposition, andin that context the right to trigger control was granted to the members of the minority;thirdly, this has led the Conseil to make more decisions and progressively deal less with cases related to problems of separation of powers orthe respective competences of government and parliament, and increasingly with cases related to the protection of fundamental rights. This third portrait of the Conseil as the guarantor of rights and liberties is the dominant one today, as the new QPC procedure implies. This most important recent reform may prompt the development of a new constitutional culture. For the first time in French history, citizens can avail themselves of their own fundamental norms in ordinary litigation. A living constitutional lawis emerging—that is, a constitutional law not frozen in a text that is more or less disregarded by the public authorities without it having any consequence, but ratherevolving depending on the needs of French society.

2.  Judicial Politics

22.  This necessarily raises the question of the impact the Conseil has on the fabric of French polity. When the Conseil considers that a statute is constitutional, it exercises a sort of veto power which makes it a co-author of the statute (Troper; Tusseau (2012)). When it declares the unconstitutionality of a statute, it acts, according to Kelsen, as a negative legislator. But the Conseil’s rulings are frequently more sophisticated. By means of réserves d’interprétation, it rules that the statute is not unconstitutional provided it is given a specific interpretation, the enforcement of which belongs to the administrative and judicial authorities. This is a refined way for the Conseil to participate in the production of legislative norms. Moreover, during the legislative process, it is not uncommon for the government and parliamentarians to make explicit references to the Conseil’s case law. The pouvoirs constitués routinely tend to anticipate the possible reaction of the Conseil, which increases the impact of its rulings and make it appear as the functional equivalent of a third house of parliament (Stone). Overall, especially since 60 deputies or senators were given the right of saisine, the number of constitutional rulings has considerably increased, which have correlatively begun to deal with major sectors of legislative activity and all branches of the legal system. This phenomenon has resulted in widespread ‘constitutionalization’ of the legal system (Mathieu and Verpeaux).

3.  Doctrinal Perception and Influence

23.  A last effect of the Conseil Constitutionnel’s development has to do with legal doctrine. Until the development of constitutional review, constitutional law as a discipline was quite undervalued. The legal doctrine par excellence was private law dogmatics. Paradigmatically, private law jurists had a text—the Civil Code—and the rulings of the Cour de Cassation to comment upon and study. In the sphere of public law, only specialists of administrative law could develop a similar pattern of academic work. Even though there was no administrative code, the case law of the Conseil d’Etat provided the materials for legal commentary in a similar way. Conversely, because of the French hatred of Ancien Régime courts, constitutional norms could be freely violated by public authorities, and as there was no judicial sanction to ensure their enforcement they were constantly disregarded or even radically overturned. Since there was nothing that could be commented upon in a legal manner, constitutional doctrine was more or less absorbed by political science studies, which were the only field of studies that could describe the reality of the functioning of constitutional institutions. When the Conseil Constitutionnel’s role increased, a new, sanctioned, constitutional law emerged. This has led to constitutional scholars enjoying, like their private law and administrative law counterparts, a real law and a proper case law to study, according to the pattern of legal science that is dominant in France. Both from the viewpoint of positive law and from the viewpoint of scholarship, this was the ‘revenge of constitutional law’ (Avril; Cayla; François). This normalization of constitutional science, especially under the influence of Louis Favoreu (2014), has led to a form of Isolierung that is not without its shortcomings. Political theory, political sociology, history of constitutional ideas, etc. have progressively been excluded from ‘normal constitutional science’ (Kuhn). That is why, after constitutional law has finally made its way into French constitutional culture, several scholars have begun to advocate for a Kuhnian revolution that could renew the vitality of French constitutional science.

Select Bibliography

  • Avril, P, ‘Une revanche du droit constitutionnel?’ (1989) 49 Revue Pouvoirs 5.
  • Carré de Malberg, R, La loi expression de la volonté générale (Sirey 1931).
  • Cayla, O, ‘Le Conseil constitutionnel et la constitution de la science du droit’ in Conseil constitutionnel, Le Conseil constitutionnel a 40 ans (LGDJ 1999).
  • Drago, G, Contentieux constitutionnel français (3rd edn Presses universitaires de France 2011).
  • Duhamel, O, and Tusseau, G, Droit constitutionnel et institutions politiques (4th ed Le Seuil 2016).
  • Favoreu, L, La constitution et son juge (Economica 2014).
  • Favoreu, L, and Philip, L, Les grandes décisions du Conseil constitutionnel (17th edn Dalloz 2013).
  • François, B, ‘La constitution du droit? La doctrine constitutionnelle à la recherche d’une légitimité juridique et d’un horizon pratique’ (1993) CURAPP, La doctrine juridique 210.
  • Jan P, Le procès constitutionnel (2nd edn Lextenso 2010).
  • Kelsen, H, ‘Wesen und Entwicklung der Staatsgerichtsbarkeit’ (1929) 5 Verhandlungen der Tagung der Deutschen Staatsrechtslehrer zu Wien am 23. und 24. April 1928 30.
  • Kuhn, TS, The Structure of Scientific Revolutions (4th edn University of Chicago Press 2012).
  • Lascombe, M, Code constitutionnel et des droits fondamentaux (5th edn Dalloz 2015).
  • Levade, A, ‘Le Conseil constitutionnel et l’Union européenne’ (2009) Hors série Cahiers du Conseil constitutionnel.
  • Mathieu, B, and Verpeaux, M, (ed), La constitutionnalisation des branches du droit (Presses universitaires d’Aix-Marseille, Economica 1998).
  • Millet, F-X, Le contrôle de constitutionnalité des lois de transposition. Etude de droit comparé France-Allemagne (L’Harmattan 2011).
  • Papadimitriou, T, La régulation des rapports entre l’ordre constitutionnel français et l’ordre juridique de l’Union européenne par le Conseil constitutionnel (PhD Université Panthéon-Sorbonne (Paris I) 2010).
  • Pardini, J-J, ‘Question prioritaire de constitutionnalité et question incidente de constitutionnalité italienne: ab origine fidelis (2011) 137 Pouvoirs: La Question prioritaire de constitutionnalité 101.
  • Renoux, TS, and De Villiers, M, (ed), Code constitutionnel 2016 (7th edn LexisNexis 2016).
  • Rousseau, D, Droit du contentieux constitutionnel (10th edn Lextenso 2013).
  • Stone, A, The Birth of Judicial Politics in France: the Constitutional Council in Comparative Perspective (OUP 1992).
  • Troper, M, Pour une théorie juridique de l’Etat (Presses universitaires de France 1994).
  • Tusseau, G, ‘Le pouvoir des juges constitutionnels’ in Troper, M, and Chagnollaud, D, (eds), Traité international de droit constitutionnel vol. 3 (Dalloz 2012) 169.
  • Tusseau, G, ‘Un oublié du constitutionnalisme contemporain: le contrôle politique de constitutionnalité’ (2013) 1 Espaces du service public. Mélanges en l’honneur de Jean du Bois de Gaudusson 711.
  • Tusseau, G, Para acabar con los ‘modelos’ de jurisdicción constitucional: Un ensayo de crítica (2nd edn Porrúa 2011).
  • Vedel, G, ‘Excès de pouvoir législatif et excès de pouvoir administratif (I)’ (1996) 1 Cahiers du Conseil constitutionnel.
  • Vedel, G, ‘Excès de pouvoir législatif et excès de pouvoir administratif (II)’, (1997) 2 Cahiers du Conseil constitutionnel.

Select Cases