FRENCH CONSTITUTIONALISM

Since the French Revolution in 1789, France has had at least 12 constitutions, whereby the ideals that inspired the Revolution and the radically new notion of political order it generated were translated into a stable constitutional framework over a long period and through many stages.

The conception of political authority changed with the Revolution to be seen as no longer flowing from God to the king, but instead “surging from below, from the people themselves, who conferred legitimate authority upon their duly elected representatives in parliament” (Rohr 1995: 11). The Revolution also created “a solidly democratic basis for the rule of law in France, but the law that ruled was statutory law, that is, laws passed by the sovereign parliament in the name of the people” (11; emphasis original). The laws passed by parliament could not be challenged, since “(1) as a practical matter, there has been no Supreme Court in France empowered to strike down unconstitutional laws passed by Parliament; and (2) as a matter of principle, there is no logical basis to challenge a legislative enactment duly authorized by the Parliament” (11). Hence, although the constitution might technically speaking have had paramount status in France, in practice it did not have the power to check the action of political power in the same way this is done in the United States. The French answer to this question remained different from the American approach even after the introduction of the Constitutional Council under the Fifth Republic to “adjudicate” such matters, as noted below.

While the rule of law may have been given a democratic foundation with the Revolution, the relationship between democracy and the functioning and limitation of political power seems to have been a problematical one in the history of French constitutionalism. To some extent this is also true of the American experience. Writing of the French and American Revolutions, Bukanovsky states that

Democratic legitimacy did not emerge victorious from the eighteenth century revolutions, but neither was dynastic legitimacy reasserted in its traditional form. Rather, it was the idea of popular sovereignty—the notion that legitimacy must come from the will of the people—that proved the most potent, immediate legacy of the revolutionary wars and domestic struggles. Closely linked to this development was the idea that the people, rather than the monarch, constituted—and ought to constitute—the nation. Popular sovereignty and nationalism were not inextricably linked to the notions of democratic rule or even the rule of law. (Bukanovsky 2002: 6, emphasis added)

In the case of France, it appears that translating the rather abstract association of the “people” with the “nation” into actual political practice required a series of experiments with different constitutional forms and systems. In contrast, the definition of the “people” who could actually benefit from the constitution was limited and exclusionary in the American experience. After all, “the original document [the Constitution of the United States] recognized slavery and permitted states to restrict the voting franchise to only a very limited population of propertied, white males” (Franklin 1995: 11). Nevertheless, the idea that the link between people and constitution is prior to any functioning of government, which is the doctrine of constitutional supremacy, distinguishes the American from the French experience.

Constitutional development in France can be viewed in terms of three repeated cycles of “the assertion of sovereign control from the monarchy, different elite sources, and the democratic polity” (McHugh 2002: 149). However, while the term “republican” in the French context seems to refer to the establishment of democratic practice, its true meaning would be “closer to some of the French experiments with limited oligarchy, since that sort of government would seek to accommodate the interests of various classes, groups and regions” (150).

The Fifth Republic, established in 1958 under the leadership of Charles de Gaulle, signified radical transformations in the French Constitution. The presidency was invested with real powers, but parliament was not divested of all its powers. Indeed, “the most distinctive feature of the Constitution of the Fifth Republic is the division of executive power between the president and the government headed by the prime minister” (Rohr 1995: 51). It should also be noted that the Declaration of the Rights of Man and of the Citizen of 1789 is a part of the Constitution of the Fifth Republic. However, a crucial innovation in this current phase is the establishment of the Constitutional Council, which has autonomy from government power, to “police the constitutional boundary erected between the spheres of law and regulation” (139). Rohr suggests that “it is no exaggeration to say that the Constitutional Council has totally transformed French constitutional law and has provided France for the first time with the institutional capacity to impose constitutional discipline upon an errant parliament” (139).

A brief note on the notion of law may be helpful at this stage. The sanctity of the law is a culturally established aspect of French society. The Napoleonic Code, adopted in 1804, replaced the courts and the king with a concise body of rules and principles determined by the “representative assembly of the people, thus reflecting a new relationship between legislators and those governed by the law (Dadamo and Farran 1993: 10).

a rather more conceptual and abstract approach to the law, preferring to see it in terms of fundamental principles rather than as a means of providing remedies for specific cases... it is not just the preserve of lawyers and the courts, but permeates and concerns the whole of society.... Emphasis is therefore placed on the importance of the rule of law, the safeguards of individual rights, and the accessibility of the law to non-lawyers. (Dadamo and Farran 1993: 12)

To conclude these brief comments on a comparative note for our purposes here, the notion of the constitution as paramount law is totally absent in the British tradition; it is present in the French and American experiences, but in two different forms. In the American case, the constitution as paramount law both guides the functioning of the judiciary and is enforced by it. In France, the constitution is paramount because it is an integral part of the law which is paramount. A second critical distinction is that in the United States of America, the courts can interpret the constitution but in France this is outside the province of the jurists. I will now draw on the preceding remarks and earlier discussion for some general theoretical reflections on the nature and evolution of modern constitutionalism as a matter of gradual consensus among various experiences.