French constitutional law

FRENCH CONSTITUTIONAL LAW 1

we will discuss the history, content, kind of regime establish by the french constitution and the functioning of the executive power, legislative power

What is the Constitution and what is its propose? Distinctions, modification and the protection

In the history, France had 15 Constitutions:

1st: the Constitution of September 1791

                 and the current Constitution: of 1958

(200 years)

To conclude, a lot of instability (key element)

but also, diversity, Constitutions have been very different.

for example, the FIRST ONE 1791 reflected revolution ideas and the goal was to establish a Constitutional Monarchy, the king was the head of the executive power, the legislative power was conferred to a single Assembly: Mono cameral. was based of national sovereignty which means it belongs to the Nation.

right to vote was restricted, distinctions between active citizens which could vote and passive citizens, it shows voting was considered more as function.

the SECOND ONE 1793: JUNE 1793, (particular) adopted BUT never applied bus of the war and the Terror in France however it remains a source. Based on pop sovereignty, widely inspired by Jean Jacques Rousseau, the right to vote was extended to all male citizens. The executive is giving to a collective body of 24 members, those members were elected by the Assembly and considered to be agents of the Assembly = instruments bus the Assembly is the key element (is not a full power separation, the truth source of power is legislative, leading power)

= Democratic ideas and the goal were to establish semi direct democracy

the 3RD Constitution LE DIRECTOIRE 1795: the goal is to reestablish ORDER, is a reaction of the previous sit after the terror, starts with a DECLARATION OF THE RIGHTS and DUTIES OF THE MAN AND CITIZENS.  The legislative power was conferred to 2 assemblies.

                        = IT SHOWS INSTABILITY AND DIVERSITY

the 3RD REPUBLIC starts in 1870 and ends in 1940 = LONGEST REGIME in French history

the constitution was adopted in 1875 but the regime was proclaimed in 70.

How can we define a constitution?

• text with fundamental rights, choices made by a country, citizens to organise the political and social life (we can have a constitution for something else INTERNATIONAL COMMISSION, A PROJECT, TREATY FOR EU)

most countries have a supreme law!!!

• establish the system go government.
• distribute power.
• limit power
• protect rights.
• NEVERTHELESS, differences between country with different vision and history but 3 COMMON things (higher law, deals with certain specific issues like the organization of power, the form of the state and fundamental rights)
• more than just a legal text = collective project

more protected if we put in a constitution than in a law, WHY? bcs even if is a new major majority can arrive and they can repeal the law.

BURNETTE 1963 the court said “the very purpose of a constitution was to withdraw certain subjects from the chaos of the political controversy and to place them beyond the reach of majorities” = ABOVE THE LAW

In France fo a long time, constitutions ere not perceive in EU as true legal norms = the constitution was symbolic

and one French Professor at the begging of 21st century “The Constitution is the supreme law but the parliament can still violate the Constitution” what was the regime: 3th Republic, it shows a PARADOX, on the other hand the Constitution is SUPREME but in fact the parliament can still violate… That statues of Legislation enjoyed a special status for laws and acts of legislation (legicentrisme = center of the legal order) This idea comes for Jean Jacques Rousseau, an explanation in article 6 of DECLARATION OF RIGHTS 1789 “The law is the expression of the general will” = a law is supposed to be invincible, at that time, the law could do everything + enjoyed immunity, no contestation (1936 the supreme administrative court in France there was a case called ARRIGHI, a low has been challenged and violates the Constitutions, the supreme administrative court says “in the current state of French law, the law cannot be reviewed” ILLUSTRATION OF LEGICENTRISME)

20 centuries showed that low an makes mistakes, violates fundamental rights AND IN FACT IS MORE THE REFLECTION OF THE WILL OF THE MAJORITY and not of the general will.

if the parliament will make a mistake the LAW WILL BE A MISTAKE

(ex: France the law is limited and reviewed by the Constitution)

THE SIZE OF THE CONSTITUTION:

The French constitution 11 000 words.

modern constitutions are longer than past constitutions.

Napoleon, famous quote “A Constitution should be short and obscure” = short is good for the power (the limits are short)

DISTINCTION trough a formal approach (based on the form, it means there is a specific Constitutional form, norms created by a specific entity

 distinct from ordinary laws) and substantial approach (deals with the content, we analyze all the rules, norms that deal with constitutional content)

ex: state with a substantial Constitutional but without a formal Constitution = UK there’s no single doc created by a single body through a specific

 procedure

• flexible (can be easily changed) and rigid Constitutions (hard and difficult to change)

the French constitution since 1958 = 24 modifications so it’s more flexible than US

the us constitution 1787 = 27 modifications in 200 years

why we need to modify the constitution? new needs and to reflect the evolution of the society however if the constitution is modified too frequently there’s a problem and that would hurt the integrity of the Constitution.

if you don’t change enough, there’s a problem = outdated

a middle ground between

Can we say that certain elements in the Constitutions cannot be modified? limits on the revision of the modification? like Germany, has put a limit to the modification of the Constitution = protection of dignity

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