Dissertation droit constitutionnel sur la pyramide de kelsen

The place of the preamble of the Constitution of 1958 in the “Kelsenian Pyramid”: a theoretical approach.

                “The legal order is not a system of legal standards placed all at the same rank, but a multi-layered building, a pyramid or hierarchy consisting of a number of floors or layers of legal standards”, this how Hans Kelsen define and explain the hierarchy of norms. Indeed, in our society we need rules to control human’s behavior, but this need no longer needs to be proven. This hierarchical organization thought by Kelsen forms a pyramid where each lower norm must respect the higher norms. The larger the standards, the fewer they are, this is where the pyramidal form comes from. The Constitution, which is the main theme of our subject, is one of the most important norms of the pyramid, since it is part of the constitutional bloc. But what is her real place in the Kelsen’s hierarchy of norms ? We will answer to this question in two parts : Firstly, we will talk about the supremacy of the Constitution in the Kelsenian Pyramid, and then, we will ask ourselves questions about this supremacy which can be called into questions.

        As I started to say before, the Constitution of 1958 is the most important norm of the pyramid, indeed, it takes place at the top of the Kelsenian pyramid with the Declaration of the Rights of Man and of the Citizen of 1789, the Environmental Charter and the Preamble of the Constitution of 1946.  

But firstly, we can start by introduce de “Kelsenian pyramid”. The Kelsen pyramid is a pyramid of norms whose coherence is ensured by the conformity of each of them with that which is superior to it. The author of this pyramid is Hans Kelsen, an Austro-American jurist. The main idea is that the coherence of the legal system can only be ensured if the different sources of law are clearly and precisely hierarchical. It is to this objective that the pyramid of Kelsen answers.

Moreover, in France, the Constitution is introduced as superior to laws, but also to international treaties. That is what article 55 of the Constitution tells us – I quote- “Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, with respect to each agreement or treaty, to its application by the other party.” . Indeed, even if treaties and agreements have a higher value than the laws, the Constitution is still above the agreements. Article 54 can also be used to show the superiority of the Constitution. However, the Constitution can be modified to ratify the treaty. So, these articles and even the position of the Constitution in the pyramid show that it has a big impact in the hierarchy of norms but also in the French legal system and that is what we are going to talk about.

Furthermore, the French legal system is especially based on this Constitution, which is considered as the highest rule of the legal order of a state, from which all other rules flow. Indeed, it is the Constitution that makes it possible to organize the country, but above all, it is necessary to guarantee fundamental rights. For example, it establishes the principle of equality of citizens in front of the law. It is thanks to the constitution that the French society has formed an identity. Moreover, it offers cohesion to France.

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