French constitutional law

French Constitutional law

It is divided into 3 parts:

1. The key concepts of the French constitutional law
2. French historical constitutions; the constitution of 1791, the royal charters of 1814 and 1830, the constitution of the Third Republic
3. The fifth Republic: a dualistic parliamentary system

Chapter 1: French Sovereignty

Introduction

 In France, the sovereign is the nation.

 Difference in French between etat and government

The idea of a political constitution; it is a way to express politics. The constitution is the grammar of politics.  Each political party has a program about the economic and society. There is cultural notion of the constitution.  In France, there is a difference between public good and private good. The way we understand the constitution is also about an articulation of values, history of a country. The constitution is a way of thinking about the society, economic and politics. In 1958, the fifth constitution was adopted. Article 3 says that sovereignty belongs to people. Sovereignty of the people is the sovereignty of the national. There is a difference between the French and USA constitution. The USA constitution; there is a tradition of popular sovereignty and in France it is about the national sovereignty. National sovereignty is seen as the people that are conceived in their unity. French constitution culture is abstract. It only wants to see men free and equal. In French’s culture, we have to understand the people, as you have to see the people as the nation. It is a complete contrast with the USA. The popular sovereignty is to see the people with their race, religion.  In France, we made a distinction between the state and the government. The government in the USA is the state. In France, it is the cabinet. The state is not a government in France. For the Americans, they don’t make a distinction between the 2 notions. It is very interesting because the state is completely distinct from the person who is office owner. The state is an element of continuity.  In article 5 of the constitution, the president of the republic will have to answer the continuity of the state. The nation is sovereign not the people. The French people are represented as forming a nation.

National representation

It is very normal to make a distinction between national sovereignty and national representation as well as popular sovereignty and popular tradition.  France and America is the 2 first republics.

The difference

In French tradition, the people are the nation. It is an intellectual construction to commit the representation to the public goods. The aim of this construction is to commit the public goods. The American tradition is just a mirror, an image of the people. The notion of representation too only descriptive. It sees people as they are and nothing more.

Prescriptive and descriptive notion of the nation

Prescriptive has to serve for the public goods. They have to be isolating from individual and private interest.  The public interest is another nature. It is seen as the interest common to all and all participants and in the social contract. Jean Jacques Ruisseau is a philosopher. The 2 conception of representation about public interest comes from this philosopher.

The legacy of the French Revolution

Just before the estate, the constitution of the country was the same as the UK. The estate constitutes of the clergy, nobility and third estate. The king agreed those 300 representatives for the clergy, 300 representative to the nobility and 600 representatives to the third estate. 26 millions of French were represented by the deputies. They were united into an assembly. The first session, the king had to presided it. The verification of the power of the deputy was made in separate assembly. They wanted to have a distinct chamber. The deputy of nobility wanted to have a separate house/ chamber. It was expected that the clergy and the 3rd estate.  It was only for the assembly that they were united. On 15th June, the nobility was ready to work with the 2 others orders.  The nobility strongly opposed the idea to work with the common. It is because they had a tradition idea of realm. For the nobility, the political constitution and social constitution had to the root of political constitution with 3 different for the nobility not one assembly but 3 distinct assemblies. The problem from the start is the assembly.  When the 3rd estate had to say are they represented of the people or represented of the nation. Mirabeau says we are the representatives of the people and Sieyes says we representative of the nation. Mirabeau believes that we should agree to the representative of the people, as we need the royal assent from the king.  The house of common is the representative of the people not the nation. The nation is also the nobility, the king and the deputies. Mirabeau suggestion failed because the situation in France was different from England. In England, the English men were lucky to be subject to the same law. The common law was the same law for everybody. The English men who title with the nobility or not; there dispute was solve under the same courts. In France didn’t have the common law? If you were title with nobility, you had different court to solve disputes. In France, each estate had different law.  On 17th June 1789, the Assembly of the third Estate declared to be the National Assembly. Declaration of the Rights of Man and Citizen was drafted and adopted in August 1789. Article 3 of the declaration say that “ the principle of all sovereignty… from the nation.’ The meaning of this article has 2 forms. The first aspect of the sentence is that it puts an end between the king and the nation. The king is separate from the nation. It remains in a sense in the nation.  The centre of power is the nation. It is the sovereignty shared by the king, House of Lords and commons. The people are forming a nation. The conception of the nation has been in existence since the 16th century. Article 1 of the declaration says “ Men are born and remain free… on the common good.” Sieyes in his writing express that the third estate is the nation; the nobility doesn’t work.  They don’t contribute to the economical situation.

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B. the basic characteristics of National Representation

Statute law and the power of the National Representation

1. Judicial Review of statute law
2. Enforcement of the law by the executive power

Generality of the statutes

Distinction between the statutes and the regulation: lois/reglements

The 1795 constitution we find the distinction with the law of regulation. During 1799, another constitution was drafted which was article 44. Since 1795, these distinctions between statutes and regulation are in the French law. It is one of the main characteristics of the French public law. By the regulatory power has different degree of regulation of the public peace and order. The regulation is also necessary for the execution of the state. Since the French revolution we have these distinctions made between statutes and regulations.

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