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Library Use Only European University Institute Department of Law ARGUING FOR THE APPLICATION OF THEORY TO THE LEGAL PROTECTION OF CIVIL LIBERTIES: A STUDY OF CERTAIN ASPECTS OF THE LIBERTY TO ASSEMBLE IN FRANCE AND ENGLAND by Cyril Adjei Thesis submitted for assessment with a view to obtaining the Degree of Doctor of the European University Institute Florence, 11th April 1994 Examining jury: Prof. Antonio Cassese (European University Institute) Prof. Luis María Diez-Picazo Giménez (European University Institute), (Supervisor) Prof. David Feldman (University of Birmingham) Prof. Avrom Sherr (Centre for Business and Professional Law, University of Lív?!^>ool),fCo-Supenrisor) Prof. Michel Troper (Universityjjff París, X) lib r a r y u se o n ly European University Library 3 0 0 0 1 0 0 1 5 7432 8 European University Institute Department of Law ARGUING FOR THE APPLICATION OF THEORY TO THE LEGAL PROTECTION OF CIVIL LIBERTIES: A STUDY OF CERTAIN ASPECTS OF THE LIBERTY TO ASSEMBLE IN FRANCE AND ENGLAND * by Cyril Adjei Thesis submitted for assessment with a view to obtaining the Degree of Doctor of the European University Institute Florence, 11th April 1994 Examining Jury: Prof. Antonio Cassese (European University Institute) Prof. Luis María Diez-Picazo Giménez (European University Institute), (Supervisor) Prof. David Feldman (University of Birmingham) Prof. Avrom Sherr (Centre for Business and Professional Law, University of Liverpool), (Co-Supervisor) Prof. Michel Troper (University of Paris, X) THESES Ggsr*9 «DJ O, y 'Vf** tN n ov For the jurispradist: The philosopher believes that the value of his philosophy lies in the whole, in the building: posterity discovers it in the bricks with which he built and which are then often used again for better building: in fact, that is to say, that that building can be destroyed and nonetheless possess value as material. (F. Nietzsche, 'Assorted Opinions and Maxims' 1879) For the comparatist: Pieenla patria casual o eligida; corazón, cabeza en el aire del mundo (Keep your feet on your native or chosen homeland and your head and heart in the air of the world) (Juan Ramón Jiménez, quoted in B. Grossfeld, The Strengths and Weakness of Comparative Law' (1990), pg.40). ACKNOWLEDGEMENTS I would firstly like to thank my two supervisors, Professors Luis Maria Diez- Picazo and Avrom Sherr for their constant guidance and comments over the last three and a half years. They have been exhaustive and generous with both their time and wisdom. I must also express my gratitude to John Stanton-Ife for his helpful suggestions and comments as regards human rights theory and Frédéric Rolland for his kind and skilful aid with the French texts. Alison Tuck, Secretary of the Law Department, provided her customary wealth of practical advice and help for which I am most grateful. I owe especially warm thanks to Sylvie Aubry who brought France to life, whereas I had previously only really encountered it via the medium of the law book. To the recently departed Prime computer, on which the majority of this thesis was written, I wish a fond farewell. I have been fortunate to have had the dty of Florence and the European University Institute as a backdrop against which to carry out my research, my thanks go to friends and colleagues in both these places who have shared their company with me during work and play. Lastly, it is to my family that I am especially indebted for the unswerving tenacity with which they have supported (and often suffered) the vagaries in humour of a doctoral researcher. TABLE OF CONTENTS LIST OF PRINCIPAL ABBRE VIATIONS i INTRODUCTION iii PART ONE THE NEED FOR THEORY CHAPTER I HUMAN RIGHTS THEORY AND THE LEGAL PROTECTION OF CIVIL LIBERTIES 10 Section I Reform Without Theory: The Bill of Rights Debate 11 Section II Introducing A Theory of Human Rights 27 Section ID Exploring Origins and Development 32 CHAPTER II COMPARATIVE THEORY AND THE LAW RELATING TO THE PROTECTION OF CIVIL LIBERTIES 65 Section I Comparative Theory and Method 66 Section II A Relationship Between England and France 72 Section HI Another Practical Concern: The Protection of Human Rights in the European Union 113 CHAPTER III A SPECIFIC CIVIL LIBERTY: THE LIBERTY TO ASSEMBLE 121 Section I The Importance of The liberty To Assemble 122 Section n Defining The Liberty To Assemble 133 PART TWO THE LIBERTY TO MEET AND THE LIBERTY TO PROCESS IN FRANCE CHAPTER IV THE LIBERTY TO MEET IN FRANCE 144 Section I A Definition 144 Section II The History of Legal Regulation 153 Section HI The Current Legal Framework 171 CHAPTER V THE LIBERTY TO PROCESS IN FRANCE 203 Section I A Definition 203 Section II The History of Legal Regulation 209 Section HI The Current Legal Framework 230 PART THREE COMPARATIVE REGULATION CHAPTER VI COMPARATIVE CRITERIA, LEGAL STATUS AND STRUCTURE 263 Section I Comparative Criteria 264 Section II The Legal Status of The Liberty 275 Section HI Structure: The Liberties To Assemble 287 CHAPTER VII COMPARING REGULATION OF THE LIBERTIES: BEFORE MEETINGS AND PROCESSIONS 299 Section I The Location of Assemblies 299 Section II Bans Before Assemblies 321 Section HI Conditions Before Assemblies 335 CHAPTER VIII COMPARING REGULATION OF THE LIBERTIES: DURING MEETINGS AND PROCESSIONS 350 Section I The Position in England 350 Section H France and England Compared 359 Section HI Higher Standards: The USA and the ECHR 368 CHAPTER IX COMPARING REGULATION OF THE LIBERTIES: AFTER ASSEMBLIES 379 Section I The Position in England 379 Section n France and England Compared 383 CHAPTER X CONCLUSIONS: A RE-EXAMINATION OF TWO PRACTICAL CONCERNS 388 Section I Six Conclusions 388 Section n The Bill of Rights Debate: A Compromise 391 Section HI Human Rights in the EU: Towards Common Traditions 402 BIBLIOGRAPHY 410 LIST OF PRINCIPAL ABBREVIATIONS A European Court of Human Rights: Judgments and Decisions: Series A A.C. Appeal Cases Law Reports A .J.D. A. Actualité juridique-Droit administratif All E.R. All England Law Reports Bull.crim Bulletin des arrêts de la Cour de Cassation c. contre Ce Conseil constitutionnel C.E. Conseil d'État C.E. Ass. Assemblée générale du contentieux C.E. sect. Section C.L.P. Current Legal Problems Cass. ch. mixte Cour de Cassation: Chambre mixte Cass. civ Cour de Cassation: Chambre civile Cass. crim. Cour de Cassation: Chambre criminelle chr. Chronique C.L.J. Cambridge Law Journal C.M.L.R. Common Market Law Reports C.M.L.Rev. Common Market Law Review Cox CC Cox's Criminal Cases Cr.App.Rep. Criminal Appeal Reports Crim.L.R. Criminal Law Review D. Recueil Dalloz DC Decision du Conseil constitutionnel D.H. Recueil Dalloz hebdomadaire de jurisprudence D.P. Dalloz périodique D & R Decisions and Reports of the European Commission of Human Rights doctr. doctrine E.C.Bull.Suppl. Supplement to the Bulletin of the European Communities E.D.C.E. Études et Documents du Conseil d'État E.C.R. European Court Reports E.L.R. European Law Review éd. G. édition générale Gaz.Pal. La Gazette du Palais HC House of Commons H.L. Deb. House of Lords debates H.M.S.O. Her Majesty's Stationary Office Harv.Civ.Lib.Rev. Harvard Civil Rights Civil Liberties Law Review Harv.L.Rev. Harvard Law Review I.C.L.Q. International and Comparative Law Quarterly I.C.L.R. Irish Common Law Reports I.R. Irish Reports I.R.L.R. Industrial Relations Law Reports J.-Cl. Juris-Classeur J.C.P. Jurisdasseur périodique (La Semaine Juridique) J.L.& Soc. Journal of Law and Society J.O. Journal Officiel de la République Française J.P. Justice of the Peace and Local Government Review J.P.N. Justice of the Peace Journal K.B. King's Bench Law Reports L. Loi L.Ed. United States Supreme Court Reports, Lawyer's Edition L.Ed. 2d. United States Supreme Court Reports, Lawyer's Edition (Second Series) L.G.R. Knight's Local Government Reports L.J.M.C. Law Journal Reports, Magistrates' Cases L.Q.R. Law Quarterly Review L.R.Ir. Law Reports, Ireland L.T. Law Times Reports Law Cont.Probl. Law and Contemporary Problems M.L.R. Modem Law Review Mich.L.Rev. Michigan Law Review N.E. Northeastern Reporter N.I.J.B. Northern Ireland Judgement Bulletin N.I.L.Q. Northern Ireland Legal Quarterly Nat. Assem. Assemblée Nationale Ox.J.L.S. Oxford Journal of Legal Studies P.L. Public Law Q.B. Queen's Bench Law Reports R.D.P. Revue de droit public R.F.D.A. Revue française de droit administratif R.F.D.C. Revue française de droit constitutionnel Rec. Recueil des décisions du Conseil d'État Rec. des lois Recueil général des lois, décrets et arrêtés Rec.Leb Recueil des décisions du Conseil d'État S. Recueil Sirey S.Ct. Supreme Court Reporter S.D.N.Y. Southern District of New York Stan.L.R. Stanford Law Review Trib. civ. Tribunal civil Trib. corr. Tribunal correctionnel Tul.L.Rev. Tulane Law Review U.Missouri at K.C.L.Rev. University of Missouri at Kansas City Law Review U.S. United States Supreme Court Reports W.L.R. Weekly Law Reports Wash.L.R. Washington Law Review Yale L.J. Yale Law Journal INTRODUCTION This essay attempts to apply two theories to the legal protection of civil liberties in the process of comparing the liberty to assemble in France and England.1 This is attempted in order to show that theory can be of relevance to the formulation of legal measures to protect civil liberties. The two theories that are applied are jurisprudential and comparative, and it will be shown that when employed they point to concrete reforms of the protection of the liberty to assemble.
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