Where Judicial Politics Are Legislative Politics: the French Constitutional Council

Yale University From the SelectedWorks of Alec Stone Sweet 1992 Where Judicial Politics are Legislative Politics: The rF ench Constitutional Council Alec Stone Sweet Available at: https://works.bepress.com/alec_stone_sweet/60/ West European Politics ISSN: 0140-2382 (Print) 1743-9655 (Online) Journal homepage: http://www.tandfonline.com/loi/fwep20 Where Judicial Politics Are Legislative Politics: The French Constitutional Council Alec Stone To cite this article: Alec Stone (1992) Where Judicial Politics Are Legislative Politics: The French Constitutional Council, West European Politics, 15:3, 29-49, DOI: 10.1080/01402389208424919 To link to this article: https://doi.org/10.1080/01402389208424919 Published online: 03 Dec 2007. Submit your article to this journal Article views: 232 View related articles Citing articles: 10 View citing articles Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=fwep20 Where Judicial Politics Are Legislative Politics: The French Constitutional Council ALEC STONE Judges on France's ordinary and administrative courts make law and policy by interpreting and applying statutes, but the Consti- tutional Council is overtly involved in policy-making. The Council serves as a type of 'third' chamber of the French parliament, where it may annul unconstitutional legislation, 'constitu- tionalise' various legal principles, and sometimes even prescribe the precise terms of legislation. This 'court-like' body, thus, plays a significant and growing role in French policy-making. 'If the average Frenchman', wrote a Fourth Republic proponent of judicial review, 'were asked, "what is democracy?", he would not hesitate to answer: "It's the sovereignty of the people whose will is expressed by the majority vote of the elected assemblies'".1 This 'Rous- seauian orthodoxy' - the identification of legislation with the 'general will' and legislators with popular sovereignty - has been enshrined in French constitutions since the early moments of the Revolution of 1789, producing a separation of powers doctrine that rigidly circumscribes judicial authority. The subservience of the judiciary to the work of the legislator is grounded in French law. Judicial review (in the American sense) was made a punishable offence in the penal codes of 1791, and no judge since has ever struck down or refused to apply a statute for being unconstitutional. Despite this prohibition, French judges (not unlike their counterparts elsewhere) make law all of the time. In the ordinary and administrative courts, law is made most frequently when judges are required to deter- mine the applicability and meaning of one or more statutes in litigation before them. This process, banal to common law lawyers, has resulted in a quiet but significant transformation of the judicial role and function in France. Most spectacularly, during the Fourth Republic, courts and particularly the Council of State began to discover and catalogue an array of constitutional principles that could be invoked by parties to litigation. These 'general principles of law' include such elastic notions as 'individual liberty', 'equality before the law', 'freedom of conscience', and 'non-retroactivity'. 30 JUDICIAL POLITICS AND POLICY-MAKING IN W. EUROPE French doctrine (predisposed to counter charges of usurpation) has it that these principles have been 'deduced as a matter of statutory interpretation', from the 'general spirit of legislation', based 'on the assumption that the legislator is anxious to preserve the essential liber- ties of the individual'.2 Perhaps. In any case, the primacy of judicial interpretation - and thus the meaningful capacity to make policy - has been secured in all but name. The ordinary and administrative courts, in sum, are national policy-makers to the extent that the aggregate effect of their decisions is to clarify, reinforce, or reshape general norms enshrined in code law. Carrying some of these themes forward, this article's focus is on a different sort of policy-maker - the Constitutional Council. My thesis is that the Council, France's constitutional court, functions as a specia- lised, third chamber of parliament.3 The thesis is offered as a useful conceptual and analytical device for students of French judicial politics and policy-making; it is not meant in itself to prejudge the fierce normative debates that have attended the development of the Council as a powerful legislative actor. In its most simple form, the argument is derived from analysis of certain structural elements of the French constitutional review mechanism, the policy-making effects of which have been magnified by jurisprudential creativity. The Council's impact on policy outcomes and the policy-making environment will also be examined. The third chamber thesis will be explicitly laid out and defended in the conclusion. THE STRUCTURAL SETTING OF FRENCH CONSTITUTIONAL POLITICS In several crucial respects, the French Council is unlike any constitutional court in any other western democracy. First, its 'constitutional review' authority - the power to declare legislative acts unconstitutional and therefore void - is exclusively a priori and abstract. 'Abstract review' lacks formal 'judicial' status in that it is constitutional review in the absence of litigation. The proceedings are instead initiated by politicians who refer legislation directly to the constitutional court for a ruling. A priori review is abstract consideration of legislation that has not yet entered into force. This mode of review contrasts sharply with the more familiar and widely spread 'concrete review', which is trig- gered by an existing judicial 'case or controversy'. The US Supreme Court may only engage in concrete review; the constitutional courts of Austria, Germany, Portugal and Spain possess powers of both concrete and abstract (but not a priori) review, although abstract review activities constitute only a tiny fraction of each court's caseload.4 THE FRENCH CONSTITUTIONAL COUNCIL 31 The Council lacks 'judicial' status in another important way. Unlike all other western constitutional courts, the Council is detached from the judicial system. The Council may neither instruct nor hear cases on appeal from the judiciary. Some otherwise influential constitutional law specialists have sought to convince attorneys and judges of the need to integrate the Council's jurisprudence into their own advocacy and decision-making, but their project has so far been unsuccessful. As Favoreu has lamented, judges do not feel bound by the Council's jurisprudence.5 The relationship between the Council and the administrative courts is more complicated. The traditional rule, according to which the Council of State (France's highest administrative tribunal) is bound by the impact of a Council decision but not by its argumentation, has not broken down. The first part of this rule is actually quite unremarkable: the Council of State is bound by the terms of statute, and since a Constitutional Council decision is the final stage of the legislative processes, its effect must be respected. In the past decade, both the Constitutional Council and the Council of State have made efforts to harmonise their jurisprudence in the interest of coherence, not because either body has felt obliged to do so. The magnitude of the role that politicians play in the French system of review is also exceptional. Politicians appoint Council members to nine- year terms. The President of the Republic, the President of the National Assembly, and the President of the Senate each names one member every three years. Unlike rules governing the recruitment and composition of other constitutional courts, there exist no formal prerequisites for membership beyond age (a minimum of 18 years) and citizenship. No prior legal training is required (as is mandatory for every other European constitutional court), and there is no means of blocking appointments. In practice, the single most important criterion for selection is partisan affiliation. Since the Council's creation in 1958, former government ministers and parliamentarians have always constituted a majority of its members. Though only four professional judges have ever been appointed, certain eminent law professors have had enormous influence on the Council's jurisprudential development, notably, François Luchaire in the 1970s, Georges Vedel in the 1980s, and since 1989, Jacques Robert. Until the mid-1980s, the Council's right-wing character was virtually an axiom. The Socialists appointed their first Council member only in 1983, increased their share to four in 1986, and finally achieved a majority in 1989. Until the mid-1980s, political and scholarly criticism of the Council focused on the partisan nature of the its composition, but, since that 32 JUDICIAL POLITICS AND POLICY-MAKING IN W. EUROPE time, has centred more on the Council's jurisprudential activism and expanding influence over the legislative process. Unfortunately, we can not adequately study the link between the Council's composition and its decision-making, because it deliberates and votes in official secrecy and neither dissenting nor concurring opinions are permitted. Thus, although the recruitment of Council members is partisan and calcu- lations of advantage to be obtained by appointments are made by public authorities, this influence is almost impossible to measure. The power to initiate constitutional review is also monopolised by national politicians, for

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