Constitutional Justice and Constitutional Politics in France

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In many decisions from the French constitutional court (Conseil constitutionnel), reason-giving is limited to a minimum, if not altogether absent. this articles aims at understanding this practice of “weak” reason-giving by showing that it displays a special understanding of politics. The French constitutional council does not, contrary to a widespread belief, ignore politics. Rather, it has a special way of dealing with policy arguments in what appears to be a mainly deductive approach to adjudication.

Introduction

1) The framework of Constitutional justice in France. From its creation in 1958 up until 2008, the Constitutional council (Conseil constitutionnel : C.C.) ¬ had stood apart from most other comparable constitutional courts in the west in that it only reviewed acts of parliament before they entered into force. This model of a priori abstract review was (and still is) embodied in two main constitutional provisions. Under article 61 (2) C: [1]

Acts of Parliament may be referred to the Constitutional Council, before their promulgation, by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, sixty Members of the National Assembly or sixty Senators (...). [2]

Article 54 C creates another procedural vehicle for constitutional review. It has a separate purpose, namely to allow for a check on the compatibility between treaties and the Constitution before those treaties are ratified:

If the Constitutional Council, on a referral from the President of the Republic, from the Prime Minister, from the President of one or the other Houses, or from sixty Members of the National Assembly or sixty Senators, has held that an international undertaking contains a clause contrary to the Constitution, authorization to ratify or approve the international undertaking involved may be given only after amending the Constitution.

Since the constitutional reform of 2008, a new mechanism permits individuals to challenge statutes already in force that infringe their constitutional rights:

If, during proceedings in progress before a court of law, it is claimed that a statutory provision infringes the rights and freedoms, guaranteed by the Constitution, the matter may be referred by the Conseil d’Etat or by the Cour de cassation to the constitutional council, within a determined period.

This new procedure of preliminary reference, [3] known as Question prioritaire de constitutionnalité, has not, however, induced the court to significantly alter the way in which its cases are drafted. The court’s ‘style’ has remained essentially the same.


2) The Constitutional council’s judicial style. The C.C. has developed a case law that is widely seen as having improved the rule of law and the protection of civil liberties. It has, it is often said, given France the bill of rights that was missing in the 1958 constitution. Few members of the general public bother to read the court’s decisions. But the general point of view among legal academics is that the court’s judicial style is satisfying. While the early cases were very short and did not seem to give adequate reasons, this has changed. ‘Today, while not reaching the size of foreign constitutional courts, the decisions are lengthy, carefully justified and look like lessons in constitutional, parliamentary, criminal or financial law’. [4] Yet this positive assessment is not unanimous. A minority of observers point to the insufficient amount of reasons given in some specific cases. Words such as ‘elliptical’, ‘obscure’, ‘incoherent’ have been used in doctrinal literature. Mostly, there is a sense that reason giving is insufficient. Certainly, there is no absolute standard. Long cases can lack adequate justification, while brevitas has been commended, in some contexts, as a judicial virtue. This is particularly the case in French law, where courts generally prefer clarity – which is equated to brevity – to lengthy opinions. Yet, legal commentators have sometimes been struck by the remarkable brevity of some of the C.C.’s cases. What should we say, for instance, of the reason giving for the 2008 Decision by which the court ‘reviewed’ an amendment to the standing orders of the ‘Congrès’ (a body which is empowered to alter the constitution according to article 89 C) :

The (relevant) provisions have been enacted in keeping with article 18 of the constitution and do not violate any other constitutional rule. [5]

This is the lowest possible level of reason-giving that can be thought of. This judicial style has been replicated in responses to the preliminary referrals brought under article 61-1 (Question prioritaire de constitutionnalité : QPC). If anything, most ‘QPC’ decisions are even shorter than the ‘DC’ ones (those delivered under articles 61 (1) 61 (2) and 54 C). In fact, one commentator deplored the utter ‘lack of reason giving’ [6] of the important ‘QPC’ decision of august 2010 regarding the statute reforming the university system. [7]

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