1. Introduction
There has always been in France widespread distrust towards European integration and, more broadly, globalisation. In the sixties, De Gaulle advocated a Europe of nations against the proponents of supranational Europe. His opposition went as far as to suspend France’s participation in the meetings of the Council until the crisis within that institution over majority voting, as opposed to unanimity, was overcome by the famous ‘Luxembourg compromise’. Later on, in 1992 and 2005, heated debates on Europe unfolded in France on the occasion of the referendums on the ratification, respectively, of the Maastricht Treaty and of the Treaty establishing a Constitution for Europe, better known as the European Constitution. Those debates opposed proponents of state sovereignty and advocates of supranational integration. While the former were narrowly defeated in 1992, their success in 2005 led to the scrapping of the European constitution and to the end of the project of formal constitutionalisation of Europe. Finally, in 2019, the Yellow Vests movement, which stood against various expressions of globalisation, including the European Union, brought France to a standstill for several months.
Those events have in common to reflect the deep divide within French society, not between Europeans and anti-Europeans, which would be somewhat caricatural, but rather between sovereigntists and federalists, or what Debray called ‘national–republicans’ and ‘liberal–libertarians’.Footnote 1 They are illustrative of a clash between two very different political cultures and, arguably, ideologies. On the one hand, there is an old, quite established ideology (French republicanism) which, taking its roots from both Republican political thought and the French Revolution, gave rise to no less than ‘a French model’ that shaped other parts of the world in a messianic way.Footnote 2 On the other hand, there is what can be characterised both as an emerging ideology and a utopia (global, liberal–legal constitutionalism) which increasingly takes hold in Europe and shakes up that model.Footnote 3
This paper examines, through the French example, how paradigmatic political changes do not always originate in radical-politics-based revolutions but through the rather smooth operation of law-based ideologies. It thus looks in particular at how modern institutions of public law emerged in France as a result of politics and how they have been recently reshaped through the medium of the law. Focusing on the loi, it argues that republican institutions of public law, that were inherited from the French Revolution and 18th century political thinkers, such as Montesquieu and above all Rousseau, have been significantly transformed through European law as a vehicle of global constitutionalism.
To that effect, this paper embraces a law-as-culture type of methodology.Footnote 4 Law is indeed both the product and the expression of culture. As the law of power and politics, public law in particular is the product and expression of the dominant political culture at a given time, at a given place, in a given polity. This paper thus takes as a premise the idea that there is a causal relationship – or at any rate a correlation – between the dominant political culture, major historical developments or events and the deep tissue of public law. It is assumed that political theory and intellectual history do not only describe but also often shape normatively and legitimise political action and thus public law as the law applicable to political action. Accordingly, the architecture of a polity is shaped by a dominant culture or ideology. That polity’s institutions reflect those political cultures that are entrenched within the psyche of a given polity. Institutions subsequently become embedded and travel beyond the vicissitudes of time, thereby perpetuating the dominant political culture, until they are themselves challenged by another political culture aspiring to domination.Footnote 5
Law-as-culture is a valuable methodological tool to approach and identify institutions, that is those infrastructures of the law that are particularly entrenched and thus hard to change. Adopting that approach, this paper will show that the republican ideology that was inherited politically and philosophically from 18th century and became dominant in France under the Third Republic structurally shaped the institutions of public law in France by placing the loi to the pinnacle. It will also demonstrate that the latter have been transformed not directly by politics but more indirectly through European law as the latter brought with it a different political culture marked by transnationalism and (neo)liberalism: global constitutionalism.
Accordingly, this paper explores both the foundations of French public law, in particular those that revolve around la loi, and their transformations from the seventies onwards. Section 2 presents the main concepts of the political thought of Montesquieu and Rousseau as the two most influential political thinkers of the 18th century to understand the intellectual origins of la loi as the main republican institution of public law in France. Section 3 sets out the institutions inherited from those thinkers and from the French Revolution and shows their anchoring from 1870 onwards. Section 4 looks at how European law has challenged those institutions by conveying a different political culture: global constitutionalism. Section 5 describes the transformations that French public law has gone through as a result of European law. It also analyses the various expressions of resistance of the republican tradition within the law. The conclusion recaps and reflects on whether the French constitution, which was long outshone by la loi, has really gained more authority from global constitutionalism.
2. The intellectual roots of the republican institutions of France and the invention of the légicentriste tradition
The birth of a tradition is not easy to trace.Footnote 6 It is perhaps somewhat easier, though, when a major revolution laid down new foundations in a particular country. Traditions may – paradoxically – emerge on the occasion of revolutions. The latter tend to establish new regimes which, in breaking with the past, establish new customs and institutions. England has had the English Revolution; the United States has had its American Revolution; France has had the French Revolution. Arguably, all three countries have, in their own way, developed rich political traditions, with differing content, in the form of grand principles and narratives, such as sovereignty of Parliament in England or ‘no taxation without representation’ in the United States.Footnote 7 Those principles and narratives became so entrenched with time that it appears difficult from those partaking in each tradition to deviate from them. They gave rise to institutions, not in the mere sense of organs or bodies (the superstructures of a state) but in the sense of established infrastructures that remain through time.Footnote 8 Accordingly, determining what those institutions are do not only require looking at the positive law but also at political and intellectual history.
As far as France is concerned, the French Revolution has had of course a major impact on the French’s self-perception up to the present day, be it in political, historical, cultural and legal terms.Footnote 9 Many institutions of French public law were established by – or at least inherited from – that Revolution, which represented a turning point that was perceived as a great reset breaking with the past and opening up a new era for France and for Europe. The first bill of rights of France, namely the Declaration of the Rights of Man and of the Citizen of 26 August 1789, was passed at the beginning of the French Revolution. In 1791, four years after the US constitution, France adopted its first written constitution. It is also at that time, in 1789 and 1790, that major acts of parliament representing a radical break with the social hierarchy but also the institutions of the past were passed: among others, the law abolishing the privileges of the clergy and of the nobility; the law suppressing higher courts (misleadingly named ‘parlements’); the law establishing the principle of the separation of the administrative and judicial authorities devised in order to avoid judicial interference with administrative action; the law establishing the ‘Civil Constitution of the Clergy’ that obliged the clergy to take oath to the nation, to the law and to the king.
All those major changes brought about by the French Revolution did not arise out of nowhere. They took place in a buzzling political and philosophical context. As attested by the famous ‘cahiers de doléances’ (registers of grievances) of the time, the Revolution occurred as a reaction against royal arbitrariness and the power of the Catholic Church.Footnote 10 It also allegedly occurred as a reaction to social inequality deriving from feudal privileges enjoyed by the nobility.Footnote 11 It is perhaps less known but crucial, for the purposes of this paper, that the Revolution also took place in response to the increasing role played by judges in parlements during the 18th century, with judicial power being strongly rejected by revolutionaries.Footnote 12
The French Revolution also had its own intellectual lineages.Footnote 13 It is largely indebted to the Enlightenment, all those political thinkers in 18th century France that were widely read – if not perhaps always understood – by the revolutionaries. Although philosophers such as Voltaire and Diderot (and more broadly the so-called Encyclopedists) undoubtedly played a major role in the French Revolution, this article focuses on Montesquieu and Rousseau as the most influential philosophers for the French Revolution and for the incoming public law of France. Although their intellectual contribution was obviously broader, both authors prefigured what was to become the central institution of public law in France, namely la loi as the main instrument to ensure political freedom together with safety, equality and the protection of rights.
Prima facie, it may look odd to juxtapose Montesquieu and Rousseau.Footnote 14 It has been held by many that their respective political views were antagonistic. It is usually said that Montesquieu was a moderate believing in doux commerce, rather than politics, as a way to ensure peace, prosperity and security. For his part, Rousseau is usually depicted as a radical preferring austerity over wealth and trade; civic participation of individuals, within a homogenous social space, over the enjoyment of their private goods. Montesquieu has usually been presented as a liberal and a pluralist who was mindful of what Benjamin Constant later on called negative (or modern) liberty, when Rousseau was a republican so obsessed with positive (or ancient) liberty that his thought would have paved the way to the various forms and experiences of totalitarianism from the Terror down to nazism and communism.Footnote 15
On a closer analysis, it however appears that there were many key similarities between Montesquieu’s and Rousseau’s thoughts.Footnote 16 As much as the former was not a ‘pure’ liberal since he was also mindful of social cohesion, the latter was not a ‘pure’ republican inasmuch as he was also interested in the individual, as shown by his social contract theory which starts and ends with the individual. Arguably, those authors embody two complementary strands of the broad republican political thought in France in that sense that both believed in political virtue as a key feature of republics. Most importantly, both pursued political freedom, albeit in different versions, rather than civil liberties or individual freedoms, as the ultimate aim of republics.Footnote 17
For Rousseau, in the classic sense of civic republicanism inspired by Antiquity, political freedom was mainly freedom as self-rule, thus democracy in the classic sense.Footnote 18 He had little interest in the phenomenon of power itself, its possible concentration and the abuses thereof. His main concern instead lay with the ‘who’ question of the holder of power and the correlative issue of whether the people should exercise power themselves or through their representatives. By contrast, Montesquieu was not a proponent of freedom as self-rule, or of freedom as non-interference in the liberal meaning consisting in securing a large sphere for private autonomy.Footnote 19 He was rather an early ‘neo-republican’ advocate of what Pettit more recently called freedom as non-domination, that is curbing power by ensuring, through an appropriate distribution of powers, the absence of domination of the monarch in the context of absolutism.Footnote 20 Montesquieu believed in constitutional arrangements whereby public power would be divided among different organs and, thereby, ensure the absence of domination of a political organ over another. He propounded in particular a system of checks and balances to avoid royal abuses and the multiplication of corps intermédiaires (‘intermediary bodies’) that would each enjoy a parcel of power.
Despite their differing approach to the conditions required to achieve political freedom, Rousseau and Montesquieu may be considered as the founding fathers of the so-called légicentriste tradition in France, whereby la loi Footnote 21 has occupied center stage of the political and legal order for decades.Footnote 22 For Rousseau, in accordance with his approach to political freedom as self-rule, la loi was the expression of the general will.Footnote 23 La loi was thus primarily defined through its author, that is the people. Individuals only mattered as political beings, citizens fully dedicated to the public sphere through their participation in the elaboration of la loi. The individual’s concrete features or private interests were not worth of consideration inasmuch as taking them into account would breach equality by justifying differentiated treatment among citizens. Grasping the individual as a political being was, for Rousseau, the only way to guarantee political freedom and equality at the same time. Rousseau considered that individuals must be ‘forced to be free’ in order for them to be equal. Equality thus explained why, in Rousseau’s mind, the general will could not err and that particular will had, through virtue, to conform to the general will.
For his part, Montesquieu, who authored the aptly named L’esprit des lois (The Spirit of the Laws), valued la loi for different reasons dictated by his own conception of political freedom as non-domination. La loi was central in his thought not because of its author but because of its intrinsic features.Footnote 24 The scope of la loi was to be limited in order to safeguard a sphere for private autonomy and its content had to be moderate. In an absolutist context marked by the adoption of individual measures, the generality of la loi was for Montesquieu a guarantee of the absence of arbitrariness and inequality as it would apply to a wide range of persons. In his view, political freedom was thus the result of la loi and people were free when they upheld la loi. On account of that eminent emancipating role, la loi was to be respected by all state organs that had to apply it. In that context, administrators and judges alike were to be no more than the ‘mouths that pronounce the words of la loi’.
In the 18th century, the importance of la loi as the instrument par excellence of politics in general and political freedom in particular was not just an intellectual fad.Footnote 25 That ‘nomophilia’ translated in the law at the very beginning of the French Revolution within the seminal Declaration of the Rights of Man and of the Citizen of 1789 (hereinafter ‘DDHC’).Footnote 26 Today, with the DDHC being relied on by courts against la loi, it is easy to forget the latter’s central place therein. Back in 1789, when it was drafted, the DDHC was a political text aiming at political liberty. La loi could not but be central and it is thus unsurprising that it appears in nearly all its provisions. While Articles 4 and 5 of the DDHCFootnote 27 are reminders of Montesquieu’s emphasis on the generality of la loi to ensure political freedom as non-domination together with safety and equality, Article 6Footnote 28 bears the hallmark of Rousseau’s general will and the latter’s explicit role to achieve both equality and political freedom as self-rule.Footnote 29
That focus on political liberty to be fulfilled through la loi further explains why the DDHC was not about positive rights but about natural rights in the specific context of a political association.Footnote 30 The main concern during the French Revolution, at any rate at the beginning, was certainly not what Foucault much latter called ‘the care of the self’, that is the enjoyment of individuals’ private rights for private purposes. It was, in the wake of Rousseau, the citizen, the political being, the zoon politikon, the member of the Nation. In other words, the DDHC was ultimately more about the rights of the citizen than about the rights of ‘man’. That reading is confirmed by the very rights that were laid down in the DDHC. While they have only ‘recently’ been interpreted in an individualistic manner as fundamental rights to be enforced by courts against the legislator, they relate to political liberty as possible means to achieve that latter. That is the case with the rights associated with criminal procedure that were devised to combat royal arbitrariness and, thus, to ensure freedom as non-domination.Footnote 31 That is also the case with the freedom of communication of opinion and ideas and the highly democratic ‘no taxation without representation’ principle, both of which ultimately safeguarding freedom as self-rule.Footnote 32 In any event, the enforcement of natural rights was no issue back then. Not only would that have been somewhat anachronistic, but faith in politics in general was so high that it was presumed that the virtuous, enlightened legislator would respect those rights anyway.Footnote 33
3. The republican institutions of public law in France
From 1789 until 1870, the year in which the Third Republic was proclaimed, France was characterised by discontinuities that were primarily due to the relatively fast succession of various political regimes through a myriad of coups, revolutions and wars, with the ensuing alternation between republics, empires and monarchies. Beyond those discontinuities and the deep political instability in that period of time, there was however, within the public law of France, one major element of continuity that is common to the various regimes since 1789: the adoption of a new written constitution at every regime change. The Third Republic subsequently anchored la loi as the keystone of the whole political and legal system after 1870.Footnote 34
A. Finding continuity in discontinuity: political constitutions before constitutional law
For about 80 years between the French revolution and the advent of the Third Republic, France went through a great deal of political instability. That instability was structural as it was regime instability. For long, France hesitated between three types of political forms (the monarchy, the empire and the republic) and various political regimes (the presidential regime and its variants; the parliamentary regime and its variants). Those hesitations translated on the constitutional plane. Each of those regimes were accompanied by institutional arrangements distributing state power in various ways.
Beneath those institutional variations often reflecting radical political differences within a sharply divided society, there was a somewhat surprising element of continuity: all newly formed regimes since 1791 have endowed themselves with a new written constitution, making the very existence of a constitution – irrespective of its actual content, the form of regime that it established, or author – the common thread that connected all political regimes with one another. Since the French Revolution, it appears widely considered by population and elites alike that a new written constitution was to mark the beginning of a new regime and that any new political regime absolutely required a new constitution. French constitutionalism thus seemed bound to be revolutionary constitutionalism.Footnote 35
The political importance of constitutions in France is shown by the flurry of constitutions that France has had since 1791: 12 constitutions in some 150 years, between 1791 and 1940, and 3 since 1940.Footnote 36 In a way, constitutional vitality is certainly the pendant of political instability. It is also the expression of the deep interest of the French people and elites for public affairs in general and constitution-making in particular. That said, constitutional vitality does not mean that constitutional law has always been a strong component of public law in France, as has happened in the United States for instance, or in Germany since the end of World War II.Footnote 37 Quite the contrary. The French frenzy for constitutions is to be interpreted as the expression of the passion for politics, for new regimes, for revolutions, for tabula rasa, for the use of that ex nihilo constituent power detained by the people as a whole as the ultimate expression of political freedom as self-rule.Footnote 38
This largely explains why, in France, constitutions have preceded constitutional law, to put it briefly. Constitutions have always been paramount there, not as higher law but higher politics so to speak.Footnote 39 Up to the present day, they have never been primarily perceived as legal instruments or keystones of the whole legal order ensuring legal certainty and fulfilling the stabilising function of the law. Constitutions have primarily been highly political texts emanating – at least fictitiously – from the people with the view to (re)founding France entirely.Footnote 40 Albeit not supreme in the legal sense, constitutions were thus supreme symbolically and politically as embodiments of radical political change. There is therefore little wonder that the theory of the constitution-making power was devised in France at the beginning of the Revolution by Sieyès. In the wake of Rousseau and in accordance with the conception of freedom as self-rule, constitutions have long been seen primarily as political acts whereby the people decide on their future by creating ex nihilo a political order and a new polity through a close-to-divine power.Footnote 41
B. The building up of a republican corpus of public law from 1870
With the establishment of the Third Republic in 1870, France was to have for the first time in 80 years a stable political regime. Republicanism became the dominant political culture in France during the Third Republic, when Republicans won over royalists and Bonapartists and, more broadly, when the republican political ideals inherited from the French Revolution eventually triumphed. That triumph was marked in particular by the consecration of la loi as the keystone of French public law.Footnote 42
First, la loi was erected as supreme within le droit (the law). As an echo of the 1791 Constitution under which there was ‘no authority in France superior to that of la loi; the King reigns only thereby and only in the name of la loi may he exact obedience’, the 1875 so-called ‘constitutional laws’ (herein the 1875 Constitution) logically consecrated the authority of la loi together with sovereignty of Parliament as its author. In accordance with Rousseau’s approach, la loi could regulate all fields of human and social activity since the 1875 Constitution did not set any limits on its material scope. Parliament could even interfere with constitutional matters to the extent that the Constitution failed to distinguish between the legislative power and the constituent power. In particular, in the wake of the 1791 Constitution again, the 1875 Constitution did not provide for a specific revision procedure and simply allowed Parliament to carry out constitutional amendments. Through la loi, the state could then shape society at (general) will in accordance with the tenets of republicanism, with no liberal recognition of a sphere of private autonomy that would guarantee freedom as non-interference.
Second, it was for la loi to protect rights. The 1875 Constitution followed in the footsteps of the DDHC and of the previous constitutions of France as it only contained institutional arrangements, with no sight of rights there. It was thus for Parliament to legislate to the effect of protecting rights.Footnote 43 From the very beginning of the Third Republic, Parliament did adopt many major laws in that regard: in 1881 for the freedom of the press and for freedom of assembly; in 1884 for union freedom and for freedom of municipalities; later on, in 1901, freedom of association. Those freedoms used to be called in France ‘public liberties’. Rather unique to France as a discourse on rights, that under-explored terminology, which has now nearly disappeared from textbooks,Footnote 44 was most revealing of the republican political thought.Footnote 45 Far remote from civil liberties within contemporary liberal parlance, that very discourse seemed to suggest that it was for la loi, that is for the political realm, to govern rights by striking a balance with public interest. It also suggested a certain substantive choice or orientation in terms of the rights that were ‘worth’ at that time. When looking at those freedoms for which Parliament adopted a law and with little surprise, they appear to share the same nature as liberties that essentially pertain to political freedom and civic entitlements rather than civil freedoms.Footnote 46
Third, the eminent status of la loi gave rise, alongside public liberties, to another major institution of public law: administrative law.Footnote 47 Administrative law is connected in two ways to the loi: la loi is both what founds and limits administrative action. The Third Republic was not yet the time of the Etat de droit (the rule of law, as the state subject to le droit) but that of the Etat légal (as the state subject to la loi only).Footnote 48 Since the sacred loi needed proper implementation by the executive power, that implementation was itself to follow special rules that would allow for a smooth and full execution of la loi while ensuring the latter’s full respect by the administration.Footnote 49 As early as 1873, it was held in the famous Blanco judgement that the French State would incur liability for its wrongdoings but, at the same time, that state liability rules were different than those applying to civil liability.Footnote 50 Administrative law was thus conceived as a set of derogatory rules that would allow public authorities to further shape society in the name of a mystical ‘intérêt général’ (public interest) closely related to Rousseau’s general will.
As a clear reminiscence of the French Revolution’s distrust towards courts of law, civil courts could however not have jurisdiction to hear cases involving the state because judicial interference with administrative action had been utterly rejected since the abovementioned law of 1790 imposing the separation between administrative and judicial authorities.Footnote 51 To deal with litigation involving the administration, it was thus considered necessary to entrust it to a body which would be close enough to the administration to be itself mindful of the public interest, while combatting abuses within the exercise of administrative prerogatives.Footnote 52 The Conseil d’Etat was that body. At its creation by Napoleon, it could hear claims in administrative matters but the last word was for the executive. In 1872, through the ‘loi Gambetta’, the Conseil d’Etat was fully empowered with the last word to examine the compatibility of state and municipal action with la loi as the ultimate yardstick for the Conseil d’Etat.Footnote 53 Back then, deference to the loi was thus not only the result of the absence of constitutional review of legislation in the 1875 Constitution.Footnote 54 It was also the result of the very construction of administrative law in France. Little wonder then that the Conseil d’Etat took over a century to accept to carry out judicial review of la loi.
4. European law as a vehicle of a new ideology at odds with French republicanism
A gradual political and cultural evolution away from the republican thought and the legacy of the French Revolution took place from 1945. That evolution occurred in three main stages. First, after World War II, several European states (in particular Germany and Italy) adopted new constitutions featuring bills of rights enforceable before constitutional courts. Human rights treaties were also concluded – first and foremost the European Convention on Human Rights.Footnote 55 Second, in the seventies and eighties, a philosophical ‘liberal turn’ took place with the rejection of communism following the discovery of its crimes.Footnote 56 The French Revolution itself was no longer a totem and started to be analysed in a more critical, liberal manner.Footnote 57 Third, after 1989, the liberal turn became global when the USSR’s collapse was interpreted as the ‘end of history’ and the advent of liberal democracy across the world.Footnote 58
In the years 2000, a new successful discourse, that of global constitutionalism, emerged among legal scholars.Footnote 59 Global constitutionalism essentially refers to a doctrine whereby law takes over politics, reason takes over will, courts take over legislators, individual rights take over the public interest, society takes over the state and, ultimately, the global takes over the local/the national. Global constitutionalism consists in both the transnationalisation and juridification of politics. That juridification takes the form of the constitutionalisation of the whole political and legal order(s) within and beyond the states, including the national constitution itself.Footnote 60 That constitutionalisation indeed involves the passage from the political constitution to the legal constitution in two ways: first, as a matter of status of the constitution, states are no longer seen through the realist lenses of sovereignty and political power but, in the wake of Kelsen, as legal orders organised in a hierarchical manner where the constitution occupies the top of that hierarchy and is enforced by courts against all inferior norms through constitutional review; second, as a matter of substance of the constitution, there is a ‘human rights-isation’ of the constitution which is then primary seen as a bill of rights.
That passage from the political to the legal constitution bears three consequences for constitutions. First, the privatisation of the constitution: the constitution increasingly becomes a private affair, a tool for each individual to strengthen their own rights and interests as opposed to their capacity as citizens, thus as political actors, to contribute to collectively shaping the course of political history. Second, the globalisation of the constitution (constitutionalism beyond the state), not in the sense of all states in the world adopting a constitution, a bill of rights and judicial review but in the sense of the substantive, human rights convergence taking place everywhere between legal orders through the widespread process of constitutionalisation.Footnote 61 Since constitutions are mainly about rights enforced through judicial review by rational and reasonable courts and since rights are mainly universal, the latter are arguably interchangeable transversally, across legal orders. Their pedigree becomes somewhat secondary. Any court may enforce those universal standards on the basis of any relevant human rights instrument partaking in the metaphorical ‘global constitution’ of the world. Third and in connection with the two previous points, the judicialisation of the constitution: courts are empowered to safeguard the content and purpose of constitutions (ie, rights) against the legislator and more broadly against politics through constitutional adjudication. Within a model of global constitutionalism, democratic deliberation is replaced by judicial deliberation and the legislator’s will by the judge’s reason. Accordingly, la loi and the legislator end up entangled in a complex web of rules, applied and enforced by courts for the sake of individual rights and interests that are not defined solely and even primarily at a domestic, yet at a global level, in a cosmopolitan perspective.Footnote 62
Because the main features of global constitutionalism (private, global, judicial) are drastically different from those of republicanism, at any rate in its French version (public, national, legislative), it is obvious that the loi-based institutions of French public law were to be significantly undermined, should global constitutionalism get sway in France. That appeared unlikely prima facie. France seemed immune to global constitutionalism as it did not formally lose World War II and, therefore, was not constrained to embrace constitutionalism under external influence.Footnote 63 It above all seemed immune thereto as the republican model that originated in messianic, revolutionary France used to be itself an export product. How could then US-inspired global constitutionalism ever take hold in a country such as France?Footnote 64 The change did not happen through politics, through yet another ‘French-style’ revolution. Ironically enough, it happened more modestly and smoothly through law, not through la loi and the legislator but through le droit and courts, that is through those very means of political change that republican France had consistently rejected ever since the Revolution.
European law – as in European Union law but also ECHR law – which, ‘like an incoming tide … that cannot be held back’Footnote 65 - has been the regional vehicle of global constitutionalism in France because of the neo-liberal content of its rules being made ultimately effective by courts of law. First, European law has undermined politics by speeding up the decline of statutes everywhere.Footnote 66 That occurred in two ways that hardly need presenting. Following the vast transfer of competences from the Member States to the European Union, domestic statutes can no longer regulate all fields of human activity within a state. It is for the European Union itself to adopt in certain matters its own legislative acts, as they are formally called since the Lisbon Treaty.Footnote 67 La loi is then reduced to implementing those legislative acts. Furthermore, la loi is no longer supreme because it is itself subject to European Union law and ECHR law. The primacy of EU law imposes in particular judicial review of statutes and their setting aside by national courts in case of conflicting obligations deriving from EU law.Footnote 68 More generally, all domestic courts are required to apply and give precedence to EU law and to the Convention. Those courts are thus vested with the power to thwart la loi.
Second, European law promoted the rise of ‘fundamental rights’ and thus accompanied the privatisation of the constitution with a change of focus from the abstract citizen mindful of the public interest to the concrete individual concerned with its own prerogatives. That was undoubtedly the case as a result of the European Convention on Human Rights as soon as contracting parties accepted the right of individual application to the Strasburg Court. It was also the case with EU law. While Community law did not originally protect rights, EU law has incrementally moved to the forefront of the protection of fundamental rights and, more generally, the rule of law.Footnote 69
Third, European law has led to the globalisation of state constitutions. Many national courts but also the ECtHR have indeed accepted to suspend their own human rights review (in the light of their own rights instruments) to the benefit of the CJEU (in the light of the Charter) on the basis that the latter would ensure a protection of those rights equivalent or comparable to theirs.Footnote 70 Premised on a universal conception of human rights whereby the latter’s adequate safeguarding does not depend on a particular court, nor on a particular source of the law (or legal pedigree), the ‘equivalent protection test’ is indicative of that metaphorical ‘global constitution’ made up of various national, European and international human rights instruments that transcend legal orders and from which any competent court mindful of human rights may draw upon to solve cases.
5. National republicanism vs. global constitutionalism: a clash of ideologies and its translation in French public law
The Fourth (1946–1958) and Fifth Republics (from 1958 up to the present day) in France have embraced the same republican ideology as the Third Republic. In many respects, the Constitution of the Fifth Republic, at least in its initial version, resembled that of the Third. The then new Constitution was a political constitution that had two political aims, finding a settlement in the context of the Algeria war and overcoming the governmental instability that plagued France for decades. To that effect, the prerogatives of the President of the Republic were boosted and Parliament’s powers were abridged. What was indeed challenged by the new Constitution was the vision of Parliament as the exclusive holder of normative power. The Constitution did not only allow the people to adopt itself a loi through a referendum but it circumscribed the scope of Parliament’s legislative action to a number of areas enumerated in the Constitution, while the other areas were left for Government.
Back in 1958, la loi was not challenged in itself, though. The signs of a legal constitution were weak as la loi was still central. While constitutional review of legislation was established, that was a mere ex ante review to ensure that Parliament did not encroach upon executive matters, thus a mere aspect of the political constitution. The nascent constitutional court – revealingly called ‘council’ still today – was indeed conceived of as a political organ mainly composed of politicians whose task was to safeguard the primacy of the executive branch over Parliament to ensure the stability and efficacy of governmental action. The very content of la loi, with regard to human rights in particular, could hardly be challenged as no bill of rights was introduced in the text of the constitution. Despite formal constitutional change in 1958, there was thus a great deal of substantive continuity between the new constitution and the past ones. That was the ‘pre-European law’ era.
European law achieved the normative promises of global constitutionalism from the seventies onwards by strongly contributing to the constitutionalisation of French public law. It induced several paradigmatic, interrelated changes away from republicanism: a shift away from the primacy of politics to the primacy of the law, that is from the general will and the Etat légal to the Etat de droit (the rule of law); a shift away from the political constitution onto constitutional law; a shift away from the abstract citizen to the concrete individual; and a shift away from the purely domestic constitution to the global constitution. Such deep transformations have however also prompted resistance.Footnote 71
A. Transformation
First, as argued by Halberstam,Footnote 72 European law brought judicial review to France by empowering domestic courts to examine the validity of the lois in the light of international law in general and European law in particular. The French loi was suddenly no longer supreme as it was no longer immune from judicial review. While, in January 1975, the Conseil constitutionnel held that it was not within its remit to examine the compatibility of legislation with Treaties, in casu the ECHR,Footnote 73 the Court of Cassation occupied, four months later, the space left empty by the Conseil constitutionnel by deciding that it was for ordinary courts to carry out that kind of examination and to set aside lois contravening with Treaties.Footnote 74 In so doing, the highest judicial court in France established the so-called ‘contrôle de conventionnalité’ (‘conventionality review’). From that moment on,Footnote 75 la loi could be disapplied by a mere first instance court in France on grounds of its incompatibility with an international agreement. De facto, that conventionality review was largely a human rights review since many treaties (in the first place the ECHR) are human rights treaties. With that review, it clearly appears that la loi was no longer seen mainly through its contribution to public liberties, but as a potential threat for fundamental rights.
Second, European law also accelerated the development of constitutional review as human rights review in France. Admittedly, the latter’s birth predated the rise of European law. The Conseil constitutionnel indeed expanded the scope of domestic constitutional review to include human rights as a parameter for review in July 1971, that is four years before the start of conventionality review.Footnote 76 To that effect, in the absence of a proper bill of rights in the main text of the constitution up to the present day, the Conseil constitutionnel conveniently found some instruments protecting rights in the Preamble to the 1958 Constitution. The Conseil boldly held that the Preamble to the 1958 Constitution, which refers to the DDHC and to the social-rights-minded Preamble to the 1946 Constitution, was legally binding as an integral part of the Constitution.
Although that judgement certainly promoted the approach to the French constitution as a legal instrument,Footnote 77 the latter’s contribution to the legal constitution was perhaps more modest than what we may think. It indeed needs putting into perspective in two respects, which both show the ‘old’ political constitution dimension of that judgement. Arguably, the judgement is not conclusive to establish a clear shift from public liberties to fundamental rights. The matter in issue, namely freedom of association, is not an individual right in the liberal meaning of freedom as non-interference. Freedom of association is rather a public liberty enjoyed by individuals collectively to foster political freedom. That judgement is not conclusive either of the superiority of the constitution over la loi since freedom of association was actually protected through that famous 1901 loi mentioned above. Through that judgement, the Conseil constitutionnel did not rely on a provision of the DDHC for instance. It gave instead constitutional status to part of the 1901 loi in order to declare a subsequent one incompatible with the former.Footnote 78 Furthermore, this judgement cannot hide the absence of ex post constitutional review for nearly forty years. In the seventies and eighties, there was no sign of constitutional review of the lois after their enactment that would allow individuals to vindicate their own rights. Although there were discussions in the nineties to that effect and while many jurisdictions in Europe had been familiar with that type of review for decades, that type of review was established only in 2010 in France as the question prioritaire de constitutionnalité (‘the QPC’ as the priority preliminary question on constitutionality).
The creation of the QPC itself is more evidence of the fact that the constitutionalisation of French public law was above all the result of European law as opposed to domestic law. It was indeed devised in order to end an incoherence whereby external norms were better protected than the constitution itself. The QPC was thus largely a domestic response to the constitutionalisation of the French legal order induced by European law.Footnote 79 Accordingly, it appears that the slow expansion in France of constitutionality review as human rights review of la loi was a response to the success of conventionality review to counteract la loi.
Third, European law has prompted the transformation of French administrative law.Footnote 80 Public interest used to be closely connected with the general will of which la loi was the expression. Since French administrative law as a derogatory law was justified by public interest, the weakening – or, say, the redefinition – of the latter as a result of both the liberal focus on individual rights and the imperatives of EU competition rules and free market, was bound to lead to a material convergence of administrative law with private law with the former being less and less derogatory to the latter.Footnote 81 The rise of a broader sphere of private autonomy, together with neo-liberal reforms and budgetary constraints coming from the European Union, have led to a reduction of the public realm and, accordingly, of administrative law. Its core concepts, such as ‘service public’ or ‘puissance publique’, have narrowed down and fewer situations are now governed by derogatory rules. In a nutshell, French administrative law has literally become less special as a result of the decline of the loi together with the general will.
B. Resisting transformation
Most interestingly for the purposes of this paper premised on law-as-culture, whereby it is assumed that law is a product of culture, the institutions of the law may however prove hard to change when culture is embedded, that is when it has given rise not only to a tradition but to a messianic model that sees itself as universal. There is resistance on the part of the declining, yet enduring tradition against the emerging one. While the various events that were narrated in the introduction were certainly political expressions of the tension between national republicanism and global constitutionalism in France, such expressions are also to be found in the very institutions of public law where it is apparent that the republican tradition remains strong despite the progress of global constitutionalism in France. While la loi itself appears durably undermined, there is resistance against the legal constitution with the persistence of the political constitution, that is the constitution seen primarily as a political instrument. There is also resistance against the conception of the French constitution as a mere national – geographical even – subset of the ‘global constitution’.
The primacy of politics over the law appears so deeply rooted in France that public opinion and elites alike seem to have difficulty not to think of the constitution as a political instrument in the first place. First, the content of the French constitution still does not reflect nowadays what a legal constitution is meant to feature. Should there be in France the clear intention to make the French constitution look like a legal constitution – at least to some extent – a proper bill of rights and a proper constitutional court composed of independent expert lawyers should be provided for in the constitution. For now, the legal constitution, which owes its existence to courts as opposed to the formal text of the constitution, appears weak in the absence of constitutional anchoring of fundamental rights. Fundamental rights review could indeed be overturned from one day to the next by the superior courts in France.Footnote 82 Interestingly, the constituent power itself still seems of the republican view that fundamental rights are not necessarily for the constitution to protect, but for la loi. The recent introduction in the constitution of the ‘liberty to abort’ among the matters that it is for la loi to regulate,Footnote 83 as opposed to the explicit recognition of a fundamental right for women to abort, is a clear reminiscence of the political conception of rights as public liberties and the role of the legislator in that respect.
Second, there is a deep belief in the political constitution in France. That is certainly the conviction of public opinion but also of the elites. The reluctance to relinquish the conception of constitutions as a public affair is apparent in the way in which the tools of the legal constitution are portrayed as tools of the political one. For instance, the former President of the Conseil constitutionnel misleadingly dubbed the QPC as the ‘question citoyenne’ (the citizens’ question) while it is simply a private procedure designed to allow individuals to enforce their rights before courts, certainly not an actio popularis of some sort.Footnote 84 Likewise, while the project of a formal constitution for Europe was steered by Giscard d’Estaing, a former president of France, calls for a political Europe have often emanated from that country.Footnote 85 With the failure of that project, very few French scholars still use the constitutional discourse to capture the nature of EU law (its material as opposed to formal constitution), as if, for most scholars, a constitution was bound to be political and take the form of a constitution, not only its substance.Footnote 86 It follows that there is a mismatch between the premises of global constitutionalism – in its liberal-legal dimension – and the perception and aspiration of the French people and elites alike vis-à-vis what a constitution should be in the first place.
Finally, there is also resistance in France against the conception of the constitution as a merely contingent, indistinctive geographical subset of the global – fundamental rights – constitution. Assumingly and somewhat understandably because of the messianic dimension of French republicanism, there is some reluctance in France to accept the idea that its political model does not have anything to say to the world anymore; or worse for the French self-understanding of exceptionalism, that there is nothing distinctively French that would be worth preserving. That resistance does not only come from public opinion. It also comes from judicial elites. For instance, the Conseil d’Etat, which in history has, because of its role, often been more mindful of politics than the Court of Cassation, recently insisted on the fact that the French constitution is not only about fundamental rights and that there are other ‘constitutional requirements’, in particular security, that should be taken into account before submitting to the CJEU’s jurisdiction.Footnote 87 By the same token, the Conseil constitutionnel has been the first constitutional court in Europe to come up with ‘constitutional identity’ as a limit to EU law.Footnote 88 While the exact contours of the latter remain uncertain, the former President of the Conseil constitutionnel revealingly talked about ‘the core of the Republic; what is crucial and distinctive’. While global constitutionalism makes the French constitution (and other national constitutions partaking in the global constitution) redundant and seemingly interchangeable, the discourse and tool of constitutional identity seems to suggest that there are national idiosyncrasies and that those are worth safeguarding against the individualising and homogenising trend underpinning global constitutionalism.
6. Conclusion
French public law has long been republican law. Eighteenth century philosophers such as Montesquieu and Rousseau together with the French Revolution laid down the foundations of modern public law which came to fruition under the Third Republic. Based on political freedom as self-rule and non-domination, those foundations encompassed the means through which to achieve that type of freedom in France: the constitution as a political act of the constituent power establishing a brand-new regime with its own institutional arrangements; a voluntarist conception of politics whereby, far from the liberal split between public and private, the state is to shape society; a formal-equality-based conception of the individual as an abstract citizen who is supposed to be primarily interested in participating in political deliberation than in the enjoyment of private goods.
Nevertheless, the most central institution of public law used to be la loi as Rousseau’s expression of the general will. The republican tradition of France thus largely overlaps with the légicentriste (loi-centred) tradition whereby la loi enjoyed the highest political, legal but also moral standing. La loi has been for decades, if not centuries, the main political instrument to guarantee political liberty and equality as it was both general and the product of democratic deliberation by the representatives of the people. La loi was both the instrument that would achieve the public interest and protect public liberties. That most eminent conception explains why judges, which were durably vilified in the wake of the French Revolution, used to be highly deferential vis-à-vis Parliament as the author of la loi. Judicial review of legislation was not an option at all. Instead, the objective to facilitate the implementation of the sacrosanct loi led to the incremental creation of a specific body of rules distinct from civil law: administrative law. Those rules were themselves to be protected against judicial interference by entrusting the Conseil d’Etat, that is a special administrative court historically mindful of the public interest as opposed to the sole private interests and rights of individuals, with the adjudication of cases involving the administration at large.
La loi has been shaken up ever since the seventies by European law, that is ECHR law and above all EU law. European law has indeed been a regional vehicle of global constitutionalism, the premises of which are radically at odds with those of French republicanism. Global constitutionalism reflects the transnationalisation of politics and its juridification within a liberal paradigm. While political change in France usually occurred through politics, it has since been taking place through law, with European law – its regulations, directives but also its operatory mode – leading to the decline of la loi, with the correlative rise of fundamental rights and of courts of law at the expense of the legislator, the transformation of administrative law through the narrowing of its scope and the privatisation of its rules and, ultimately, the evolving nature of the constitution from political to legal.
That said, while légicentrisme seems be a remnant of the past, some aspects of the long-standing republican tradition are still discernible in contemporary France. In particular, the political conception of the constitution as being both unique and not reducible to fundamental rights seems to be resisting in the public opinion but also for the elites. The discourse of constitutional identity, which operates as a legal limit to the penetration of European law into domestic law, underlies the distinctiveness of the French constitution and its collective dimension featuring not only individual rights but also national values and group aspirations.
Against that background, it is legitimate to ask whether the French constitution, which was long outshone by la loi, has really gained more authority from European law as the regional instantiation of global constitutionalism. On the one hand, with the QPC, constitutional review of statutes has become a serious competitor to conventionality review. The French constitution has indeed become undoubtedly more effective. It has acquired more authority through the expansive view thereof as a matter of legal entitlements for individuals rather than simply civic aspirations. It has also acquired more stability where legal certainty takes over political volatility. Arguably, the passage from the political to the legal constitution – and thus from the Etat legal to the Etat de droit – has therefore significantly enhanced the place of the constitution in France.
On the other hand, judicial expansion of fundamental rights review of legislation in France, be it in the form of constitutionality review or of conventionality review, has had paradoxical consequences for the standing of the French constitution. By making the constitution a private affair for private purposes around fundamental rights rather than institutional arrangements, a specific form of state, government or the separation of powers, that expansion may have somewhat undermined the political constitution. First, the ensuing ‘human rights-isation’ of the French constitution is self-defeating for that latter to the extent that it makes it lose its axiological importance. With a now prominent fundamental rights dimension, the French legal constitution tends to become just one, interchangeable fundamental rights source out of many. Worse perhaps, the focus on rights overshadows other aspects of the constitution, such as national values or principles that cannot be presented in terms of rights, like laïcité for instance.
Second, the globalisation of French constitutional law tends to negate the latter’s authority and distinctiveness. Despite the recently established superiority of the constitution over la loi in the French legal order, the constitution itself can only imperfectly claim to be supreme. It is indeed hard for domestic courts who have also endorsed the primacy of European law to make such contention and start arguing that the constitution is the most significant fundamental rights source. Within the metaphorical ‘global constitution’, the EU substantive constitution is to prevail over the national formal constitution. Furthermore, when reduced to individual rights as a common language across jurisdictions, the content of the French constitution can hardly be unique. It is shared with other instruments. Worse, it is itself interchangeable if the national constitution is merely seen as a contingent variant of the global constitution. Constitutional conflicts then become mere fundamental rights conflicts that should be resolved in the same way across the jurisdictions partaking in the global constitution. Accordingly, the very discourse of constitutional identity in France may be the swan song of the proud republican tradition.
In a world dominated by global constitutionalism and thus premised on the idea that individuals are part of various communities of faith and belonging, where the national community is seen as just one of them, even a hazardous one due to the dangers associated with nationalism, legal outcomes are likely to be the same everywhere. Where the legal pedigree of a legal instrument does no longer matter, there is little relevance in determining which norm is higher or inferior to the other, be it within or across domestic systems. There is also little relevance in determining whether a norm in a constitution is distinctive or specific. Courts of law, the most powerful actors within global constitutionalism, are just to find the ‘best fit’.Footnote 89
Competing interests
The author has no conflicts of interest to declare.
Open access
