I believe that constitutional courts play a major role in legal systems. After the introduction of the 'Conseil Constitutionnel' in 1958, Louis Favoreu, a public law teacher, claimed, 'L'Etat de droit est désormais complet en France'. Indeed, it is often considered that constitutional litigation contributes to the modernization of the political and legal systems. The Constitution of a State is usually the supreme rule, it is situated on the top of the hierarchy of norms. Every national norm has to be subordinated to the Constitution. Thus, it seems logical to institute an organ whose task is to enforce the Constitution. However, one can say that Dean Favoreu has exaggerated. When we have a look at the French Constitutional Council, we can notice that its role has considerable limits, and that the Constitution can not be always protected by this institution. Even the name of the institution is remarkable, it is not a 'court' like in several countries, but a 'council'. A comparison is thus able to highlight these limits, to evaluate the differences between countries, and finally to understand the role and the exact impact of the introduction of constitutional litigation in diiferent states. Thus, one can find comparisons of constitutional courts in several doctrinal works.
[...] Le Conseil constitutionnel français et les cours constitutionnelles This essay is composed in three parts. The first part tends to expose the interest of my analysis, and to explain why it cannot be a perfect comparison. I try in this part to warn the lector: a comparison always has some limits, and its interpretation can be dangerous. Obviously, my first aim is to encounter these limits. The next part represents the act of comparison. As I deliberately emphasize my analysis on the French Conseil Constitutionnel, I start with a brief presentation of this institution, before comparing it in more details with similar foreign institutions. [...]
[...] When we have a look to the different European courts, we can say that a court has those features: it is an organ that has for purpose to say the law. A constitutional court has consequently for purpose to say the constitutional law. It has for norm of reference a Constitution and a whole of constitutional statutes. It judges legal arguments and has a specific organization. In addition, a court is permanent. It is clear that the writers of the 1958 Constitution did not want to create a Constitutional Court, but a mere Council. Indeed, its organization and its functioning do not look like that those of a court. [...]
[...] However, we can notice that in other European countries, Constitutional Courts have approximately the same competences. In Germany, the Federal Constitutional Court has for task the judicial review, but it is also competent to supervise elections, or to judge disputes over competences and procedures, e.g. between the States and the federal institutions. In Italy, the Constitutional Court of Italy is also the judge of “Conflicts arising from allocation of powers of the State and those allocated to State and regions, and between regions; Accusations made against the President of the Republic, according to the provisions of the Constitution.”[21] The Constitutional Court of Bulgaria has also the task of control the compliance of laws with international treaties, which the French Council denied in 1975[22]. [...]
[...] I aims and limits of this comparison The aims I believe that constitutional courts play a major role in legal systems. After the introduction of the Conseil Constitutionnel in 1958, Louis Favoreu, a public law teacher, claimed: “L'Etat de droit est désormais complet en France[1]”. Indeed, it is often considered that constitutional litigation contributes to the modernization of the political and legal systems. The Constitution of a State is usually the supreme rule: it is situated on the top of the hierarchy of norms. [...]
[...] In this sense, I transcend some borders that I would meet if I had proceeded differently: I don't have any problem of understanding with French language or culture, what permits me to procure myself enough information that I know I have well understood. Thus my emphasis on the French institution aims at understanding the perspective. The limits Having the perspective is not enough to attain a perfect comparison. First, the perspective itself has limits. As James Q. Whitman has shown, the account is not always true[3]. Indeed, I can explain certain differences between legal rules in a wrong way. [...]
Bibliographie, normes APA
Citez le doc consultéLecture en ligne
et sans publicité !Contenu vérifié
par notre comité de lecture
