Archives mensuelles : février 2013

Weeks 4, 5 & 6: The rule of Law in the UK & l’ « État de Droit » in France

The main aim of this module is to fulfill the objectives I have chosen at the beginning of the semester. I have mentioned those goals during the first week, but I have met some methodological problems, especially how to select only relevant informations and to structure my arguments in order for my presentation to be clear as well as interesting ! The three last weeks have been used to select a specific issue and to work on.
My project is more difference orientated, but we will sometimes use a functionalist approach, based on the ‘presumption of similarity’ as we have seen during the last lecture. Today, we are focusing on that point: how is the government in both France and England controlled by the constitutional system ? We will therefore understand that the idea is the same (to control the government – similarity) with a pretty similar solution (the rule of law / l’État de Droit).
My sources for that topic are some textbooks: « Constitutional and Administrative Law’ (AW Bradley & K D Ewing), « English Legal System » (C Elliott & F Quinn), « British Government and the Constitution » (C Turpin & A Tomkins), and the lectures I attended in France during my first year as well as my second year.

In the United-Kingdom, the Rule of Law is a concept first expressed by Dicey in 1885. According to him, the rule of law has three meanings. Firstly, it must fight against arbitrariness by promoting the ‘absolute supremacy or predominance of regular law’. Secondly, he described this concept as encompassing equality before the law, therefore everyone should be subjected to the same rules before the same courts. Thirdly, he thought that the common law system was a more suitable system to protect individual liberties, rather than a civil law system based on written rules.
I do not agree with that third point about the protection of citizens, because some rights may also be protected by written rules in a Constitution, and then applied to particular cases, like in civil law countries.
Over time, the meaning of the rule of law has of course changed. As Bradley and Ewing point out in their book, now it is seen as a fundamental principle of constitutional law promoting ‘law and order better than anarchy’, ‘government according to law’ and as a ‘broad doctrine affecting the making of new law.’ Consequently, this means that officials have to respect conventions, rules coming from tradition and practice, and statutory norms when acting.

In France, we usually talk about l’État de Droit. What does it mean ? Basically, everyone has to respect legal rules, as well officials as individuals. Representatives are elected according to legal rules, implemented before the elections, and the executive is limited by the rules edicted by the State itself, which reminds us the notion of ‘government according to law’ of the rule of law. All of this comes from Hans Kelsen’s work about norms hierarchy and ‘Rechtstaat’ in the 20th century. According to that theory, every norm is legal/lawful if it complies with a legal rule that is superior in that hierarchy. We can see the civil law system: the rules have to be written, and the Constitution is at the top of that hierarchy. Every rule must respect that Constitution. Therefore the officials have to respect those rules when acting, and are accountable for their decisions, democratically during the elections or judicially before the ordinary courts (which joins Dicey’s view about equality before the law !). In France, the Constitution is the most powerful source of law. International treaties ratified by the State (art. 55 Constitution), ordinary law and the administrative decisions have to respect the Constitution, and may be subjected by a control by the Conseil Constitutionnel (art. 61 & 61-1 Constitution).
Therefore, I have discovered that it is the same idea (protect individual rights and freedoms – functionalist approach), but that the civil law and common law systems in France and England use a different concept which leads to a protection of the citizens and a control of the State’s action.


Week 3: Focus on the common law and civil law divide


This week my work will be focused on the differences between the common law and civil law traditions. My sources are the lectures dispensed by Dr Chloe Wallace, the textbook « Constitutional and Administrative Law » written by Bradley and Ewing, the texbook « English Legal System » written by C. Elliot & F. Quinn but also some lectures dispensed in France in constitutional law.

The common law is deeply rooted in the decisions taken by the King’s judiciary, namely the rules come from particular cases, with an inductive reasoning. Those particular facts and cases are judged, give rise to a solution given by one or several judges: from those judgments emerge rules and principles, which can be found in the ratio decidendi given by the judges. The ratio decidendi has been described by Sir Rupert Cross as ‘any rule of law expressly or impliedly treated by a judge as a necessary step in reaching his conclusion »: it is the most important part of the decision, opposed to the obiter dicta. An important figure, maybe the most important figure in the common law tradition is that of the judge, because of the significance and of the role of his or her decisions, but also because they were long ago on the behalf of the King to create the laws before the Act of Settlement 1700 which granted Parliament more independence (Elliot & Quinn). Therefore it appears that the common law traditions is characterised by a top-down system, with the rules constructed by the courts.

Does it mean it is unfair ? Does it mean that it leads to arbitrariness from judges ? Arguably, not. Over time, a hierarchy of courts has developed, and, generally, the lower courts are bound by the higher courts; this hierarchy has developed and with it the idea of binding precedent, namely a judge must respect a decision given by a higher court in cases where the facts are the same. It provides certainty and predictability to the law, and also fairness: same cases are treated alike. Moreover, it provides efficiency (the courts will not have to solve again and again the same problem) and it permits to unify the law.
There are also statutes, which are the Acts of Parliament, and are interpreted narrowly. They are useful to modify or clarify the case-law, sometimes to complete it, but are the product of policy, very often from the Government through its majority in the Commons (Bradley & Ewing, Constitutional & Administrative Law).
By contrast, the civil law comes from Rome, and from the rules under the Republic and Empires during the Antiquity. Those rules have been discovered at the end of the 11th century, more precisely in Italy, in Bologne, and have led to important thinking by scholars, which developed and expanded in Universities in the continent, in countries such as France, Germany and Spain.
It is, in theory, completely different from the common law tradition, because here the rules are abstracts, and are written in codes. There are general principles contained in codes, and solutions are given in a case-by-case basis, applying the rules from the codes. It is therefore also a top-down system, because the rules are (ideally) decided by the legislator. Why are the codes so important ? Because, in this tradition, it aims at covering entirely a particular field of the law, for example the criminal law (with the « Code pénal » in France) or the civil law (the « Code civil »), and because there is the objective of accessibility of the law, according to the latine principle « Nemo censetur ignorare legem »: no one must be ignorant of the laws, everyone must know the laws. The decision-making by judges is clearly deductive, logic: there is the law, then there are the facts, and if the facts correspond to the law, therefore the law apply to them. We have seen that during the lecture with the prohibition of the intentional murder.


Week 2: background informations about the English and the French constitutional systems

Hello !

This week, my research will focus on background informations about the English and the French constitutional systems: we are talking about the two systems as they are today and their main characteristics. It is a very important step, because my work will focus on the differences of the two systems. And before to assess and analyse the differences, we must have an overview of those constitutional systems, of their constitutional rules.
Nevertheless, I want to precise that the informations I will select will be summarized, because this topic is very broad ! Maybe a thesis should be more appropriated for that exercise, unfortunately it will not be possible to produce during this semester !

I have chosen to select informations in two books this week: ‘Constitutional and Administrative Law’  of Bradley & Ewing, about the English constitutional system, and ‘French legal system’, written by Elliott, Vernon & Jeanpierre (more precisely the chapter 2).

Queen Elizabeth II

Her Majesty the Queen Elizabeth II

As concerns the English constitutional system, the first point we have to make is that the United-Kingdom is a Monarchy, a constitutional Monarchy. We must note that, however, the Queen only possesses limited powers, the Crown prerogatives.

Besides, the English constitution is unwritten. That is to say that there is not a written document like in France (‘la Constitution de la Cinquième République’) or in Germany (the ‘BGB’) which contains the main rules of constitutional law.
The main sources of the Constitution are: the legislation (as a corollary to the principle of parliamentary sovereignty), the case-law (with the doctrine of precedent) but also the constitutional conventions, which are of significant importance, more than in France. As a common-law system, we must note the importance of the case-law. An important part of the rules comes from case-law in the United-Kingdom, from particular situations judged, as we have seen during our lectures. It is therefore a top-down system, like in the common law tradition, with many rules developed by the courts through judgments, and to fill the gap of the case law the statutes produced by Parliament.

Nick Clegg (Lib Dem) and David Cameron (Conservative Party) in 2010, next to the general elections.

Another main feature of the English constitutional system is the party system, which is organised on the two main parties in the United-Kingdom: the Labour and the Conservative Party, as a consequence of the first past to post system. Of course, a scrutiny shows that it is not always true: sometimes, a third party may play a major role. It was for example the situation in 2010 when at the general elections nor the Labour neither the Conservative Party won the majority of the seats in the House of Commons. The two parties needed to form a coalition with the LibDem, led by Nick Clegg, who chose to rally D. Cameron’s party, and to belong to the Government.

De Gaulle in 1958 with the Constitution

General de Gaulle in 1958, with his hand on the Constitution

Regarding the French constitutional system, its history is very different from the English
constitutional system. Indeed, its background has been provided by the 1958 Constitution (a written constitution, sometimes called De Gaulle’s constitution because of his influence in its drafting), which establishes the fifth Republic. Why did the General found a new Republic ? It was because France encountered many problems in Algeria, a former colony, and because during the third and also the fourth Republic French governments were very weak, with a powerful Parliament.
We can see the importance of the written document, which reflects the civil law tradition of the French system, with abstract principles which apply to the constitutional actors and are controlled by the ‘Conseil Constitutionnel’, the constitutional court. As we have seen during lecture 2, it has many advantages: it is accessible to the people, and might be complete. As Peter de Cruz writes, the civil law tradition is characterized, inter alia, by a authoritative and comprehensive codification based on general concepts (abstract rules and principles).
One can understand that the most important law is top-down, elaborated by legislators (the constitutional legislator), influenced sometimes by scholars. It reminds us the civil law tradition.
The Constitution is modified by Constitutional laws, which require a specific procedure: the President must ask the reunion of the two Houses of Parliament in a Congress, and obtain a vote from a 3/5 majority. The second option is to use the referendum procedure, which has been used only 9 times since 1958 (because people do not really vote on the text, but rather about what they think of the President who asks the question). There is a role of the constitutional conventions, but less important than in the English constitution. An example of this in the creation of the Prime Minister during the third Republic, firsly named « President du Conseil » (Council President).
The party system is not very important in France, because, although the two major parties

The logo of the new center-right party in France

The logo of the new center-right party in France

dominate the political life and the different elections, it is not always the case. For example former President Valéry Giscard d’Estaing has been elected President in 1974 with his center-right party. And there is often place for a third party, as in 2009 at the european elections with the Green Party (‘Europe Écologie Les Verts) or in 2012 at the presidential election with the National Front (extreme-right, extremist party). The two major parties can also be threatened bu the emergence of an important center-right party called ‘UDI: Union of Democrats and Independents’, led by former Minister Jean-Louis Borloo.


PS: More informations … in English … but also in French !
– about the government coalition in the UK: Article BBC 2010
– about the constitutional monarchy in the UK: Website
– about the foundation of the fifth Republic by the General de Gaulle: La Cinquième Constitution
– the creation of the center-right party in France: Article of the website « the political bouillon »