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.

Philippe

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 Royal.gov.uk
– 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 »

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