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.

 

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