Judicial Review of Acts of Parliament: The French Experience

AuthorNelius Carey
PositionSenior Sophister Law and French student, Trinity College, Dublin
Pages71-86
Judicial
Review:
The
French
Experience
JUDICIAL REVIEW
OF
ACTS
OF
PARLIAMENT:
THE
FRENCH
EXPERIENCE
NELIUS
CAREY*
Introduction
In
western
society, where
today
the
Constitution'
is
regarded
as
the
foundation
upon
which democracy
is
built,
it
is
accepted
that
such
a
Constitution
cannot
simply
be
ignored
by
the
legislature
in
the
form
of
laws
which defeat
its
provisions:
to
hold otherwise
would
be
considered
a
nonsense,
though
in
former
times this
was
not
axiomatic,
least
of
all in
France.
Therefore
some
form
of
judicial
review
of
acts
of
Parliament
is
necessary
to
ensure
respect
for
the
terms
of
the
2
Constitution.
The
French
system
of
judicial
review
raises
three
points
which beg
particular
attention.
First,
the
very
idea
of
effective
judicial
review
of
acts
of
Parliament
did
not
exist
in
early
post-
Revolutionary
France,
revealing
a
latent
tension
between
the doctrines
of
parliamentary
supremacy
and
judicial
review.
A
historical
reticence
towards
any
form
of
judicial
review
whatsoever
is
discernable.
This
historically
explicable
reticence
will be considered
in
conjunction
with
the
second point.
Senior
Sophister
Law
and
French
student, Trinity
College,
Dublin.
Farrell
(ed.),
De
Valera's
Constitution
and
Ours
(1988)
chapter
1,
where
Canny
says:
"the
birth
of
the
modem
constitution
can
be dated
precisely
to
the closing
decades
of
the
eighteenth
century. This
is
so
because the
Enlightenment
in
both
Europe
and America
then
questioned
the nature and
origin
of
political
authority,
and
discredited
the
notion
that
power
should belong exclusively
to
hereditary
monarchies
and
aristocracies."
2
Schwartz,
American
Constitutional
Law
(1969)
states
at
p.9:
"the doctrine
ofjudicial
review
of
the
constitutionality
of
laws,
rather
than
the
mere
fact
that
its
constitution
is
a
written one,
sharply differentiates
the American system
from
that
in
Britain"
where
the
"foundation
stone
of
constitutional
structure
is
the
doctrine
of
parliamentary
supremacy,
that
Parliament
had
the
right to
make
or
unmake
any
law
whatsoever."
19981
Trinity
College
Law
Review
Secondly,
once an
organ
with powers
of
judicial
review
was
established,
its
evolution
from
a
court
vested
with technical,
albeit
important, tasks
such
as,
for
example,
the
demarcation
of
powers
between
the
parliament
and
the
government
on
the
one
hand,
to
an
organ
of
competences
which
surpass
its
original
functions,
serves
as
an
inspiration
to
those
who
feared
that
judicial
review
as
it
exists
in
Ireland or
America
would never
reach
France.
There,
a
series
of
cases
allowed
for the
gradual
growth
of
this
organ
which
has
unraveled
itself
from
its
constitutional strait-jacket.
The
structure
and
membership
of
this organ were
also
intended
to
perpetuate
this
subordination.
Thirdly,
since
judicial
review
was
established
in
1958,
it
is
interesting
to
note
that,
although
the
class
with
access
to
review
in
France
has
increased,
it
is
still
extremely limited
when compared to
the
Irish
position.
Judicial
Review
of
Acts
of
Parliament:
Establishment
(i)
Historically reticent
towards
any
form
ofjudicial
control
over
'the
expression
of
the
general
will'
The
Constitution
of
4
October
1958,
which
establishes
the
Fifth
Republic,
provides
for
judicial
review
of
acts
of
Parliament
in
circumstances which
are
defined
in the
Constitution.
This
is
in
fact
very
innovative
for
a
country
which had, historically
at
least,
regarded
any such
review
as
a denial
of
the
sovereignty
of
the law, the
expression
of
the will
of
the
people.
To
better
understand
this
distrust
of
any form
of
judicial
review
it is
necessary
to
look
to
the
history
of
the
court system
in
France
and
the
events
which fostered
in
the
people
a
fear
and
disapproval
of
judicial
power
and
in
particular
any form
of
judicial
review
of
acts
of
Parliament.
3 See
Dademo
and
Farren, The
French
Legal
System
(2
ed.,
1996),
at p.
1 1
where
the
disapproval
of
judicial
review
is
summarised
as follows:
"judicial
review has always
been
seen
in
France
as
being contrary
to
the
principle
of
'the absolute
sovereignty
of
the
law'
(similar
to
the
principle
of
English
parliamentary
supremacy).
The
law
being
"the
supreme
expression
of
the
will
of
the
people",
a
phrase
taken
from
'The
Social
Contract'
by
Jean
Jacques
Rousseau
(1762).
[Vol.
I

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT