The Constitution of France

A Contextual Analysis

Sophie Boyron

• Publisher: Hart Publishing
• Year: 2012
• ISBN:
  9781782250562
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

The centrepiece of this work is the French Constitution of 1958, portrayed by the author as an innovative hybrid construct whose arrival brought the constitutional stability that had eluded France for centuries. But the creation of the 1958 Constitution was not an isolated act; it represents part of an evolutionary process which continues to this day. Even though it is codified, the constitution of the Fifth Republic has evolved so markedly that some commentators have dubbed the present institutional balance the 'Sixth Republic'. It is this dynamic of the constitution which this book seeks to explain. At the same time the book shows how the French constitution has not developed in isolation, but reflects to some extent the global movement of ideas, ideas which sometimes challenge the very foundations of the 1958 Constitution.

1

French Constitutional History

A Difficult Coming of Age

The Constitutional ‘Big-Bang’: The Revolution of 1789 – The Difficult Implementation of Constitutionalism – Understanding French Constitutional History – Conclusion: The Merger of Constitutional Traditions?

HISTORY IS KNOWN to help with the understanding of uncodified constitutions but it should not be underestimated as a grid of explanation for codified ones. In fact, constitutional history is paramount when it comes to the development of ideas, concepts and institutions in French constitutional law. Even though the present constitution was adopted relatively recently, many of its choices and provisions can be traced back to a determining event in the constitutional past. Indeed, the 1958 constitution is the direct result of a long evolution. Relevant aspects of this history must therefore be brought to the attention of the reader.

French history is often divided into two periods: pre and post Revolution. This representation seems to be particularly prevalent when it comes to constitutional history. It emphasises the ideological, societal, cultural and legal break that took place in 1789 when a revolution overthrew absolute monarchy. The events of 1789 are used to mark the beginning of ‘modern’ constitutional history in France: the new political elite wanted a fresh start and with revolutionary zeal, the old legal system – institutions, legislation, rules and all – was soon abolished in its quasi-entirety. Consequently, the presentation of constitutional history will begin with the events of 1789.

Although this chronological survey will be used mainly to highlight the difficult acclimatisation of classical constitutionalism in France, attempts will also be made to organise the historical data and explain this apparently chaotic constitutional evolution. This will help in understanding the provisions and practices of the present constitution.

THE CONSTITUTIONAL ‘BIG-BANG’: THE REVOLUTION OF 1789

The Revolution of 1789 is often portrayed in France as a real watershed in both political and legal terms. Modern constitutional history is often deemed to have begun with this quasi-mythical event. Not only did the revolutionaries establish a completely new constitutional settlement with a new organisation of society to boot, but they founded the legitimacy of this new system on a clean break from the past. One may wonder whether this representation of history was not the first of many symbolic representations which are so powerful in French constitutional law. In fact, legal historians warn us against accepting unquestioningly this divide: many post-revolutionary institutions have traceable roots to pre-revolutionary ones.¹ As far as constitutional change is concerned, the Revolution of 1789 creates a clear discontinuity which hides unnoticed in its midst a thread of continuity.

Before the new constitutional settlement is examined, it is necessary to investigate the reasons which led to the Revolution of 1789. To grasp the magnitude of the change established by the revolutionary settlement, one must understand the pre-existing monarchical order and its problems.

The Reasons for the Revolution of 1789

To survey in a few paragraphs the reasons and circumstances leading to the Revolution of 1789 may seem at best foolish and at worst doomed to failure. Like many events of this magnitude, the Revolution was not the result of one easily identifiable factor, but the complex combination of many. Ideological, philosophical, economic, monetary, social, political, constitutional and administrative factors (to quote the most important) all conspired to create an extremely unstable (one might say explosive) situation in France prior to spring 1789.

Administrative and Judicial Organisation

By the end of the eighteenth century, the administrative and judicial organisation of the French territory was obsolete and inefficient.² France was divided into provinces and each province had a top court – called Parlement – which applied the law and developed rules and principles independently from those of other provinces. In addition, a multiplicity of lower courts, which had been reformed in successive waves, competed against each other. Furthermore, the northern provinces and Parlements resorted to customs and unwritten rules while those in the south favoured written provisions and the Roman law. Consequently, there was no uniform application of the law throughout the kingdom. To add to this complexity, all ecclesiastical matters were adjudicated upon by a separate judicial system. The country harboured competing legal systems and a great many efforts were spent ‘clarifying’ the jurisdictional divide between the various courts. Finally, cases often went on for a considerable time, sometimes spanning many generations and in some cases, even ruining the parties in the process.³

The administrative organisation of the country was similarly shambolic. In the sixteenth century, a body of controllers – the intendants – was created to tour and control the provinces with regard to taxation, the army and justice. Although these were meant to be temporary positions, by the eighteenth century, the intendants were a permanent fixture and had become the king’s representatives in each province. This acknowledged the failure of the administrative mechanisms already in place: the intendants battled constantly with the Parlements and kept an eye on the fermiers-généraux, responsible for levying taxes. The monarchy was losing its administrative grip over the country.

Constitutional Challenges

French kings traditionally ruled as absolute monarch and did not recognise many (if any) limitations to their power and sovereignty. Unlike the British Crown, which had been forced to give up a number of its prerogatives and was working with the Parliament, the French Crown managed to eschew such political and constitutional restrictions. Although created in 1302, the Etats-Généraux, the Parliament of the time, had not been convened since 1614.

Paradoxically, there was a long-standing challenge to the authority of the king. In practice, the Parlements imposed serious limits on the will of the sovereign. This was possible because of the technique used to bring into force the king’s proclamations. Proclamations did not have legal effect until registered by the Parlements. This registration ought to have been automatic but the Parlements used it to contest reforms that did not meet with their approval. When in the decades preceding the Revolution the monarchy attempted to put in place much-needed reforms, it was repeatedly thwarted by the Parlements.

Economy and Finance

The finances of the realm and the state of the economy are often presented as the catalysts for the Revolution of 1789. The task of levying taxation was contracted to the fermiers-généraux: they agreed to pay the Treasury a predetermined sum each year and were entitled to keep any surplus. This system of taxation was antiquated, inefficient, institutionalised abuse and led paradoxically to high levels of tax evasion. By the end of the eighteenth century, the French monarchy was slowly starved of tax revenue while it was spending heavily on supporting the War of Independence in America. As the finances of the kingdom reached dangerous levels in the 1780s, an overhaul of the tax system became necessary. The monarchy was close to bankruptcy.

In addition, the French economy was affected by a deep economic crisis. The 1786 free trade agreement with the United Kingdom impacted French industry badly. Unable to compete with cheaper imports (particularly textiles), many industries struggled and unemployment rose rapidly.⁴ This led to major riots in Paris in August 1787 and again in May 1788. Also, a very poor harvest in 1788 led to a massive increase in the price of flour and bread – the staples of the time.

Organisation of Society

The class system in eighteenth-century France goes back for the most part to the Middle Ages. Society was formally divided into three classes: Nobility, Clergy and Third State. The Third State was a disparate group including artisans, the peasantry and bourgeoisie. The finances of the Nobility were precarious and many aristocrats came to rely on paid positions at court. While political power was mainly in the hands of the Nobility and High Clergy, economic power was slowly transferred to the bourgeoisie. This divide would be difficult for any society to countenance in the long term. Furthermore, the finances of the monarchy were such that successive monarchs sold positions and titles to the bourgeoisie. For instance, the bourgeoisie acquired judicial positions in this way and joined the ranks of the Nobility. However, this gave the bourgeoisie little access to real political power (but explains the systematic opposition of the Parlements). Overall, the class structure was rigid. The 1789 Revolution allowed its transformation and led to a sudden change of elite with the bourgeoisie replacing the Nobility at the helm of the State.

Philosophical Movements

The situation in France, as described above, was all round difficult and chaotic. It is not surprising, therefore, that philosophical movements were born in reaction. The second half of the eighteenth century has been baptised the period of the Enlightenment by reference to the ideology which aimed to shed a new light on all aspects of society and combat the deep errors ingrained in the monarchical regime: it attacked the organisation of society (mainly its class system), it contested the political value and efficiency of absolute monarchy, rejected the economic choices of a badly reformed feudal system, and denied the right of any religion to organise society and political power. The movement of the Enlightenment wanted to establish rationality as a founding principle for a new organisation of society. From this follows a right of all men to formal equality. Furthermore, it reduced religion to a branch of philosophy. While the monarchy found in religion the source of its political and moral legitimacy, democracy would provide the legitimacy for this new society.

The review of the various factors that culminated in the 1789 Revolution leaves an impression of inevitability and doom. While it is impossible to decide which factors were truly crucial, their combination was decisive.

The First Constitutional Settlement and Its Failure

As mentioned above, by 1789 Louis XVI needed to pursue essential fiscal reforms. On 5 May 1789 the king finally convened the Etats-Généraux. Members of each class were elected by their peers in Paris and in each province. Many representatives of the Third State brought demands with them: people wanted formal equality, the adoption of a codified constitution, the reform of the administration, but nonetheless the continuation of the monarchy. This reflected the belief of many revolutionaries: a constitutional monarchy was seen as an appropriate solution. Although with 578 members, the Third State⁵ outnumbered the Nobility (270 members) and Clergy (291 members) combined, the votes were counted per class; the Third State was systematically outvoted. Immediately, representatives of the Third State began to formulate two demands: that the votes be counted per person and that all three groups sit together. The continued refusal of the Nobility and Clergy⁶ to accede to either demand led the Third State on 17 June to rename itself the ‘National Assembly’, thereby clearly proclaiming the sovereignty of the Nation. In the same sitting, the new Assembly authorised the temporary levy of the new taxes.

At first, the king refused to recognise the new Assembly and annulled its resolutions. However, by 27 June the king acquiesced in the merger of all three classes into the National Assembly. In the meantime, the National Assembly had taken an oath on 20 June to give the country a new constitution. On 9 July the National Assembly renamed itself the ‘Constituent Assembly’. The storming of the Bastille on 14 July transformed this legal revolution into a popular uprising. The Constituent Assembly proceeded to draft a constitution establishing a constitutional monarchy and enshrining a declaration of the rights of man and citizen. Furthermore, on 4 August 1789 many aristocratic privileges were abolished and the guilds dismantled.

The first constitution was adopted on 3 September 1791; it incorporated the declaration of the rights of man adopted on 26 August 1789. The constitution possessed some interesting characteristics: sovereignty was placed in the French people, and both Parliament and the king were only representatives of the people. A strict separation of powers existed between the Legislative Assembly and the Executive. The Assembly passed legislation and authorised all public spending. The king headed the administration of the kingdom. He could not dissolve the Assembly and the ministers appointed by the king were not responsible to it. Nevertheless, the king had a temporary legislative veto. This first constitution may have placed sovereignty formally in the people but the people did not exercise it much. A system of indirect suffrage was adopted for the elections to the Assembly and the right to vote was recognised only for citizens paying a significant amount of tax. Also, all domestic servants were barred from voting.⁷

From the beginning, the constitution was implemented and applied in an atmosphere of suspicion and distrust: the attempt by the king and his family to flee the country in June 1791 was perceived as bordering on treason. On 10 August 1792, the king vetoed two key pieces of legislation. In response, the crowd invaded the royal residence and Louis XVI was taken prisoner. Another Constituent Assembly was called to draft a new constitution. With the execution of the king on 21 January 1793 began a long period of constitutional instability.

THE DIFFICULT IMPLEMENTATION OF CONSTITUTIONALISM

French constitutional law rests on a striking paradox: while the change of constitutional paradigm happened very quickly in 1789, it took a further 200 years for democracy to be fully embedded in constitutional and political practice. In contrast with the United States, where the 1776 constitution generated political stability, France endured a long period of political and constitutional instability punctuated by revolutions, coups and civil war.

French constitutional law has been tainted by these difficult beginnings. Constitutional lawyers and politicians have struggled to establish a system that engenders political stability. Every so often, a new constitution was drafted in an attempt to create this elusive stable and democratic regime; and more often than not, the experience ended in a coup or revolution. To rid France of this constitutional malaise, drafter after drafter tried new constitutional recipes, invented new mechanisms, fashioned new institutions. In many ways, this is the creed of classic constitutionalism ‘à la française’: in a triumph of optimism over experience, constitutional lawyers and politicians adopted constitution after constitution, in the hope that one day they would discover the right one. The philosophy of the Enlightenment taught French revolutionaries to believe in the power of constitutional law to tame and shape the political system. Accordingly they believed that a well-written constitution would suffice to capture, frame and submit political behaviour and practices to the law. Soon, the failures of past constitutions were explained by the inadequacy of the specific constitutional instrument: the inability to devise the necessary mechanisms, to create the appropriate provisions or to design the right institutions. This led drafters to experiment constantly in search of the elusive perfect constitution. Consequently, new constitutions were often written in a reaction to the previous constitutional effort. At first, constitutional systems swung violently from parliamentary to presidential regimes, from constitutional monarchies to republics, from unicameral to bicameral parliaments, from indirect to direct suffrage.

Over the last 200 years, most types of constitutional system have been tried in France. A chronological presentation of this evolution aims to dispel any lingering belief that following the king’s execution, the revolutionaries managed to establish a stable popular democracy.

The First Republic and the Terreur

By 1792, constitutional monarchy had failed and this system was abandoned. The constitution of 3 September 1791 was barely in force when Louis XVI was deposed, but it was set aside and a new Constituent Assembly – the Convention – was convened. From now on constitutional change would be envisaged only as a complete break.

However, the rejection of the first constitutional monarchy threw the political system off balance for some time. It radicalised political attitudes and discourse and destroyed any chance of achieving political stability. At first, demo...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Table of Cases
• Table of Legislation and other Instruments
• 1 French Constitutional History: A Difficult Coming of Age
• 2 In Search of the Constitutional Fundamentals
• 3 The Primacy of the Executive
• 4 Towards a Renewal of the Parliament
• 5 The Rise of Judicial Power
• 6 The Constitution and its People
• 7 From Centralised Unity to Multilevel Constitutionalism
• 8 The Dynamics of Constitutional Change
• Index