Article by Cynthia Vroom
More than seventeen years have passed since France's Conseil constitutionnel (Constitutional Council) handed down its ‘revolutionary’ decision of July 16, 1971, elevating individual freedom to the status of a constitutional right and establishing the Conseil constitutionnel as the protector of that freedom. That decision signaled the beginning of a transformation of the French legal system, characterized by an erosion of legislative omnipotence and emergence of the Constitution as a principal source of supralegislative norms. The impact was particularly strong in the area of individual rights within the criminal justice system, often criticized as offering inadequate protection to the individual confronted with the police power of the state.
Although the revolution was a gradual one, slowed by traditional French mistrust of the judiciary and initial hostility on the part of administrative and judicial authorities, it has taken root in the mainstream of the French political system. Further, recent developments indicate that the jurisprudence of the Conseil constitutionnel is beginning to bloom in the rocky soil of the civil-law code system.
These developments are of particular interest to commonlaw observers for several reasons: (1) they demonstrate the increasing effectiveness of the French system of a priori constitutional control in protecting individual freedom; (2) they represent a fundamental shift in the French political structure, that is, the legislator's submission to constitutional norms; and (3) they symbolize the emergence of constitutional jurisprudence as an active force in French law.
The impact of the decision of July 16, 1971 and its immediate progeny have been well documented elsewhere. What has not been extensively discussed outside France, however, is the subsequent widening of those initial ripples and their gradual increase in scope, leading France to the threshold of a new era in the constitutional protection of individual freedom. This Article will trace the jurisprudence of the Conseil constitutionnel and show how this ongoing evolution is leading to an effective system of constitutional control, reaching beyond the purely formal analysis of a priori control toward a real protection of individual rights in France.
About the Author
Cynthia Vroom. Mat̂re de conférences (visiting), Faculty of Law, University of Aix-Marseille III 1988; Ph.D. University of California, Los Angeles 1981; J.D. Stanford University 1987.
Citation
63 Tul. L. Rev. 265 (1988)