Dynamics in the French Constitution: Decoding French Republican Ideas

215 Pages·2013·1.08 MB·English

by  David Marrani

Dynamics in the French Constitution

The promulgation of the Fifth French Republic Constitution in 1958 marked
the end of a complex constitutional history that has since 1789 seen more
than twenty constitutions and fi ve Republics. Lasting now for more than fi fty
years, the Fifth Republic Constitution has proven to be the right settlement
for the French people: a consensual text.
However, while offering the appearance of stability, the Fifth French
Republic Constitution has often been reconsidered and changed, not least in
the year of its fi ftieth anniversary, when the Constitution was ‘modernised’.
These dynamics of the Fifth Republic Constitution are neither a recent
matter nor entirely the result of the successive constitutional amendments.
Instead, the history of the Constitution has involved the resurgence of
repressed archaic elements from the a ncien régime, while the social, economic
and environmental contexts have penetrated not only the text itself but more
extensively its spirit and, behind it, the philosophy and our perception of the
Republic.
In Dynamics in the French Constitution , David Marrani questions the founda-
tions of the French Fifth Republic. In using specifi c themes, current and
traditional debates, contemporary and archaic factors, that have enlightened
the road of a long-lasting Republic, the book explores some of the changes of
the last fi fty years and the tensions that are present within the constitutional
text. In combining theoretical concepts of constitutional law with key
contemporary and historical developments, such as the European integration,
the response to environmental challenges, the practice of human rights
and the pillars supporting French republicanism, this book offers varied
and creative tools for a better understanding of the Republic of today.
Dr David Marrani is a Senior Lecturer in public law and comparative law at
the University of Essex, UK. He lectures in particular on French constitu-
tional law and comparative public law.
Routledge Research in Constitutional Law
Available titles in this series include:
Weak Constitutionalism
Democratic Legitimacy and the Question of Constituent Power
Joel I. Colon-Rios
Engineering Constitutional Change
A Comparative Perspective on Europe, Canada and the USA
Xenophon Contiades, Centre for European Constitutional Law
Freedom of Speech
I mporting European and US constitutional models in transitional democracies
Uladzislau Belavusau
Post-colonial Constitutionalism in the Commonwealth
Peace, order and good government
Hakeem O. Yusuf
Dynamics in the French
Constitution
Decoding French republican ideas
David Marrani
Routledge
Taylor & Francis Group
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First published 2013
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© 2013 David Marrani
The right of David Marrani to be identifi ed as author of this work has
been asserted by him in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
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British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Dynamics in the French constitution : decoding French republican ideas / David Marrani.
pages cm. – (Engineering constitutional change)
Includes bibliographical references and index.
ISBN 978-0-415-68371-5 (hbk : alk. paper) – ISBN 978-0-203-79865-2 (ebk : alk. paper)
1. Constitutional law–France. 2. France. Constitution (1958) 3. France–Politics and
government–1958- 4. France–Politics and government–20th century. I. Title.
KJV4079.M37 2013
342.44–dc23 2013004289
ISBN: 978-0-415-68371-5 (hbk)
ISBN: 978-0-203-79865-2 (ebk)
Typeset in Garamond
by Cenveo Publisher Services
Contents
Acknowledgements vii
Introduction 1
1 Nature and evolution of the Constitution of the French
Fifth Republic: refl ections on semi-presidentialism 11
1 .1 A semi-presidential Constitution? 11
1.2 Theoretical framework 12
1.3 Original institutional arrangement and its evolutions 15
1.4 ‘Elasticity’ of the Constitution 24
1.5 Towards a postmodern (or second modern) system of government? 35
2 The greening of the French Republic:
the constitutionalisation of the environment 37
2.1 A new French bill of (environmental) rights 37
2.2 The interesting historical development of the Charter 39
2.3 From an expected impact to multiple impacts on the
French legal system 44
2.4 A ‘greener’ constitutional future 53
Appendix: Article 2 of the Constitutional amendment incorporating
the Charter for the Environment into the French Constitution 54
3 Human rights (in practice) and the French Republic:
the example of exclusion 56
3.1 Preliminary remarks on exclusion 57
3.2 Human rights in action 61
3.3 Conclusion 70
vi Contents
4 The French Republic and its supranational offspring:
the love–hate relationship between France and
European law 72
4.1 Introduction 72
4.2 Position of European law in relation to the French Constitution 75
4.3 Position of EC/EU law in relation to French statute law 79
4.4 Recent developments 82
4.5 Conclusion 84
5 Principle of indivisibility of the French Republic
and the people’s right to self-determination:
the ‘New Caledonia test’ 87
5.1 Introduction 87
5.2 General context 88
5.3 Administration of New Caledonia before the statute of 1999 90
5.4 Administration of New Caledonia under the statut e of 1999 94
5.5 Is New Caledonia closer than ever to independence? 100
5.6 Conclusion 106
6 The French Republic, its language and the paradigm
of unity 108
6.1 Introduction 108
6.2 Monolinguism as an aid to the construction of France and the Republic:
the myth of one language unifying internal minorities 113
6.3 From the affi rmation of monolinguism to the recognition of pluri-linguism:
the reality of pluri-linguistic (internal and external) minorities 118
6.4 Conclusion 127
Conclusion 129
Notes 133
References 175
Index 190
Acknowledgements
This work would never have been possible without the intellectual push of
my dear friend Jacques Basso, Emeritus Professor at my alma mater the
Faculté de droit, Université de Nice Sophia Antipolis, also former professor
at the Institut d’Études Politiques of Paris.
I would like to express my gratitude to my colleagues at the School of Law
of the University of Essex and particularly Richard Cornes, Maurice Sunkin,
Brigid Hadfi eld and David Ong, but also Audrey Guinchard and Peter
Luther. I am also indebted to Pierre Brunet and Pascal Richard and to my
former assistants for their help, suggestions and encouragements. I wish to
extend my thanks to Professor Leyland of London Metropolitan University
and Professor Samuel of the University of Kent for reviewing this thesis.
I fi nally wish to give my special thanks to my daughters Giulia-Clara and
Sadb for letting me work hours on this manuscript instead of spending time
playing with them. I have also a thought for my parents, grandparents and
great-grandparents and Cliona, and my dear friend Jean-Michel Urbani for
‘sending me away’ from my country years ago.
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Introduction
FRANCE, MERE DES ARTS, DES ARMES ET DES LOIS,
TU M’AS NOURRI LONGTEMPS DU LAIT DE TA MAMELLE:
ORES, COMME UN AGNEAU QUI SA NOURRICE APPELLE,
JE REMPLIS DE TON NOM LES ANTRES ET LES BOIS.
J. Du Bellay, L es Regrets , XI
In 2008, France celebrated the fi ftieth anniversary of the promulgation of the
Constitution of the Fifth Republic.1 It was also the year of the largest modi-
fi cation to the Constitution to date. On 12 July 2007, then President Nicolas
Sarkozy announced what he called ‘the need for changes’; 2 the key term he
used in this announcement was ‘modernisation’. The year 2008 was therefore
an ambivalent time: a time for celebrating one of the longest-lasting French
Constitutions (only the Constitution of the Monarchy 3 and the Constitution
of the Third Republic 4 survived more than fi fty years) and a time in which it was
more widely recognised that this established Constitution needed updating.
Whether or not one agreed with President Sarkozy’s desire to ‘modernise’ the
institutions, and whether there was in fact a real need for modernisation of
the Constitution itself, it is clear that 2008 witnessed a key moment in
French constitutional history. However, the changing dynamics of the
Constitution of the Fifth Republic have been neither the result of recent
developments nor entirely the result of the 2008 constitutional act.5 For a
while now, the social, economic, environmental and historical contexts have
infl uenced the Constitution to the extent that they have penetrated not only
the text itself but also its spirit – the idea of ‘the Republic’ as it has evolved
in relation to philosophy, which has made it what it means today.
First and foremost, the Republic may be linked to Plato and to the politics
of Aristotle; this early philosophy sought to establish the best form of govern-
ment. The two philosophers started their enquiries with an attempt to
describe both pure and degenerate forms of government: the monarchy and
tyranny, the aristocracy and the oligarchy, the Republic and democracy. Plato
was seeking Justice,6 which for him could only be found in what would be
‘the good State’, while Aristotle arrived at a defi nition of the ‘ideal city’, a