Policymaking and Public Law in France: Public Participation, Agency Independence, and Impact Assessment
Yale Law School
Université Paris Est
February 14, 2013
Columbia Journal of European Law, 2013, Forthcoming
Yale Law & Economics Research Paper No. 463
Policymaking in government ministries and agencies is the inevitable result of the complex and technical nature of modern policy issues. This reality creates a puzzle: How can policymaking inside the executive remain true to democratic values? We confront this question through an analysis of modern pressures on French public law. We ask if the US approach, which we call “rulemaking accountability,” has any lessons for French reformers. The primary aim of this type of accountability is facilitating public input to assure that democratic values extend into administrative policymaking.
In France, the public administration traditionally has been understood, not as a threat to democracy, but as an instrument for achieving republican ideals. Statutes set out broad frameworks, but their concrete implementation should be left to impartial, expert bureaucrats. A specialized judiciary, also composed of civil servants, oversees the administration. Three developments are now putting pressure on French public law, involving process, institutions, and substance. These call for enhanced public participation, the creation of independent agencies, and the use of new forms of technocratic policy analysis. Can these new trends produce a stronger, more democratically legitimate state, or are they in such deep tension that France will either return to old practices or experience a drastic realignment of public power and public law? The French system has begun to respond to these new pressures, but they are still frequently resisted, and reforms have not coalesced around a consensus view. However, recent decisions of the French high courts suggest a move toward more oversight of the democratic legitimacy of administrative processes. Furthermore, efforts occurring inside and outside the government are encouraging more open policymaking and the more systematic study of government programs. Future developments are by no means clear, but the elements are in place for reforms that enhance public accountability and support systematic analysis of policy impacts.
Number of Pages in PDF File: 84Accepted Paper Series
Date posted: February 14, 2013
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