Constitutionally Conforming Interpretation in France

Forthcoming in M. Klatt ed., Constitutionally Conforming Interpretation: Volume I (Hart Publishing, 2022)

19 Pages Posted: 6 Apr 2022

Date Written: March 18, 2022

Abstract

This chapter deals with constitutionally conforming interpretation (CCI) in the French context. It traces the main issues surrounding CCI back to the most problematic features of French constitutionalism ever since the French Revolution. France has a complicated history with judicial review. The Revolutionaries sought to prevent judges from reviewing the constitutionality of statutory law, as statutes were deemed to be ‘the expression of the general will’. This explains why France had to wait until 1958 for something like a constitutional court to be instituted: the Constitutional Council was born with the 1958 Constitution. However, at the time the Constitutional council, for all its merits, fell (and, some would say, still falls) short of being a genuine constitutional court in the German or Italian mould.

This complicated history explains the reasons behind the use of constitutionally conforming interpretation in France, which has always been framed in terms of legitimacy. Interestingly, far from being hailed as a way to exercise judicial restraint on the part of the Constitutional Council, conforming interpretation is often decried as an illegitimate way to re-write what the legislature intended.

In Part I, I give a brief overview of the French system of constitutional adjudication and of the interpretative division of labour between the Constitutional council and the two ordinary apex courts, the Council of State and the Court of Cassation.

In Part II, I focus mainly on “interpretative reservations“, which are the main tool used by the Constitutional Council in order to interpret statutes (as well as the other laws it reviews) in a constitutionally conforming way. I describe the structure and the formalism of such reservations, their authority on ordinary courts, and the various types of reservations that can be found in the case law of the Constitutional Council. I also give an overview of the debates on the legitimacy of CCI in France.

In Part III, I delve into some recent issues which the introduction of a new a posteriori procedure of constitutional review in 2008 has raised with regard to the effects and the efficacy of interpretative reservations.

The chapter concludes with some remarks linking the debates surrounding CCI with the French distrust of constitutional adjudication.

Keywords: constitutionally conforming interpretation, interpretative reservations, constitutional adjudication, judicial review

JEL Classification: K30, K41

Suggested Citation

Carpentier, Mathieu, Constitutionally Conforming Interpretation in France (March 18, 2022). Forthcoming in M. Klatt ed., Constitutionally Conforming Interpretation: Volume I (Hart Publishing, 2022), Available at SSRN: https://ssrn.com/abstract=4060978

Mathieu Carpentier (Contact Author)

Universite de Toulouse 1 Capitole ( email )

2 Rue du Doyen-Gabriel-Marty
Toulouse, 31042
France

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