Vol. 2 No. 12 (December, 1992) pp. 191-193

THE BIRTH OF JUDICIAL POLITICS IN FRANCE: THE CONSTITUTIONAL COUNCIL IN COMPARATIVE PERSPECTIVE by Alec Stone. New York: Oxford University Press, 1992. Pp. 312pp. Cloth $45.

Reviewed by Doris Marie Provine, Syracuse University.

Judicial review does not exist in the French court system. Nor do the French accept the idea of courts as a co-equal branch of government. No wonder de Tocqueville was surprised to find that Americans turn every political question into a legal question. France valorizes the concept of the general will, institutionalized as legislative supremacy. The French ARE committed to constitu- tionalism, however, and this creates a certain tension in their politics. The institutional innovation that is the subject of Alec Stone's book, the French Constitutional Council, is an effort to respond to the problem of unchecked parliamentary power in a constitutional system lacking a tradition of judicial review.

The Council was a product of the political upheaval associated with the birth of the Fifth Republic in 1958. The function of the Council, according to its founders, was to keep Parliament within the bounds established by the new constitution. In the words of Michel Debr: "The creation of the Constitutional Council manifests the will to subordinate LA LOI, that is, the decision of the parliament, to the superior rule (RfGL) laid down by the Constitution" [p. 47]. The Council has the power to approve, annul, or "amputate" legislation on constitutional grounds.

The Council does its work after legislation has been passed, but before it is implemented. So-called "organic" laws and standing orders go to the Council automatically, but ordinary legislation is reviewed only if certain procedures are followed. Originally this meant referral by the president, the prime minister, or the chief officers of either chamber. Parliament changed the rules in 1974 to allow 60 members from either chamber to send a proposed law to the Council for constitutional review.

This small change has profoundly altered the stakes of political conflict in France. The Council immediately became attractive to minority coalitions within Parliament, who discovered that they could block or delay new initiatives by taking constitu- tional challenges to the Council. The Council, which had received only nine referrals in its first fifteen years, received 66 in the 1974-81 period. The rate of referral continued to increase between 1981-87, to 136 in that six-year period. These challenges were often successful, particularly after 1981, the year the socialists became the governing majority. The Council meanwhile retained a more conservative majority. Not surprisingly, it found many constitutional defects in the legislation the socialists sought to adopt. Over half of the 92 laws it reviewed in this period were declared constitutionally defective. The Council softened its activism by avoiding wholesale rejection of socialist-backed laws, preferring "amputation" of certain parts, accompanied by detailed directions for revision.

Frequent nay-saying helped make the Council a significant player in legislative politics. Parliamentary majorities began writing legislation to avoid a declaration of unconstitutionality and the deputies began to heed the Council's prescriptions for revision. Even legislative debates began to take on a legalistic tone, deputies engaging in what one deemed "judicial pointillism" to bring bills into line with constitutional standards emerging from previous Council decisions (p. 210). Stone appears to view these developments with a mixture of appreciation (for the extra care given in drafting) and regret (at the "pacification" of political debate).

Critics of the Council have charged that it creates a "gouv- ernement des juges." Stone sidesteps this criticism by arguing that the Council should be conceptualized, not as a court, but as a third legislative chamber. Its nine members tend to be professional politicians; these are not people trained for the judiciary. Even the power to appoint Council members smacks of political compromise: the president of the republic and of the two legislative chambers each select three.

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These members serve for one non-renewable nine-year term. Former presidents of the republic are entitled to lifetime membership.

The Council also operates completely independent of the court system. It has no administrative authority over the judicial system and hears no appeals from the lower courts. The Council responds to legislators and high executive officials rather than to ordinary litigants. It operates rapidly (within one month) on the paper record, hearing no arguments and elucidating principles in technical terms. A recent proposal to alter the system to allow cases brought by litigants seeking judicial review was defeated. Still, the Council's power to apply constitutional principle to annul legislation suggests certain parallels with judicial review as practiced in the United States. The Council has found it helpful, for example, to develop a constitutional jurisprudence in order to carry out its work. In France this involves determining what is and is not constitutional principle, a problem the Council has solved by steadily widening its constitutional purview. This process began in 1971 when the Council issued a MARBURY V. MADISON- style opinion declaring a law that had been sought by the executive to be unconstitutional. The Council found that the law, which withheld official recognition from certain organizations, to be in conflict with the preamble of the 1958 constitution, which declares France's attachment to the Rights of Man as set forth in the 1789 Declaration and the 1946 constitution. The Council sometimes justifies such potentially-explosive decisions with citations to its own prior cases, thus incorporating a principle of stare decisis in its jurisprudence. The Council's institutional practices thus help it grow in political power, a pattern evident also in the evolution of the American Supreme Court [Brigham, 1987].

French political scientists, Stone asserts, have taken little interest in the Council's growing authority as an arbiter of constitutional values. Legal academics have been more engaged in studying the Council, but hardly from a critical intellectual perspective. One can almost feel Stone's annoyance with the closed-mindedness of the French academic establishment on this subject. He describes an initial period in which legal academics reacted with hostility to the Council. Scholars regarded it as insufficiently independent from executive authority, judging it by standards one might applying to a constitutional court. This hostility had melted by the mid-1970's as decisions accumulated. The tiny constitutional-law community finally had a body of case material that it could use for constitutional theorizing. As Stone puts it "a true constitutional law was being born" (p. 98).

Presently, the scholarly legal community is solidly behind the Council, so much so that scholars refuse to discuss the politics of constitutional decision-making. Stone describes these academics as vehement formalists, ready to explain the work of the Council in terms lay people can understand, but ever-vigilant to protect it from critics (like Stone!) who claim it is a political institution. So committed are they to the nonpolitical view that they have rewritten history to disguise the Council's expansionist re-reading of its jurisdiction. The founders, for example, had never intended that the preamble to the 1958 constitution would have "valeur constitutionnel," but one would never guess this from scholarly writing on the subject of the Council's jurisdiction.

Amazingly enough, no French political scientist has waded into this void in critical analysis. Nor does there appear to be any interest in engaging students in constitutional debate concerning the Council's politics and perspective. Textbooks, including those designed to educate lawyers, often ignore the Council as a constitutional law-maker. Even in the popular press the Council enjoys an aura of neutrality, rationality and expertise that would be the envy of U.S. judges. The tendency toward reticence is strongest among those who follow the Council's jurisprudence most closely.

Stone finds danger in the commitment to treating the work of the Council as separate from politics. Its legitimacy, he argues, comes from its

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CONNECTION with politicians, not from a principle of separation more appropriate to a court of law: "Politics itself confers upon the Council a legitimacy as a POLITICAL body which may be far greater than that accorded JUDICIAL institutions elsewhere" (220).

The rise of the constitutional Council thus provides a backdrop for an equally engaging history of cultural difference in academe. Stone shows that scholars too are bound by culturally- specific frames of reference. To think otherwise is a conceit. Stone also shows, by example, the value of institutional analysis that sweeps broadly across the political landscape. This panorama provides the grounds for appreciating the significance of a new player in constitutional politics and for considering the viability of a system of abstract constitutional review as compared to other alternatives. These strengths clearly overshadow certain stylistic weaknesses in the book: a tendency toward repetition and over- reliance on italics to drive points home.

REFERENCES

John Brigham. 1987. THE CULT OF THE COURT. Philadelphia: Temple University Press.