Constitutional Law

Right of the Constitution sanctioned by a Judge.
Comprehensive study of the legal rules interesting the Institution S, the system of standard, and the Basic rights.
Study of the systems of Standard S and of the relationship between standards.

Juridicisation of political science

At the beginning, although the lesson of constitutional law and Political science was distinguished, the constitutional law rested on the same methods of analysis and preserved the same object overall as that of political science: it was a question of analyzing the behavior of the political actors, to study the operation of the Institution S with an aim of including/understanding how “is acquired, is transmitted and exerts the political power” (Georges Burdeau).

More recently, the constitutional law was considered either like the study of the political facts, but rather as the analysis of legal standards, guaranteed by judges. This evolution is due to several factors:

the Constitution S seemed a rampart against arbitrary political power.
Within the political power, it is the Legislative power which is bound by the respect of the Constitution.

Consequently, " méthodes" of analysis evolved/moved.

In France, one left sociological methods little by little to turn to methods which one meets in Civil law: one speaks then about juridicisation. The “object” of the discipline also evolved/moved: it became the study of the systems of standards and the relationship between standards. The French constitution was thus placed at the top of the Pyramide of the standards, above the Bloc of conventionnality (international treaties, European directives, and organic laws). This subject makes nevertheless debate, in particular within the framework of the reflections on the European Constitutional treaty.

With the the United States and in the Anglo-Saxon world, the positive Droit is developed less, and the culture of the standard is developed. The tendency being studied of the relationship between standards is less clear: the Anglo-Saxon culture privileges the system of soft Droit (in [[: in: software law software law]]), which facilitates the clearing of undergrowth of the complex subjects by the citizens, and leads the political power gradually to set up a coherent system of laws which fits in the constitutional device, which is amended if necessary. Thus it is approach of the environmental phenomena in the Anglo-Saxon world, with the definition of a green Charte (in [[: in: green charter green charter]]) in Australia in 2001, without constitutional value, whereas France included a charter of the environment in the preamble to the Constitution of October 4th, 1958 in 2005.

The practice of the constitutional law in France appears thus theoretically more rigorous. She suffers nevertheless from opacity due to the complexity of the laws, and the intrication of the legislative codes, which weigh down the relationship between the bodies of the State, and are not without posing problems of Legal security.

In Europe, the question of the relationship between the European Right (as well as the international treaties) and the constitutions (level 1), when they exist, within the framework of the Hiérarchie of the standards, is the subject of studies (see bibliography).

The modern Constitutional Law also includes the study of the guarantee of the basic rights.

Constitutionnalism

Constitutionnalisme redirects here.

In Europe, between the beginning of the 17th century and the end of the 19th century, one believes in the supremacy of the law (Légicentrisme). It should however be noted that the Abbé Sieyès, during the discussion on the constitution of year III in 1795, with its project of jury constitutionnaire which was not finally adopted, thought however that it was necessary to set up parapets to control the application of the laws.

With the the United States, the American constitution exists since 1787, it was enriched by many amendments to take account of the evolution of the Droit.

The 20th century, and particularly its second half, is marked by the rise of the constitutionnalism.

Reasons of the constitutionnalism

One realized during the 20th century that the law could badly make: dictatorial modes (the mode Nazi, the Mode of Vichy, the Chilean mode in the Years 1970) could have a bearing legislative system reached with the dignity of the Man. The idea was essential that the law could not be - only - the ultimate barrier with the capacity: one thus made Constitution this last rampart. The example more striking is that of the German Fundamental law of 1949, which even envisages that certain basic rights are not likely to be modified, even by the Peuple.

Expression of the constitutionnalism

The constitutionnalism is a Doctrine founded on the idea of the supremacy of the Constitution on the others Norme S legal main roads.

It is an idea which is not only legal but which expresses also a value judgment: belief in the fact that the Constitution represents the best guaranteed against the arbitrary one of the political power. It appears in particular in the declaration of the human rights and the citizen of 1789, and the objectives of the constituent Assembly. The written character of the Constitution will ensure a form of stability to him , which will cause a first level of protection against the Risque S of arbitrary of the Loi, the profit of the Citoyen S.

These doctrines had a very strong influence in public Droit French. She knew one second birth at the beginning of the Années 1970 when the Constitutional council started to refer to the Constitution in order to protect the rights and individual freedoms.

Starting from a decision of July 16th, 1971, per which the Constitutional council protected the right of association, the Constitution seemed an actually guaranteed legal standard, being essential including on the Legislative power.

It then seemed a true legal standard, same manner as in the United States, decision MARBURY vs MADISON of 1803 had been also innovative, since it had imposed on the Executive power, for the first time, the respect of the Constitution of 1787.

Sphere of activity of the constitutional law

The constitutional law currently has several sphere of activities:

To translate the basic rights into declarations or charters, which appear like basic principles of the institutions,
Décrire the perimeter of the Loi S, payments,
Définir responsibilities for the bodies of the capacity in the work of the institutions: Executive power, Legislative power, and judicial Power.

One of the topics of the constitutional law currently in reflection is that of the Legal security (report/ratio of the Council of State of 2006). This principle appears explicitly in the texts of the European institutions (Strasbourg, Luxembourg).

In France, the natural Right correspondent is that of the Sûreté, but its translation in terms of Legal security is not explicitly mentioned in the Constitution of October 4th, 1958. In the normal functioning of the French institutions, this translation must be done by a Organic law.

Quotations

“ the law does not have all the rights. ”, Mireille Delmas-Marty

“ the ignorance and the contempt of the human rights led to barbarous acts which revolt the conscience of humanity… ”, Rene Cassin, Extracted the Universal declaration of the Human rights

See too

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