Preamble (right)

preamble

History

The code given to Locriens by Zaïencus, philosopher of VIIe century before our era, was preceded by a moral preamble that Diodore and Stobée preserved us.

The Salic law of Dagobert reached us in several manuscripts with a preamble: it is a praise of the free franque nation, which ends in an invocation with Christ.

The Constitution that the the United States were given while being declared independent, contains a preamble which was imitated in the French Constitutions of 1791 and 1793 by famous the Déclaration of the human rights and the citizen . The Charter of 1814 , the Constitution of 1848 , have also their preambles.

Legal effect

Although the preamble to a legal text can seem to be only words of introduction of little importance, it can have repercussions not envisaged by its authors. For example, it is in base on the preamble to the French Constitution, which mentions the attachment of the French Republic with the principles stated in the Déclaration of the Human rights and the citizen of 1789 that the Constitutional council declared unconstitutional certain laws (the first being the Décision n° 71-44 cd.).

In the same way, with the Canada, the preamble to the constitutional Loi of 1867 was quoted by the Supreme court of Canada in the Renvoi relating to the provincial judges to increase the guarantees of legal independence. In India, the Supreme court frequently declared unconstitutional the amendments which violate the “ basic structure ” of the constitution, especially its preamble. Moreover, with the the United States of America, certain judges “ constructionistes ” affirmed that article 1 of the American constitution makes it possible the federal government of the United States to be freely acted in any field mentioned with the preamble to the constitution, a point of view called in question by some their colleagues “ originalistes ”.

For this reason, the drafting of the preamble to the project of European constitution, in 2004, raised much controversy because of the possibility of inclusion of references to the Christian religious heritage of the Europe; some feared that such a sentence can be interpreted in the future legal point of view. In the same way, in Australia in 1999, a referendum on the adoption of a new preamble was accompanied by a promise that this one could never be applied by the courts, some fearing that it can be interpreted in a doubtful way by certain judges.

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