SYMPOSIUM
IN HONOR OF THE LATE LOUIS FAVOREU:
FRANCE’S EXCEPTIONALISM IN CONSTITUTIONAL REVIEW
The interesting times of Louis Favoreu
Cheryl Saunders*
This editorial introduction to our symposium on the work of Louis Favoreu falls into
two sections, reflecting Favoreu’s own interests. The first traces the links between
Favoreu’s academic career and key moments in the establishment and development of
the institutions of the French Fifth Republic and, in particular, of the Conseil
Constitutionnel. It suggests that Favoreu was extraordinarily perceptive about the
potential of these events, to which he responded promptly. And the converse may also
be true: that Favoreu’s insights into the possibilities of the Constitution of 1958
enabled him, in some instances, to influence the course that developments took. The
second section explores some themes in comparative constitutional adjudication in
which Favoreu himself was interested and with which the contributions to the
symposium deal. These themes include the contrast between concentrated and diffuse
models of judicial review and the related issue of their respective advantages from the
standpoint of the legitimacy of review. Both this section and the articles to which it
acts as a guide show that the institutional differences are not as clear cut as may at
first appear. Both also suggest, however, that underlying conceptual differences help to
explain and sustain the distinction between the two models.
This symposium was inspired by the interests and ideas of Professor Louis
Favoreu, who exercised a dominant influence on French constitutional scholarship for over thirty years, until his death in 2004.
During Favoreu’s time, and with his active encouragement, a constitutional
revolution took place in France through two distinct but related developments.
First, the Conseil Constitutionnel evolved from a relatively inconspicuous
institution—designed to support the new, novel relationship between the legislative and executive branches under the Constitution of the Fifth French Republic—
into a body that, at least in some respects, resembles a constitutional court.
Second, under the auspices of the Conseil, the Constitution itself was transformed
from an instrument primarily concerned with the institutional structure of government to one that also provides substantial protection for fundamental rights.
The significance of these developments, including the characterization of
the Conseil Constitutionnel as a court, is still contested. On any view, however,
* Professor of law, University of Melbourne, Australia; symposium editor, I•CON; president, International
Association of Constitutional Law (IACL). I knew and worked with Louis Favoreu for twenty years under the
auspices of the IACL, from 1984–2004. Editing this symposium, however, has given me a new curiosity about
his influence on the institutional development of the French Fifth Republic. I am grateful to Otto Pfersmann for
suggesting this subject as suitable for a symposium and to both Otto and Michel Rosenfeld for their assistance
in teasing out themes that should be pursued. Email: [email protected]
© The Author 2007. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
I•CON, Volume 5, Number 1, 2007, pp. 1–16 doi:10.1093/icon/mol045
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the activities of the Conseil give rise to a range of practical and theoretical
questions, many of which are shared with constitutional courts exercising
centralized constitutional review along Kelsenian lines, and some of which are
shared by all courts with a constitutional review jurisdiction. The former
include the relationship between the constitutional court and other courts.
The latter include the legitimacy of any form of review that inhibits the political program of the current majority of elected representatives and the implications of this concern for the methodology of the reviewing body. The
developments in France thus lend themselves to the comparative study of constitutional review, whether within the genre of constitutional courts or between
constitutional courts and other courts in which constitutional and general
jurisdiction are mixed. These issues are the subjects of this symposium.
Favoreu himself perceived the possibilities of comparative constitutional law,
both to gain a better understanding of shared constitutional phenomena and to
shed new and different light on French constitutional law and practice. He was
an early and vigorous exponent of comparative constitutional law from the
early 1980s. In early 1981 a colloquium held at the University of Aix-Marseilles
III, of which he was by then president, dealt with the subject of “European
Constitutional Courts and Fundamental Rights”;1 other events and publications
on similar subjects followed.2 In 1987, the Association française des constitutionnalistes (French Association of Constitutionalists), of which Favoreu was
president, was host to the Second World Congress of the International Association
of Constitutional Law (IACL), devoted to the theme of “The New Constitutional
Law.” In 1985 and 1990 respectively, Favoreu was instrumental in the founding of the International Directory of Constitutional Justice and the Revue française
de droit constitutionnel (French Review of Constitutional Law).3 During the course
of the 1990s his interests in comparative law broadened and deepened, as AixMarseilles III became a magnet for scholars of constitutional law from all parts
of the world. He served on the Constitutional Court of Bosnia-Herzegovina from
1997–2002. He appeared for the last time on an international constitutional
stage in January 2004, shortly before his death, when he presided over a panel
of constitutional judges at the IACL’s Sixth World Congress in Santiago, Chile,
on the subject of “Comparative Constitutionalism in Practice.”
1
Louis Favoreu, Cours constitutionelles européennes et droits fondamentaux [European Constitutional
Courts and Fundamental Rights], in COLLOQUE D’AIX-EN-PROVENCE, 19–20 ET 21 FEVRIER 1981 [EUROPEAN
CONSTITUTIONAL COURT AND FUNDAMENTAL RIGHTS, SECOND AIX-EN-PROVENCE SYMPOSIUM, FEBRUARY 19–21,
1981] (Economica 1982); see also Burt Neuborne, Hommage à Louis Favoreu, 5 INT’L J. CONST. L.
(I•CON) 17, 27 n.32 (in this issue).
2
For a selection of Favoreu’s writings from the latter part of the twentieth century, see http://
www.conseil-constitutionnel.fr/dossier/quarante/favoreu.htm (last visited Oct. 3, 2006).
3
See Dominique Rousseau, The Conseil Constitutionnel Confronted with Comparative Law and the
Theory of Constitutional Justice (or Louis Favoreu’s Unternable Paradoxes), 5 INT’L J. CONST.
L. (I•CON) 28 (in this issue).
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The interesting times of Louis Favoreu
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Each of the four contributors to this symposium approaches Louis Favoreu’s
life and work from a different perspective. Burt Neuborne writes a personal
memoir, celebrating Favoreu’s contribution to French and comparative constitutional scholarship in a manner that interweaves comparisons between
the Conseil Constitutionnel and constitutional review in the United States.
Dominique Rousseau writes from inside the French academy and is critical of
Favoreu’s views—on both the nature and role of the Conseil Constitutionnel—
in a manner that sheds more light on the dynamics of the debate on these issues
within France than a more approving account could have done. Alec Stone
Sweet also is critical, as much of the question on which the editors had asked
him to write as of Louis Favoreu’s position on it. The question was whether
constitutional review is “law or politics.” Even in this oversimplified form, the
dichotomy draws attention to the significance of the difference between the
roles of the elected and judicial branches in the interpretation and application
of constitutions, which both Stone Sweet and Rousseau seek to define more precisely in their contributions. Lech Garlicki, the fourth contributor, is a judge of
the European Court of Human Rights and a former judge of the Constitutional
Tribunal of Poland. His subject is the intricate relationship between constitutional
and other courts in comparative European perspective, an issue that also was
of concern to Louis Favoreu in connection with the Conseil Constitutionnel.4
Collectively, the essays in this symposium make two different contributions
to the discipline of comparative constitutional law. First, they provide insight
into the French constitutional tradition, in theory and practice, with particular
reference to the Conseil Constitutionnel. Second, they offer a useful resource
on comparative constitutional adjudication. In what follows, I reflect briefly on
both aspects of the collection, by way of introduction. In addition, I use the first
section to trace the interaction of the career of Louis Favoreu with the evolution of constitutional review in the French Fifth Republic.
1. Constitutional review in the French Fifth Republic
Louis Favoreu lived in interesting constitutional times, to which he responded
perceptively and which he assisted in shaping.
He was born in Luc de Béarn in southwest France in 1936, toward what
would prove to be the end of the Third French Republic (1875–1940).5 His
childhood years thus were interrupted by World War II and the “terrible
4
See, e.g., Louis Favoreu, L’apport du Conseil constitutionnel au droit public [The Constitutional Council’s Contribution to Public Law], in REVUE POUVOIRS 17–26 (Presses Univ. de France 1980). See also
Louis Favoreu, Le Droit constitutionnel, droit de la constitution et constitution du droit [The Constitutional Right, the Right of the Constitution, and the Constitution of Right], 1 REVUE FRANCAISE DE DROIT
CONSTITUTIONNEL [R.F.D.C.] 71 (1990), cited in Alec Stone Sweet, The Politics of Constitutional Review
in France and Europe, 5 INT’L J. CONST. L. (I•CON) 67 (in this issue).
5
I am grateful to Didier Maus for his assistance with many details of Louis Favoreu’s life in the
section that follows.
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consequences” of what he subsequently described, on the occasion of the fortieth
anniversary of the Conseil Constitutionnel, as “[l]a désastreuse démission . . .
des parlements législateurs de l’Allemagne nazie et de l’Italie fasciste” (the
disastrous resignation ¼ of the legislatures of Nazi Germany and Fascist Italy).6
He spent his adolescence under the French Fourth Republic, which lasted from
1946 to 1957, during which time the long process of rebuilding the social,
political, and economic fabric of postwar France began and which was also
characterized, famously, by unruly legislative politics with resultant instability
of government.7 The period of his tertiary studies at the Fondation nationale
des sciences politiques (National Foundation of Political Sciences, also known
as Sciences Po) spanned the transition from the Fourth to the Fifth Republic
under the Constitution of 1958, following Charles de Gaulle’s dramatic return
to public life in June 1958 in the atmosphere of crisis induced by French defeats
in Viet Nam, Tunisia, and Morocco and the looming conflict in Algeria.8
The new Constitution retained a link with the old by proclaiming in its preamble the attachment of the French people “to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed
and complemented by the Preamble to the Constitution of 1946.” It provided
for a president with considerable authority, including the responsibility to “see
that the Constitution is observed,”9 but still, at this stage, indirectly elected
through an electoral college. It retained a parliamentary system; in a notable
innovation, however, it sought to contain the legislature by identifying the
proper subjects of a loi requiring legislative enactment, leaving other matters to
be handled by règlement (regulation) within the executive branch.10
Complementing this arrangement, it created the Conseil Constitutionnel, to
which acts of parliament might be referred, before promulgation, for a ruling on
their “conformity with the Constitution” within a period of one month.11 The
6
Louis Favoreu, La place du Conseil constitutionnel dans la Constitution de 1958 [The Place of the Constitutional Council in the 1958 Constitution], http://www.conseil-constitutionnel.fr/dossier/
quarante/q18.htm (last visited Oct. 8, 2006). These consequences, he continued, to press the
point home: “[v]ont conduire après guerre à la généralisation d’une garantie jurisdictionnelle des
textes constitutionnels, faisant obligation, non seulement au pouvoir exécutif mais aussi au pouvoir législatif, de respecter les droits et libertés des individus” [after the war they will determine the
general application of a jurisdictional guarantee for the constitutional texts, obliging not only the
executive but also the legislature to respect the rights and liberties of individuals].
7
JOHN BELL, FRENCH CONSTITUTIONAL LAW 10–11 (Oxford Univ. Press 1992) (Bell notes that during this
twelve-year period, twenty-three governments were formed in France).
8
Id. at 12.
9
1958 CONST. art. 5.
10
Id. arts. 34, 37.
11
Id. art. 61. See generally 1958 CONST. Title VII (other functions conferred on the Conseil as well
included supervision of elections, review of parliamentary standing orders, and advice on the exercise of emergency power). See also BELL, supra note 7, at 28–31.
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The interesting times of Louis Favoreu
5
presidents of the Republic, of the National Assembly, and of the Senate each
appointed three of the nine members of the Conseil, each of whom held office
for nine-year terms, which were staggered so as to enable the membership to
be refreshed every three years.12 At this stage, matters could be referred to
the Conseil only by these officeholders or by the prime minister.13 A provision
of a loi declared unconstitutional by the Conseil could not be promulgated,
and the decision was final and binding on all public authorities and
courts.14
The French constitutional tradition was hostile to judicial review. Suspicion
of judges dated from the Revolution and shaped the French conception of
separation of powers. Review also was inconsistent with the status of a loi as
the expression of the general will.15 In the early decades of the twentieth century, there had been some discussion in France of the possibilities of judicial
review, United States style, apparently as an offshoot of the burgeoning interest in comparative law.16 Enthusiasm was dampened by the influential work
of Édouard Lambert in 1921, pointing to the impact of the U.S. Supreme
Court on social legislation during that period of its jurisprudence and castigating the notion of “le gouvernement des juges” (government of judges).17
Interest in judicial review may not have died immediately,18 but the supremacy of the role of the legislature was firmly in place at the beginning of the
1930s.19
It is clear that the Conseil Constitutionnel was not intended to be a particularly new departure.20 In some respects, it could be seen as an elaboration of
the Comité constitutionnel (Constitutional Committee) established by the constitution of 1946, a largely ineffective body that also had the power to examine
laws, before promulgation, for consistency with the institutional provisions of
12
1958 CONST. art. 56.
13
Id. art. 61.
14
Id. art. 62.
15
THE DECLARATION OF THE RIGHTS OF MAN AND THE CITIZEN art. 6, (Fr. 1789).
16
Louis Favoreu, Constitutional Review in Europe, in CONSTITUTIONALISM AND RIGHTS 38, 42 (Louis
Henkin & Albert J. Rosenthal eds., Columbia Univ. Press 1990) (Favoreu reported that the
“[c]ampaign . . . was initiated in 1902 by Dean Larnaude in the Societé de Législation Comparée”).
17
ÉDOUARD LAMBERT, LE GOUVERNEMENT DES JUGES ET LA LUTTE CONTRE LA LÉGISLATION SOCIALE AUX ÉTATS-UNIS
[THE GOVERNMENT OF JUDGES AND THE STRUGGLE AGAINST THE SOCIAL LEGISLATION OF THE UNITED STATES] (Giard
1921).
18
Favoreu, supra note 16, at 43: “[I]n December 1925 . . . the most renowned public law specialists—Professors Berthélémy, Duguit, Hauriou, Mestre, and Rolland—reached agreement . . . to
instigate the judges of the ordinary courts to ‘dare’ to follow the American example.”
19
RAYMOND CARRÉ DE MALBERG, LA LOI, EXPRESSION DE LA VOLONTÉ GÉNÉRALE [THE LAW AS EXPRESSION OF THE
GENERAL WILL] (Sirey 1930).
20
See Stone Sweet, supra note 4, at 68.
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the constitution.21 With the benefit of hindsight, however, one sees at least two
strands of experience on which the Council might have drawn in developing its
future role. Toward the end of the nineteenth century and in the early decades
of the twentieth, the Conseil d’État had acquired many of the characteristics of
an administrative court and had developed a corpus of administrative legal
doctrine,22 including a conception of “fundamental principles recognized by
the laws of the Republic,”23 the doctrine of separation of powers notwithstanding. Equally significantly, under the influence of Hans Kelsen, the new Austrian
constitution of 1920 had laid the foundations for a different approach to judicial review, under the aegis of a specialist constitutional court, the members of
which at that time were nominated by the two chambers of the Austrian legislature.24 The system of centralized judicial review took root in Austria over the
decade of the 1920s.25 The conception was introduced into France in 1928 by
the early work of Charles Eisenmann.26 It was reflected in the design of the
constitutional courts established in Germany and Italy after the Second World
War and eventually became, as Lech Garlicki observes in this volume, “one of
the most typical features of Continental constitutionalism.”27
Four years after the creation of the Conseil, in 1962, Louis Favoreu completed his doctoral thesis on Du déni de justice en droit public français (On the
Denial of Justice in French Public Law).28 He was agrégé (admitted) in 1966 and,
in the following year, published the article that Burt Neuborne describes as
having “cemented his academic reputation”: “Le Conseil constitutionnel, régulateur de l’activité normative des pouvoirs Publics” (The Constitutional
Council, Regulator of the Normative Activities of Public Authorities).29 The
21
BELL, supra note 7, at 22.
22
Stone Sweet, supra note 4, at 68.
23
Neuborne, supra note 1, at 24 (for the significance of the Conseil d’État in this respect for the
subsequent evolution of the Conseil Constitutionnel).
24
Theo Ohlinger, The Genesis of the Austrian Model of Constitutional Review of Legislation, 16 RATIO
JURIS 206 (2003).
25
Id. at 209 (Ohlinger notes that between 1921 and 1932 the Court annulled three federal and
nine provincial statutes on constitutional grounds).
26
CHARLES EISENMANN, LA JUSTICE CONSTITUTIONELLE ET LA HAUTE COUR CONSTITUTIONELLE D’AUTRICHE [CONSTITUHIGH CONSTITUTIONAL COURT OF AUSTRIA] (Economica 1986) (1928) (The 1986
edition includes a foreword by Georges Vedel and a postscript by Louis Favoreu).
TIONAL JUSTICE AND THE
27
See Lech Garlicki, Constitutional Courts versus Supreme Courts, 5 INT’L J. CONST. L. (I•CON) 44 (in
this issue).
28
Louis Favoreu, Du déni de justice en droit public francais [On the Denial of Justice in French Public
Law] (Librairie générale de droit et jurisprudence 1964), cited in Neuborne, supra note 1, at 18.
In 1962, the Constitution was amended to provide for the direct election of the president.
29
Neuborne points to a decision of 1959 as “the first exercise of judicial review in modern
French history.” Id. at 20 n.10.
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The interesting times of Louis Favoreu
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Conseil, by this stage, had dealt with a small number of references,30 but all of
an institutional kind. Stone Sweet observes that “mainstream legal scholarship” continued to dismiss it as a political body, “unworthy of respect or sustained attention.”31
Favoreu spent the next few years in La Réunion, a French territory in the
Indian Ocean that became an overseas department of France after 1946.32 He
appears to have been there when the neighboring island of Mauritius obtained
independence from the United Kingdom in 1968, and he became familiar with
its new Constitution.33 Reflecting the country’s colonial past, the legal system
of Mauritius includes a blend of French private law and English public law.34 Its
Constitution provided for parliamentary government along broadly British
lines. But the Constitution also provided for the protection of fundamental
rights in a form that was modeled on the European Convention of Human
Rights, which had applied to Mauritius since 1953, when the United Kingdom
had acceded to the convention, and which would no longer apply directly after
independence. The Constitution was supreme law and judicial review was
exercised by the Supreme Court. The Supreme Court was a court of general
jurisdiction, in common law style, but its constitutional jurisdiction was exclusive.35 Twenty-five years later, having returned to Mauritius to participate in a
conference on fundamental rights, Favoreu observed that, while the United
States and Germany remained the principal models for constitutional review,
it was possible to avoid exclusive reliance on either, as the example of Mauritius
demonstrated. “In effect,” he argued, “Mauritius has found a formula that, in
an original way, achieves an amalgam of both conceptions. . .”36
By the time Favoreu returned in 1972 to mainland France, where he became
dean of the Faculty of Law at Aix-Marseilles III, the metamorphosis of the
Conseil Constitutionnel was underway. In 1970, in a decision on The Budgetary
30
Id. at 18 n.6. BELL, supra note 7, at 33 (Bell identifies nine references to the Conseil under article
61(2) between 1959 and 1974).
31
Stone Sweet, supra note 4, at 69.
32
1958 CONST. arts. 72(3), 73.
33
Writing in 1993, Favoreu noted that he came to Mauritius for the first time in 1968, when he
produced materials in French on the new Constitution and the Mauritian political system. Louis
Favoreu, in L’EFFECTIVITÉ DES DROITS FONDAMENTAUX DANS LES PAYS DE LA COMMUNAUTÉ FRANCOPHONE [THE
EFFECTIVENESS OF FUNDAMENTAL RIGHTS IN THE COUNTRIES OF THE FRANCOPHONE COMMUNITY] 47 (Agence
francophone pour l’enseignement supérieur et la recherche 1994).
34
Sir Victor Glover, L’universalité des droits fondamentaux et la diversité culturelle [The Universality of
Fundamental Rights and Cultural Diversity], in L’effectivité des droits fondamentaux, supra note 33, at
39, 41.
35
Id. at 43.
36
Favoreu, supra note 33, at 50.
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Provisions of the EC Treaties,37 the Conseil had accepted that the preamble to the
Constitution of 1958 had substantive legal effect.38 In 1971, in its landmark
decision on The Associations Law,39 the Conseil had declared the challenged law
to be incompatible with the Constitution and “notably . . . its preamble,” and
identified freedom of association as one of the “fundamental principles recognized by the laws of the republic.” Stone Sweet observes in this volume that the
“decisions that followed had the effect of incorporating a charter of rights into
the French Constitution.”40 In 1974, following another inconclusive debate
about the deliberate introduction of judicial review,41 the Constitution was
amended to extend the list of those authorized to refer a law to the Conseil
Constitutionnel to include sixty deputies or sixty senators,42 thus giving the
parliamentary opposition access to review. This proved to be a critical change.
In purely quantitative terms, as Neuborne observes, citing Favoreu, the
number of challenges dramatically increased, from 9 in the fifteen years of the
existence of the Council before access was widened to 328 in the twenty-five
years that followed.43 It also provided the foundation for a different understanding of the Council’s role, as one that offers a “counterweight” to majority
dominance of parliamentary decision making44 by providing a “veto point” at
which a minority can force consideration of at least some of its concerns45 or,
in Dominique Rousseau’s analysis, as a “third source of scrutiny, one that
subjects all potential lawmakers to the rules of discourse.”46
Louis Favoreu was engaged actively with these developments from the time
of his arrival at Aix. In 1975, with Loïc Philip, he published the first edition of
his Grandes décisions du Conseil constitutionnel (Landmark decisions of the
Constitutional Council), which was in its twelfth edition at the time of his death.
37
CC decision no. 70-39DC, June 19, 1970.
38
BELL, supra note 7, at 66.
39
CC decision no. 71-44DC, July 16, 1971.
40
Stone Sweet, supra note 4, at 68. Stone Sweet describes the actions of the Conseil as a “juridical
coup d’état.” Id. at 88.
41
Neuborne, supra note 1, at 23 (the source and nature of the proposal and the reasons for its defeat are explained).
42
1958 CONST. art. 61.
43
Neuborne, supra note 1, at 21.
44
Stone Sweet, supra note 4, at 84 (citing Louis Favoreu, LA POLITIQUE SAISIE PAR LE DROIT [POLITICS
CAPTURED BY THE LAW] (Economica 1988) and Louis Favoreu, La Légitimité du juge constitutionnel
[The Legitimacy of the Constitutional Judge], 2 REVUE INTERNATIONALE DE DROIT COMPARÉ 557 (1994)).
45
Stone Sweet, supra note 4, at 86. Approximately one-third of all ordinary legislation is referred
to the Council by the opposition, enjoying success of some kind in 50 percent of the cases. See id.
at 79.
46
Rousseau, supra note 3, at 43.
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He was a prolific writer, commenting on (and in some cases anticipating) key
decisions of the Conseil Constitutionnel.47 Throughout the 1980s he conceptualized and explained the role of the Conseil in a way that was designed to secure
its legitimacy within the French tradition and, at the same time, with reference
to the emergent European tradition of judicial review. The Conseil was in effect
a court, applying constitutional norms that were legal in nature and generating a coherent jurisprudence; however, it was a court created and empowered
by the Constitution itself in a manner that respected the finality of a loi and the
European understanding of the separation of powers.48 The French Association
of Constitutionalists, the periodical constitutional publications, and a regular
program of conferences at Aix furthered the influence of this new understanding of French constitutional law throughout France. The center at Aix, in turn,
became a focus for comparative work on constitutional review, reinforcing
what became an increasingly dominant conception of constitutional justice in
France.
Not all of the contributors to this volume agree with Favoreu’s conception
of the Conseil Constitutionnel or with his understanding of the operation and
effect of constitutional courts, yet all agree that his was a remarkable achievement. With his assistance,49 the new constitutional law was consolidated in
France over the decade of the 1980s, despite criticism of the legitimacy of particular decisions and of the role of the Conseil overall.50 The decade of the
1990s was a time for further refinement of the doctrine; for consideration of
particular issues, including the relationship of the decisions of the Conseil
Constitutionnel with those of other French adjudicatory bodies;51 for reflection
on the relationship between the supranational law and decisions of the Conseil
Constitutionnel; and for elaboration of theories of constitutional justice, drawing on comparative constitutional law.
And the 1990s were peculiarly suited to this last purpose. With hindsight, it
is clear that the latter half of the twentieth century was a period that saw the
establishment and consolidation of the European approach to constitutional
review.52 Apart from the creation of the constitutional courts of Austria,
Germany, and Italy, to which reference has already been made, other relatively
early entrants onto the field were the constitutional courts of Spain and
47
Neuborne, supra note 1, at 21 (citing Favoreu’s work on delegation in 1974 and 1978, spanning
the Conseil’s decision on delegation in 1975).
48
Favoreu, supra note 16, at 55.
49
Both political sides, while in opposition, made use of the Conseil Constitutionnel after 1974,
further adding to its legitimacy, as Favoreu did not fail to point out. See Favoreu, supra note 6.
50
Rousseau, supra note 3, at 30. See also Stone Sweet, supra note 4, at 45.
51
Garlicki, supra note 27, at 61; See also Stone Sweet, supra note 4, at 69.
52
See generally Garlicki, supra note 27.
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Portugal in 1978 and 1982, respectively, following the end of the dictatorships in those countries. But the remarkable proliferation of constitutional
courts, which has made it meaningful to refer to a European approach, took
place at the end of the 1980s and in the early 1990s, in association with the
collapse of communism within Europe. During this short period, specialist constitutional courts or tribunals were established in Poland in 1986, Hungary in
1989, Russia in 1991, and Czechoslovakia, Bulgaria, and Romania in 1991–
1992, to name a few. Whether as consequence or coincidence, the transformation of other constitutional systems, at about the same time, also led to the
establishment of constitutional courts elsewhere in the world: for example, in
Colombia in 1991; Peru, 1993; South Africa, 1994; Bolivia, 1994; Ecuador,
1998; Bahrain, 2002; and Egypt, 2001. This unusual institutional growth
provided an even more extensive supply of material for constitutional
comparisons.
The European model is not monolithic, of course, a point that is taken up
again in the next part. Despite its variety, however, the contributors to this volume broadly agree that the French Conseil Constitutionnel is on its fringe, to
the extent that the Conseil is properly characterized as a court at all. Lech
Garlicki describes it as the “weakest version” of a constitutional court, by virtue
of its dependence on the voluntary compliance of other jurisdictions;53 Stone
Sweet observes that the Conseil “appears hardly to fit” the European model at
all, because of the restrictions on its review authority;54 Rousseau identifies
four characteristics of the Conseil that distinguish it from European courts, by
implication contesting its equation with them.55 The characteristics that he
notes for this purpose are the mechanism for appointment to the Conseil
Constitutionnel; the short period of one month within which the Conseil must
conduct a review; the limitation of the Conseil to abstract review, initiated by
politicians in some capacity; and the closed process of the Conseil.56 Rousseau
muses on Favoreu’s failure, in this context, and, given his knowledge of comparative law, to support changes to the constitution of the Conseil that would
have brought it closer to the form of judicial review that prevailed elsewhere.57
An explanation may be suggested by Neuborne.58 The restrictive institutional features of the Conseil, which have indisputable foundation in the
53
Id. at 61.
54
Stone Sweet, supra note 4, at 69.
55
Rousseau, supra note 3, at 30.
56
See generally Rousseau, supra note 3, at 31.
57
Rousseau notes, in particular, that concrete proposals to allow concrete review, at the instance
of citizens, were made by President Robert Badinter in 1990 and by the Vedel Commission on
Constitutional Revision (of which Favoreu was a member) in 1993. Id. at 32.
58
“. . . I believe that the Constitutional Council’s indisputable positivist patrimony enabled it to
adopt an extremely broad conception of its institutional role. . .” Neuborne, supra note 1, at 24.
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11
constitutional text, provide a kind of counterweight to the constitutional norms
on which the Conseil draws, which equally indisputably do not. To disturb this
balance through constitutional change in order to establish the Conseil’s formal credentials as a court might threaten the acceptance of its role, particularly in relation to fundamental rights—a risk it might be unnecessary to run if
the Conseil were able to develop de facto as a court, drawing support from
scholarly, political, and public opinion. Whatever his views on formal change
in this latter respect, at least, Louis Favoreu made a distinctive contribution.
2. Comparative constitutional adjudication
The contributions to this symposium deal with two aspects of constitutional
adjudication in particular, each of which was significant in the work of
Favoreu.
The first is the points of contrast between supreme courts and constitutional
courts. Burt Neuborne tackles this question by reference to the Supreme Court
of the United States and the Conseil Constitutionnel of France. Lech Garlicki
takes a different approach, examining in detail the relationship between leading European constitutional courts and other courts in their respective jurisdictions. This is an illuminating study in its own right, which also highlights
one particular point of difference between supreme courts, in systems of diffuse
review, and the specialist constitutional courts.
The second question, to which reference has already been made, is whether
the activity of constitutional review is correctly identified as legal or political.
This question is the subject of the contributions by Alec Stone Sweet and
Dominique Rousseau. Both refine the question,59 to isolate more precisely the
contrasts that Favoreu himself sought to draw in the context of France, between
the Constitution as a legal rather than a political instrument, and the Conseil
as a judicial rather than a political institution. In their own ways, for reasons
that are familiar in the debate on the implications of judicial review, both disagree that either dichotomy can properly be drawn, at least in absolute terms.
Stone Sweet does so by reference to the political impact of constitutional review.
Rousseau focuses on the interpretative function of the Conseil Constitutionnel,
finally developing a different understanding of its role, as a “third body that
subjects all potential lawmakers to the rules of discourse” and that, in this
sense, “represents a more complete form of democracy.”60
Several themes run through the contributions, of particular interest from
the perspective of comparative constitutional law.
59
Stone Sweet, supra note 4, at 70. See also Rousseau, supra note 3, at 31.
60
Rousseau, supra note 3, at 33.
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The first concerns the contrast between the two broad models of constitutional review that dominate the world of the early twenty-first century. Diffuse
review, typified by the system in the U.S., can be performed in principle by any
court—when applying the Constitution as one of the available sources of
law—in the context of resolving a justiciable dispute before it. The apex court
in the general court system may finally determine the meaning of a provision
through a process of appeal and the operation of the doctrine of precedent.
Centralized review, along lines usually credited to Hans Kelsen,61 confines constitutional review to a specialist court, established outside the judicial branch,
and creates avenues by which constitutional questions may be raised before
the constitutional court at the instance of representative institutions or of the
regular courts. In some cases at least, the review necessarily is “facial” rather
than “as applied.”62 The relationship between the authority of the constitutional and regular courts must be resolved, and resolution is complicated by
the fact that, typically, the former is a relative newcomer, superimposed on a
judicial system with an established status and familiar patterns of behavior. In
such a system, the composition of the Constitutional Court also needs to be
determined specifically. The Kelsenian solution may be considered the norm,
on which there are many variations: election of judges by the legislature, usually by a supermajority for a lengthy, fixed and nonrenewable term.63
It is tempting to equate diffuse review with a common law approach and
concentrated review with that of civil law, while acknowledging the significant exceptions, or perceived exceptions, the rule.64 Diffuse review suits the
dependence of the common law method on the elaboration of legal principles in
a factual setting, in what Michel Rosenfeld has described as an “open-ended
empirically grounded inductive process.”65 Moreover, despite the angst that
accompanies much common law scholarship on the subject, diffuse review is
broadly consistent with a common law approach to the separation of powers,
which accepts that cases involving the lawfulness of the actions of the state’s
61
Stone Sweet draws attention to the extent to which the function of a constitutional court
reviewing laws by reference to a constitution that protects fundamental rights departs from the
Kelsenian conception of a “negative legislator.” Stone Sweet, supra note 4, at 81. See also Ohlinger,
supra note 24.
62
Rousseau, supra note 3, at 33. For the distinction, see also Neuborne, supra note 1.
63
For a discussion of the rationale for this method of appointment, see Rousseau, supra note 3,
at 32.
64
South Africa, with its mixed legal system, in which public law is dominated by the process and
substance of the common law, has a specialist Constitutional Court. Some civil law states, of which
Argentina and Norway are examples, have diffuse review. But in some cases, of which Denmark is
an example, the appearance of diffuse review is deceptive, because little, if any, constitutional
review takes place at all.
65
Michel Rosenfeld, Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts, in EUROPEAN AND UNITED STATES CONSTITUTIONALISM 197, 199 (Cambridge Univ. Press 2005).
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institutions can be resolved by the ordinary courts. Albert Venn Dicey, indeed,
insisted that they must be so resolved, to comply with his understanding of the
requirements of the rule of law.66 The courts, in turn, are garbed with considerable independence, not least through the established practice of conferring on
judges tenure for life or until retirement, which assists them to withstand the
pressures inherent in resolving cases against the state.67
Elevation of a written constitution to the status of supreme law necessarily
makes a difference, by subjecting the legislator to a set of overriding norms,
interpreted and applied by an arbiter over which it has little control and by
expanding the function and thus the power of the courts. Two of the questions
indirectly prompted by this symposium are whether the degree of difference is
so great as to require a reconceptualization of the structure, composition, and
role of the judicial branch, and whether such a remedy might create more
problems than it cured. In the meantime, however, the system of diffuse review
in a common law system can be seen as a natural, if significant, extension of
the role of regular courts in conditions of constitutional supremacy.68 In the
still relatively unlikely event that the United Kingdom were to acquire such a
constitution, it would be likely to be accompanied by a system of diffuse
review.
Concentrated review, equally, fits both the methodology and the institutional traditions of civil legal systems. The “deductive and syllogistic”69
approach that typifies civil law reasoning lends itself more readily to facial
review. Specialist constitutional courts often parallel other distinct adjudicative institutions for handling review of executive action, themselves a response
to the perception of the role of courts under a different conception of the separation of powers. Different attitudes toward precedent, stemming from a different understanding of the function of the judge and a substantially different
career structure for the judges of regular courts, contribute further to Garlicki’s
conclusion that centralized review “corresponds better” to the legal system in
which it typically is found.70
Within each of these broad models, there is, inevitably, considerable variety. This is true of common law approaches to constitutional adjudication,
although the range is not explored in this collection. It is worth noting in passing, nevertheless, that one principal difference between constitutional review
66
ALBERT V. DICEY, THE LAW OF THE CONSTITUTION 107 (Macmillan, 8th ed. 1915).
67
The judges, in turn, typically are appointed at a relatively advanced stage in their legal career.
This may have the effect of enhancing their independence; it also limits the period for which they
serve as judges, and, depending on the method of appointment, it may provide a check and balance
in the hands of the elected branches of government.
68
Cheryl Saunders, It Seems . . . to be a Leading Case, in MARBURY V MADISON 1803-2003, A FRENCHAMERICAN DIALOGUE 97 (Elisabeth Zoller ed., Dalloz 2003).
69
Rosenfeld, supra note 65, at 200.
70
Garlicki, supra note 27, at 44.
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in the United States and that in certain parts of the British Commonwealth lies
in the various accommodations that have been developed in the latter. These
devices have been designed to strike a different balance between the courts and
the representatives of the majority in the legislature while retaining the essential characteristics of diffuse review.71
On the other hand, the variety within the general category of concentrated
review is examined in some detail, in the contributions to this symposium by
Stone Sweet and Garlicki, in order to explore the implications of particular
choices. One key variable that emerges in the context of the balance between
politics and law lies in the form judicial review takes. Most systems of concentrated review allow abstract review, at the instance of elected institutions;72
some allow concrete73 or incidental74 review, accepting that other courts may
refer constitutional questions to the specialist court; and some also allow constitutional complaints from individuals seeking relief from a constitutionally
suspect law.75 Each of these possibilities has a different dynamic, variously
altering the balance of power between the majority and the minority in the
legislature; diminishing the distinctiveness of the role of the constitutional
court vis-à-vis regular courts; and further enhancing the authority of the jurisprudence of the constitutional court throughout the rest of the judicial system.76 Other variables with institutional implications include the extent of the
court’s reliance on a revised interpretation rather than the invalidation of statutes;77 mandatory orders to legislatures to take action of particular kinds or
within a particular time frame;78 and the degree of penetration by the constitution into the law of private relations through doctrines that enable horizontal
application of some kind.79
71
These devices include the notwithstanding clause in section 33 of the Canadian Charter of
Rights and Freedoms; the preservation of parliamentary sovereignty in the Human Rights Act
1998 (UK), and similar instruments in New Zealand and some subnational units in Australia;
and the relative ease of constitutional amendment in South Africa. See generally Saunders, supra
note 68.
72
Italy is an exception. See Stone Sweet, supra note 4, at 86. France is distinguishable from other
European systems because, inter alia, it allows only abstract review. See id. at 69.
73
Id. at 80.
74
Garlicki, supra note 27, at 46.
75
Stone Sweet, supra note 4, at 80. See also Garlicki, supra note 27, at 46.
76
Garlicki, supra note 27, at 46.
77
Id. at 64.
78
Stone Sweet, supra note 4, at 87.
79
Id. at 80. See also Garlicki, supra note 27, at 57.
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15
A second broad theme may be drawn from these contributions that has
potential interest from the standpoint of comparative constitutional law. This
concerns the relevance of the distinction between diffuse and concentrated
review for the democratic legitimacy of constitutional review.
The issue is raised in several contexts. Burt Neuborne compares, favorably,
the clear foundation for the jurisdiction of the Conseil Constitutionnel in France
with the absence of express authority for judicial review in the United States.
In each case, he suggests, this feature of the constitution helps to explain the
interpretative method of the reviewing body: the willingness of the Conseil to
read rights norms into the constitutional preamble and the “restrictive theories of constitutional interpretation” employed in the United States.80 Even if
this explanation holds, it does not represent a general distinction between the
two models, if only because other examples of the model of diffuse review provide express authority for it of the kind that is lacking in the United States.81
A more general distinction might be thought to lie in the composition and
role of the reviewing body in a typical system of concentrated review. Thus
Larry Kramer has recently suggested that the “structural innovations” of concentrated review may relieve the “pressure” of constitutional supremacy by
reducing tensions between the constitutional court and the elected branches of
government.82 Features to which he draws attention in this context include
the appointment of judges for staggered terms by supermajorities in the legislature;83 the relative ease of constitutional amendment; and (citing Louis
Favoreu!) the separation of constitutional review from the determination of
other legal questions, thus recognizing that “the constitution is not just another
species of ordinary law.”
The contributions to this symposium throw light on this line of inquiry in
several ways. With the particular example of the French Conseil in mind,
Rousseau suggests that the pressure might be resolved in another fashion, by
considering review as part of a larger deliberative democratic process, under
conditions where the institutions are in balance, each contributing “its own
share to the formation of the general will.”84 In a different vein, Stone Sweet
and Garlicki point to the reality that at least one of the premises on which the
distinction between concentrated and diffuse review is based is more apparent
than real.85 As concentrated review has developed, it has proved increasingly
80
Neuborne, supra note 1, at 25.
81
See, e.g., Canadian Charter of Rights and Freedoms, § 24 (1982).
82
Larry D. Kramer, ‘The Interest of the Man’: James Madison, Popular Constitutionalism, and the
Theory of Deliberative Democracy 65–66 (Stanford Public Law, Working Paper No. 930135), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=930135 (last visited Oct. 14, 2006).
83
Rousseau, supra note 3, at 32 (on the significance of this method of appointment).
84
Id. at 32.
85
Stone Sweet, supra note 4, at 89. See also Garlicki, supra note 27, at 57.
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difficult to quarantine constitutional issues, although the extent to which the
distinction has eroded varies between states.86 The constitutionalization of
areas of ordinary law through the impact on them of constitutional norms,
and a preference for interpreting statutes so as to conform with constitutional
requirements rather than invalidating them outright ensures constitutional
courts deal with questions of ordinary law. It means, too, that regular courts
will take constitutional norms into account, with consequences for the relationship between the two types of courts that Garlicki explores in some detail.
Even so, the differences in the method of composing constitutional courts
and the courts that exercise diffuse review in common law systems remain and
may have some bearing on the acceptance of the legitimacy of review. Stone
Sweet shows, however, that the constitution of constitutional courts, procedurally, does not necessarily offer greater protection to autonomous decision
making by the elected branches. On the contrary, there are some elements of
the typical design processes of concentrated review that make the impact of
review greater rather than less in such systems. These include widespread reliance on the doctrine of proportionality;87 the use of positive as well as negative
techniques for review;88 and the availability of abstract review, with erga omnes
effect, at the instance of minority representatives.
In this respect, the symposium reinforces a familiar lesson about comparing
constitutional systems. At one level, superficial differences are obvious. On further inquiry they may be less marked, tempting speculation about the convergence of constitutional systems as yet another consequence of the phenomenon
of globalization, with its properties of instant communication and increasingly
sophisticated supranational and international arrangements. But points of
apparent convergence may be superficial, too. As the contributions that follow
show, the structure and operation of institutions in established constitutional
systems are underpinned by historical experiences, dominant theoretical perspectives, and habitual patterns of analysis, which assist in explaining not only
the answers that each system gives but also the questions that initially are
asked.
86
Garlicki, supra note 27, at 49.
87
Stone Sweet, supra note 4, at 74.
88
Id. at 82.