Contenu du sommaire : La Loi

While there is no doubt that today's Parliament no longer is the sovereign institution it used to be, the fiction of the general will is still useful to French constitutional law. It is now used to justify the supremacy of the constitution against which any piece of legislation has to be checked. So much so that judges sometimes abstain from controlling a legislative measure because of its conformity to the constitution. This paradoxical situation also tends to undermine the classical doctrine of representation.

Given the inflation of legislative acts, the French passion for the law is going back to the Napoleonic model. The normative function of the law, but also its capacity to translate a particular policy or to express social needs, are confronted to the precepts of Portalis, who watches over the legislative process like the statue of the Commander.

More and more often, acts of Parliament appear as inappropriate answers to real questions that do not, however, fall within their jurisdiction. As a consequence, the texts are not seriously thought out, they are more the produce of instinct than reason and, in the end, they damage the very authority of the law. Nevertheless, a number of legislative acts escape this criticism, thus indicating that there is still hope and that the adoption of a few simple rules and practices could remedy the problem and contribute to making again the laws well-thought-out acts.

The sheer volume of laws produced by the European institutions, the predominance of European over national law as established by both European and national jurisprudence, and the consequences of these trends for Parliament contribute to the perception of a European constraint on the law. However, one should keep in mind the fact that the integration of European law in national law is grounded in the Constitution and remember also how the articulation of these two legal systems has gradually led to institutional evolutions at both levels, as dictated by the requirements of democracy. In this context, an important stake is the way the articulation of the two systems is prepared and discussed at the national level.

The strict definition of the area of competency of the legislative branch, decided by the framers of the Fifth Republic in order to give the executive branch, which is in charge of regulations, an autonomous normative power, has in fact contributed to maintaining a privileged role for the law in the normative system. So much so that today the respect of regulatory competencies is being questioned. However, while the Constitutional Council has initiated a certain evolution of its jurisprudence in this regard, the question should no longer be discussed through the prism of the separation of power but rather through that of the quality of the law.

Among the various constitutional actors – who are the “manufacturers” of the law although their intervention is often triggered by other groups –, Parliament does not and has never exercised the legislative power alone. However, its role is much more central than what is often suggested. Instead of referring to Parliament, it would be more correct to mention the majority and the commissions of both Chambers, which are the interlocutors of the government. If the latter has a quasi monopoly of successful legislative initiative, it cannot succeed without the help of its associates.

In France, the number of new laws has doubled over the last fifteen years, whereas it had been declining previously. This inflation, as measured by the average size of the laws, is a natural phenomenon that expresses the growing complexity of the social relationships the laws monitor, and it is also occurring in Germany, Belgium and the United Kingdom. Declaratory provisions, attached reports, the special legal regime of the overseas territories, the codification and the narrowing of the distinction between the legislative and regulatory domains all contribute to this trend. Although they are less visible, the modification of the content of the laws, which now deal more with procedures than with basic issues, and a rather unruly use of the right of amendment are nevertheless the most important causes among the many leading to such a legislative inflation. Limiting this inflation would require the actors of the law-making process to become aware of the problem and reach an agreement as to the technical measures that could lead to a re-centering of the legislative process around the core issues.

The ordinances taken on the basis of article 38 have recently become more numerous. They have led to a modernization of various legislative measures. The law has thereby been strengthened. This normative technique raises, among other things, the question of the legislative role of Parliament. However, ordinances are not the adversaries of the law but its necessary complement.

The intelligibility of the law is a utopian but recurrent wish. It is now being required by the Constitutional Council and the European Court of Human Rights. But it is not easily attainable because it requires a humility that is rare among jurists.

The relationship between the judge and the law could be understood as being hierarchical for the classics, as one of competition for the neo-classics or as the substitution of one to the other for the moderns. In reality, this is not the case. In private law, this relationship is a delicate combination based on mutual use in the production of norms. The letter of the text, its meaning, its necessity offers the judge at once powers and limits and the balance between the two has probably changed less than is often suggested. The quality of the text is not immaterial.