The Conseil Constitutionnel confronted英文文献.pdfVIP

SYMPOSIUM The Conseil Constitutionnel confronted with comparative law and the theory of constitutional justice (or Louis Favoreu’s untenable paradoxes) Dominique Rousseau* Louis Favoreu’s scholarship has been enormously infl uential in the modern understandings of the nature of France’s Conseil Constitutionnel. His prescriptive concept of the Conseil as a judicialized decision-making body independent of the political process represents the orthodoxy of contemporary French legal and political thought. However, many scholars in France consider his arguments and modes of analysis highly controversial, raising as many questions about the Conseil’s institutional makeup and philosophical purpose as they answer. This essay examines shortcomings and contradictions in Favoreu’s approach and urges revisions to his model of constitutional justice in light of the French experience. Politics captured by the law ( “ La politique saisie par le droit ” ). The Constitution has ceased to be merely an idea and has become a norm, that is, a legal rule [règle juridique ] subject to obligatory enforcement. We are witnessing a gradual constitutionalization of the legal disci- plines and a growing relativization of the distinction between public and private law. A constitutional court cannot be defi ned based on the notions and con- cepts of administrative law; the distinctive features of a constitutional court must be demonstrated based on the theory of constitutional justice as it can be established in comparative law. —Louis Favoreu * Professor, University of Montpellier I; member of l’Institut universitaire de France, dire