Comparative Law Spring 2002

Professor Susanna FischerCLASS 14

FRENCH CONSTITUTIONAL LAW

Feb. 11, 2002

Wrap Up: German Sources of Law

• In accordance with the concept of a Rechtstaat and the rule of law, Germany has a hierarchy of legal norms. Lower-ranked norms must comport with higher-ranked norms (eg. Land law can’t violate federal law; federal law can’t violate Constitutional law). You should be familiar with the hierarchy

• Case law is, in theory, not a valid source of law in Germany (except in a few exceptional cases such as appeals or constitutional court decisions ) but judicial decisions are increasingly important influences on the law

Wrap Up: German Sources of Law and Statutory Interpretation

• There are 4 methods of statutory interpretation in Germany (the Savigny’sche Quart). 2 are essentially objective (literal interpretation, systematic interpretation) and 2 more subjective (historical interpretation, finding the ratio legis (sense) of the statute)

NEW TOPIC: THE FRENCH CONSTITUTION

Fundamental Structural Principles of the French Republic• We discussed the fundamental structural

principles of the German constitution (Democracy, Republic, Constitutional State, Social State, Federal State)

• The foundational principles of the French constitution are set out in Art. 1 of the current (1958) French Constitution. The Rule of Law is another foundational principle, as is the idea of the French Nation.

Fundamental Structural Principles of the French Republic• Art. 1 of the 1958 French Constitution (“C. 1958”) states:

France is an indivisible, secular, democratic and social republic (see E & V p. 226)

• La République is the official designation of France. It is not a monarchy (like Germany). 1958 Constitution states in Art. 58 that republican form of government cannot be changed (see GG Art. 79, 20).

• The Republican Tradition dates from the Revolution (despite some periods of empire, monarchy, unstable governments, and no constitution). Official motto of the Republic is liberté, égalité, fraternité (C. 1958 Art. 2)

Indivisibility

• A Jacobite idea: strongly centralized state. Idea developed in its modern form during the French Revolution and was implemented by Napoléon.

Indivisibility: Compromises• Compromise: existence of territorial collectives

(e.g. départements), and overseas territories (like French Polynesia) or departments (like Martinique)

• Compromise: granting of independence to colonial possessions (like Algeria)

• Growing trend (since 1980s) to transfer power from central govt to local representatives

Secular• French Revolution attempted to secularize the French state.

1792-3: De-christianization policy: All monasteries and convents closed. Religious vows declared void. Place names and calendar changed (10 days in a week, no Sunday or Christian festivals). 1792: Introduction of new religion: Cult of the Supreme Being. 1794: law enacted that (temporarily) ends state payment for church services or clergy, but guarantees freedom of religion and assembly.

• 1801: Concordat of 1801 between Vatican and Napoleon.• 1905: Law enacted that separates Church and State – no

state funding of religion (except in Alsace-Lorraine), state education secularized.

Compare Separation of Church and State in Germany and France

• Although Germany formally has a separation of church and state and has no state religion, religion is an important power in Germany. German state supports religion, e.g. government collects taxes on behalf of Christian churches and the constitution permits religious instruction in state schools (in practice, mostly Christian).

• In contrast, laicism is more deeply rooted in France. No religious education in French state schools. Religion is consider to be a matter of individual conviction.

Susanna Fischer

Susanna Fischer

Funding of Religious Schools?• Should écoles libres (usually Catholic schools) should be

publicly funded? Some disagreement on this issue over the years

• 1959 compromise law provided state funding but also more state control over these schools

• Germany: private schools can be publicly funded if they administer state exams

• In contrast – in US: Establishment Clause more seriously limits public funding for religious schools – virtually no direct support and limited indirect support like transportation etc.. Voucher system has been proposed. Much debate over constitutionality of vouchers.