The Disassociation of Hierarchies is Becoming Ever More Accepted

6 The great Kelsen suffered much indecision when it came to creating a hierarchy of the Constitution and the treaties. He even admitted that the two solutions both stood up as well as each other and he was very late in abandoning his indecision, doing so only after the war, for unabashedly political motivations. These, for him, carried an emotional weight that made an exception worthwhile. He eventually came to think that if one wished to avoid seeing a historical monstrosity like Nazism being reproduced, the State must be juridically limited and, therefore, international rule must prevail over the Constitution. However, as this idea was only conceived of at the cost of renouncing the need to objectively describe the juridical system as it actually is, we have to agree to understand what Kelsen initially meant and work with those aspects of this old lesson that are still indispensable. There are two simple statements to demonstrate this. On the one hand, international law can only consider itself as juridical if it is dedicated to being imperative and exacting. As a consequence, from the point of view of an international body or an international judge, it is quite simply not possible for the Constitution to prevail over the treaty. The primacy of the latter is a logically evident necessity. Therefore, it is not surprising to find that this has long since been asserted by the International Court of Justice [8] and by the European Community Court of Justice (now the Court of Justice of the European Union). [9] On the other hand, a domestic judge, due to being constitutionally appointed, cannot position him/herself outside of the model that brought him/her into being and which conferred his/her status. He/she is, if we might put it this way, ontologically prevented from judging the validity of the Constitution because it is the Constitution that has made a judge of him/her. It is also the case that, in fact, especially in law, so long as no express constitutional text has authorized it, a domestic Court cannot be known (or be felt) to have the capacity to allow a treaty to prevail over the Constitution. Here again it is not surprising that the French High Courts should have expressed this as the manner in which the law was set up. [10]

7 Two hierarchies coexist or, to be more precise, two different and contrary points of view exist on the respective hierarchical positions of the treaty and the Constitution. Whatever one does, the situation of difference that domestic and international judges find themselves in will always condition their perceptions, their behavior, and the manner in which they resolve the conflict of standards. There is nothing useful or possible that can be done about this.What has, perhaps, been changing recently, is that this state of the juridical world seems to be perceived a little more clearly and certainly with more acceptance than it was a few years ago. It may be that we are beginning to be done with certain naiveties or, better yet, that we are beginning to see a reduction in the level of ideological contamination of discourses in this field. Technical law specialists seem a little further behind when it comes to inspection and analysis of articles of faith—whether national or international. It is still to be hoped that this phenomenon will become firmly established and that politicians will have the good sense not to distance themselves too much from this change in perceptions.

Discord in Decisions is Becoming Ever More Accepted

8 Some ten years ago—and the writer of these lines does not exempt himself from the criticism he is about to pen—the idea that there might be discordant judgments regarding the same law was perceived as a serious anomaly, all the more so when the reference points were apparently essentially the same. It was seen as aberrant that a single law could be judged to conform to the constitutional principle of the right to a fair trial—for example—and to be contrary to its European counterpart.

9 However, the legal actors clearly now better understand that there can exist significant differences between constitutional and European standards, even if they carry the same name. As a consequence, it seems more bearable to them that the Constitutional Council and the European Court of Human Rights have a different understanding of the qualities of the same law.

10 The most noticeable sign of this development in mindset must be sought in the redaction of the decision of the Constitutional Council relating to the organic law completing clause 61–1 of the Constitution. The Constitutional Council writes therein:

11

“Considering, secondly, that by requiring examination to give priority to constitutional pleas over and above pleas pertaining to conformity to a legislative provision relating to France’s international commitments, the organic legislator meant to guarantee respect for the Constitution and to recall its place at the head of the domestic juridical system; that the sole effect of this priority is, in any event, to set out the system of examination of the pleas raised before the chosen jurisdiction; that it does not limit the competence of the latter, after having applied the provisions relating to the priority preliminary ruling on constitutionality, to ensure respect for and superiority concerning the laws of any treaties or accords legally ratified or approved and European Union standards; that it does not disregard either clause 55 of the Constitution or clause 88–1 of the same under the terms of which: ‘The Republic is a member of the European Union, which is made up of States that have freely chosen to communally exercise some of their skills by virtue of the treaty on the European Union and the treaty on the functioning of the European Union, arising from the treaty signed in Lisbon on December 13, 2007.’” [11]

12 To put it plainly, according to the Council’s own admission, nothing prevents a judicial or administrative judge from declaring a law that the Constitutional Council has declared to be in accordance with the Constitution, to be contrary to an international convention, up to and including cases where this difference in approach concerns standards that are a priori similar or appear identical.

13 It is understandable that the Constitutional Council should be in large part resolved to rule in this way for strategic reasons. It was necessary to show from the start that the priority given to constitutional review over conventional review did not have either the aim or the effect of preventing the application of international legislation. [12] However, the jurisdiction is of little importance. The fact is that, in our constitutional law, it is perfectly acceptable for an industrial tribunal in Oyonnax to dismiss as unconventional a law that has been declared in accordance with the Constitution.

14 Progress is not only to be found in the acceptance of such a possibility. Moreover, no progress would have been accomplished if it had only consisted in the injunction addressed to those within the legal system to resign themselves in the face of complete irrationality and if all that only served to uphold a rather rickety structure. The reality of things is more subtle and more satisfying. From the moment that several juridical bodies coexist, even though they may be inspired by comparable convictions, and these different jurisdictions have been entrusted with the care of interpreting these and developing genuine jurisprudences in regard to them, it is impossible for the closeness or similarity of standards to be synonymous with being identical. Between constitutional and European laws—even more so when interpreted in court—there are differences, nuances. This is enough to ensure that contrary decisions come to light from time to time.Should we be pleased about this? Certainly. The growing empire of the law is never satisfactory if it is not accompanied by additional lucidity. Lucidity supposes seeing and knowing that juridical truth is not of this world, that the texture of texts is open, that one cannot do without a “political moment” in the structuring of a legal decision, that jurisprudence is creative, and that it is impossible for there not to exist, here and there, differences in understanding between judges. Should the consequences of the relative disorder arising from this be feared? Perhaps not. Even if it carries with it a measure of instability, this long and protean exposure of the law to questioning should first be understood as a strength; the strength of a country that is sure enough of its juridical values to give itself the means to see those values always triumph; the strength also of a country that is wise enough to prefer challenges to operate through the regulated avenues of justice rather than in other, less civilized and, therefore, more dangerous ways. Considering this carefully, acceptance of an irreducible coefficient of legal fragility is nothing other than the price to be paid for building a society that lays claim to being progressively civilized through law.

The Trend towards Harmonization is Unremitting

16 The mechanism is very simple: A Court, aware that the decision it may come to risks falling short of the decision that another court may take, will prefer to develop its jurisprudence rather than expose itself to a retraction.

17 There are plenty of examples of this. We know that the Constitutional Council was, originally, far more tolerant in terms of legislative validation than the European Court of Human Rights. The Zielinski Pradal case caused the Constitutional Council to feel the discomfort of its position. [13] The Council had concluded that a validation act in a fiscal matter was in accordance with the Constitution, but the the acceptability of this law in the European Court was, to say the least, doubtful. A few months later, the European Court of Human Rights criticized France because this same law was an infringement of the right of citizens to a fair trial. The reaction to this was swift. The Constitutional Council altered its jurisprudence and adopted a system of criteria and conditions relating to validation that were comparable to those that the Strasbourg Court had caused to prevail.

18 Sometimes there is even greater foresight. A Court might not wait to have its decision revoked before correcting its jurisprudence. This is what the Council of State did in its renowned Bitouzet jurisprudence, relating to the principle of non-indemnification of urban planning easements. [14] This principle, set out in clause L. 160–5 of the urban planning code, was causing experts in European law to gnash their teeth, not so much because it made possible a non-indemnified violation of property rights as because it allowed it in conditions that were not well enough framed. The Council of State adopted a proactive strategy to respond to this challenge. The Council imposed a reading of the clause that profoundly transformed the interrelation of its parts and made it acceptable to the ECHR. Strategically speaking, this was very well played. This operation of interpretive rewriting of clause L. 160–5 meant there was no need to declare the law unconventional, to remake it, or to make an implicit criticism of the overly benevolent jurisprudence of the Council of State. There is no cause for complaint here.

19 From this it can be seen that, in the climate of significant interdependence characterizing the European procedural sphere, it is in everyone’s interest for nothing to be undertaken without first considering what other judges may be likely to do in the same regard. From this follows better information, an improvement in the conditions of juridical reflection, more open-mindedness, and, of course, the maintenance of a legitimate fear of being stigmatized for not offering sufficient protection. Conditions are now such that a major trend is taking root, the effect of which is, without any doubt, to harmonize the positions adopted by our five Supreme Courts regarding comparable problems.Once again, this is something we should be pleased about. Nothing is more in accordance with the ideal shared by French-style constitutionalism and the European structure than the advent of a common standard of protection of basic rights. Furthermore, as this mutual monitoring and observation of the players in this competition between judges acts as a driving force, the tendency is “naturally” moving in the direction of a growing requirement to satisfy these same basic rights and, therefore, towards something that it would not be inappropriate to call “progress”. Here we also come back to one of the shared power lines of constitutionalism and the structure of the community. Both have always claimed to be dynamic, connected to a very voluntarist vision of history. Furthermore, as what is desired is a “community sharing a common fate”, it cannot be a matter for regret that similar rights, protected in analogous conditions, should be recognized by all in Europe. All the more so, given that this doesn’t exclude nuance, assertion of differences, or competition.

Conditions are in Place for a New Competition

20 Over the course of several months we have begun to see the precursors of a certain desire to outdo each other being revived. The example of police custody is of some interest in this respect. It is known that the absence of a lawyer during the first hours of custody, and especially the fact that the police have the authority to interrogate the detainee without his/her lawyer being present, have given rise to a barrage of rather remarkable decisions. The Constitutional Council, to simplify things, condemned common law police custody. However, it allowed the old system to remain in place for what could be called special cases of police custody (terrorism, etc.). The Court of Appeal, whose decision came some weeks later, chose to increase the level of constraint and denounced as contrary to the ECHR the special system of police custody that the Constitutional Court had allowed to remain in place. On the other hand, it took on board the Constitutional Council’s concerns over the immediate consequences that might be brought about by this invalidation of the law. It too decided to defer the implementation of its decision so as to allow the government time to draw up a new text. Thus the prospect of suspects being released too perfunctorily has been kept at bay. None of this lacks interest as regards the subject of the present study. The modulation of the effects of a legal decision over time originally comes from an invention—half conventional, half magisterial—of community law which the Council of State relayed and deployed jurisprudentially in its well-known Association AC! decision. [15] The Balladur Committee had had the idea of importing this mechanism during its discussions and suggested that the Constitutional Council might modulate the effects of its decisions to invalidate laws over time. The constituent followed it on this point. Now the Court of Appeal is adopting the same mechanism and conferring upon itself, de plano, the corresponding power. In terms of a chain of conceptual hybridization, it rarely gets better than this.

21 However, let us return to the reasons for the Court of Appeal having shown itself to be more demanding than the Constitutional Council regarding police custody. Clearly the role of politics in this choice should not be dismissed. The Court certainly did not see the prospect of appearing more severe than the Council and of thereby giving itself the image of being a “better” guardian of basic rights as being a bad thing. The Court was also by no means unhappy about seizing the opportunity to take a swipe at the Council which had, on the battle field, recently scored a number of important victories over the Court. Beyond this strategic element, it is not out of the question that the jurisprudence of the European Court of Human Rights is effectively pushing in the direction of this greater severity. Thus it can be seen here how, in a fairly contentious context, the diversity of courses of action against the law led very quickly to increased juridical pressure. Manifestly, in this matter, the competitive spirit has won out, with very significant juridical consequences (especially in Chancery, which must have found the sequence rather trying).However, are we not reaching the limit of the satisfaction expressed up until now? Has the snowball not become too big and, consequently, problematic? Whatever one thinks about the detail of the solution to this problem of police custody—and especially bearing in mind that some very sensible arguments can be advanced on both sides of this question—the fact that the problem exists cannot be denied. Is there a solution? Not really. When a system is generally virtuous—and we hope to have shown that the one we are familiar with today is, when carefully considered, very much so—there cannot really be a solution other than in the wisdom of its participants. It is their responsibility not to break the machine by causing it to overheat. No one can guarantee that this will always be enough. Undoubtedly we will experience surges of fervor in the future whose consequences may appear excessive. However, this is of little importance, as long as it remains epiphenomenal and the political class is not too frequently placed in a situation of impulsive overreaction. For one thing is almost certain: If, in the heat of anger and without long and serious reflection having preceded the movement, order has one day to be legistatively restored to this polyphony and great freedom of juridical discussion (itself made possible by constitutional reform), then this would be to everyone’s disadvantage, citizens and judges alike. No one has anything to gain from this. This is one more reason to hope that everyone will be able to carry out his/her duty and be dedicated to the beneficial exercise of competition with equal measures of plenitude and calm and with a sense of responsibility.