Review: Judicial Review, French Style

Author(s): Donald W. Jackson

Review by: Donald W. Jackson
Source: The Review of Politics, Vol. 55, No. 3, Special Issue on Public Law (Summer, 1993), pp.
556-558
Published by: Cambridge University Press for the University of Notre Dame du lac on behalf of
Review of Politics
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556 THE REVIEW OF POLITICS

students a substantial and wisely chosen sampling of writing in a now-

flourishing area of jurisprudence.

-Teresa Godwin Phelps

JUDICIAL REVIEW, FRENCH STYLE

Alec Stone: The Birth ofJudicial Politics in France: The Constitutional Council in

Comparative Perspective. (Oxford: Oxford University Press, 1992. Pp. vi, 312. $45.00.)

Alec Stone's keen analysis of the work of Constitutional Council in France

is a significant contribution to our understanding of judicial review. In my

own evaluation of social science scholarship, books of the first rank are those

that contain original concepts and insights that when presented are so clearly

apt and enlightening that its readers' most appropriate response is to say "of

course," and privately to wish they had thought of it themselves. The books

of the next rank are those that apply familiar but still important concepts to

new situations, making connections that, once again, readers wish they had

thought of themselves. Alec Stone's contribution is at this level, and thus his

is an important and useful book. The book also has the additional merit of

enlightening its readers in two disparate communities.

First, the book informs American judicial politics scholars about the work

of the French Constitutional Council in particular, but it also offers a frame-

work (chap. 9, pp. 245-53) for the comparative understanding of abstract

judicial review. This is important because the work of American judicial

politics scholars has mostly been myopic and clearly needs to become more

comparative. Second, for European public law scholars, but especially for

French adherents to the "cult of the robe," Stone's book contains the insights

that sometimes only an unindoctrinated outsider can offer. This is important

because many French public law scholars appear to have become both the

willing purveyors and consumers of judicial myths (pp. 105-10).

Part I of the book first sets out the historical background and context

(1789-1958) for the eventual emergence of abstract judicial review in France

through the Constitutional Council. To be precise, he describes the emergence

of the council's review as a priori abstract judicial review, which means a review

of pending legislation prior to promulgation and in its own abstract terms,

rather than in the event of a conflict over a particular application. Stone then

describes the early practice of abstract review, which, between 1959 and 1970

mostly involved the domination of the council by General de Gaulle and his

supporters. Particularly noteworthy is the vivid example offered by the

council being required to interpret the meaning of constitutional provisions

referred to it by a government dominated by the living architect of the

Constitution of the Fifth Republic. Indeed it was not until 1971 that the council

annulled a statute supported by the executive, an event described by one

scholar as France's Marbury v. Madison (p.66).

Part II presents Stone's in-depth analysis of what he call the juridicization

of the French policymaking process. Juridicization occurs when the process of

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 REVIEWS 557

abstract constitutional review impinges on the legislative process by affecting

policy outcomes either in anticipation of abstract review or in revising policy

so as to conform with the actual outcome of abstract review (p. 9).

Part III contains only the beginning of the comparative analysis of

abstract judicial review, in this instance by studying abstract judicial review

in Austria, West Germany (as it was) and Spain, in addition to France.

The understanding that drives judicial review, whether it be the abstract

review of as yet unpromulgated statutes or the review of concrete constitu-

tional controversies, is that certain principles are contained in a "higher law"

to which ordinary policies must yield when in conflict. In France, according

to Stone (p. 33), this has taken the form of constructing a "hierarchy of legal

norms." One interesting feature of the French hierarchy is the preamble to the

Constitution of 28 October 1946, which includes the recitation that the French

people "reaffirm solemnly the rights and liberties of man and of the citizen

consecrated by the Declaration of Rights of 1789 and thefundamental principles

recognized by the laws of the Republic" (FPRLR) (emphasis added, Appendix p.

257). Before 1981, the FPRLR represented an important, even if highly am-

biguous source of "higher law." Perhaps partly to avoid the appearance of

ambiguity, recent council decisions have less often relied on FPRLR.

The principal conceptual opponent of judicial review is the priority of

majoritarian preferences or, as Stone notes in France (p.24), the "ideology of

the General Will." Politics is the means by which the people, through popular

sovereignty express that will. It follows that legislative bodies are the arenas

through which the popular (political) will is most appropriately expressed. It

also follows that judicial intrusion upon popular sovereignty is anathema, if

that means the specter of gouvernement des juges (p. 87) who are motivated by

politics rather than being strictly ruled by law (p. 107).

Perhaps the most interesting part of the book to an American political

scientist is chapter 4, in which Stone demonstrates the degree to which French

academic lawyers have, since the early 1980s, embraced the view that the

Constitutional Council is strictly a legal institution "radically disassociated"

(p. 105) from things political. A scholar who seeks actually to analyze the

process through which the council makes decisions, rather than merely to

affirm its "neutral and objective" nature, faces a daunting task. As Stone notes:

"The body deliberates in official secrecy, votes may not be made public, and

dissenting and concurring opinions are not permitted. Thus, although Coun-

cil judges vote and have differences of opinion, their behavior cannot be

analyzed in the same way as that of their counterparts in other political

systems" (p. 105).

One result is that the analyst is ill-equipped to compete with "jurispru-

dential commentary and polemical debate." Even so, Stone's position is "that

the Council is political" and "that its decisions are political events." But his

avowed purpose is "to observe, describe and even evaluate t[he] building

process, but not to participate in it" (pp. 108-1099).

Stone hypothesizes that abstractjudicial review leads to the "juridicization

of the policymaking processes." Thus constitutional courts serve the function

of "third legislative chambers"-an outcome which he believes potentially to

be more destabilizing than concrete judicial review (as in the United States).

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558 THE REVIEW OF POLITICS

Toward the end of his book, Stone cites the Kelsenian model of constitu-

tional review (p. 229). According to Kelsen, a key element in avoiding judicial

intrusion into policymaking processes is for constitutions to avoid enshrining

bills of rights, lest judges assume a positive role in enforcing abstract "norms

of natural law." The crucial departure from Kelsen's model is that most

European constitutions do grant constitutional courts jurisdiction over a

written bill of rights. Stone adds that the practice of abstract judicial review

inevitably injects constitutional courts into the legislative process. That seems

especially to have been the case in France. Whether such constitutional courts

make better law than do legislatures remains to be seen. Stone's book is an

excellent place to start.

-Donald W. Jackson

THE SOUL OF CONSTITUTIONAL CULTURE:

ISRAEL AND THE UNITED STATES

Gary Jeffrey Jacobsohn: Apple of Gold: Constitutionalism in Israel and the United

States. (Princeton: Princeton University Press, 1993. Pp. ix, 284. $39.50.)

For nearly a half-century, if not for far longer, pundits have augured the

development of comparative constitutional law as a prominent part of public

law scholarship. Constitutional and political change between the two world

wars, and after the second, provided much of the impetus for these predica-

tions in the 1950s and early 1960s. A few important studies appeared, but on

the whole, the field of comparative constitutional law continued along in near

obscurity, confounding its cheerleaders.

Once again, however, rapid and extensive political and constitutional

change seem to presage the importance of comparative constitutional law as

a field of academic inquiry. A skeptic might suggest that interest in the field

will peak for awhile, only to recede again as the press of events becomes less

insistent. One hopes not, but if so, we can find some solace in the publication

of Apple of Gold: Constitutionalism in Israel and the United States. Jacobsohn's

comparative study of constitutionalism in the United States and Israel is a

model of comparative constitutional analysis, and the best book of its kind in

a very, very long time.

The title, "Apple of Gold," is a reference to Proverbs 25:11, "A word fitly

spoken is like apples of gold in pictures of silver." President Lincoln used the

phrase to describe the relationship between the Declaration of Independence

(the apple) to the Constitution (the picture of silver). Jacobsohn's use of the

phrase assumes the same relationship between the Declaration and the

Constitution. The Declaration, following this understanding, is the ultimate

source of constitutional meaning, anterior to the constitutional text proper.

Jacobsohn's approach allows him to forsake narrow, doctrinal discussions

about single constitutional provisions in favor of subtle and sophisticated

discussions about the nature of liberal constitutionalism more generally.

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