Comparative Law Notes 10

Comparative Law Notes

LAW 6250
Professor Pedro A. Malavet

Class Notes Part Ten

Chapter 10: The French Legal System: A Critical View

A. An Overview of the French Legal System:
An Introduction to a Very Different View of Constitutionalism

Judicial Review and Constitutionalism:
A Critical View of the French System

“Constitutionalism”
Modern European Constitutionalism, the last of the Sub-Traditions that I have mentioned, represents my view of the Future of the Civil Law Tradition. It is mostly a post-Second World war constitutional phenomenon.
Simply put, it means what kind of constitutional republic do you want/actually have.

Sub traditions of the Civil Law
(1) Roman Civil Law
(2) Canon Law
(3) Commercial Law
(4) The Revolution
(5) Legal Science
(6) Modern Constitutionalism
(which takes on renewed significance in Post-WWII Europe)

The Republics of France:

First 1792-1804

Second 1848-1852
Third 1870-1940
Fourth 1944-1958
Fifth 1958-Present
The Republics of France
First 1792-1804
coup in 1794
“Directorate Period” from 1795 to 1799, followed by Consulate.
ends formally in 1804 when Napoleon becomes Emperor
Second 1848-1852
Brief period of republicanism imposed by rioters (a special theme for the French)
Coup in 1851
Napoleon III ascends to power in 1852

The Republics of France
Third 1870-1940
Starts upon the fall of the second empire of Napoleon III
Franco-Prussian War results in French defeat
Paris Commune repressed (by returning former POWs back in the French Army)
The Belle Epoque begins and with it the Third Republic; it all ends with the German blitz in 1940

The Republics of France
Fourth 1944-1958
Marked by deep political factionalism
Defeat of French forces in Indochina (Viet Nam)
Algerian independence
Fears, and the real threat, of a military coup
Fifth 1958-Present
De Gaulle takes over but demands a new constitution with hyper-powerful presidency

1958 Constitution makes the regulatory (i.e., executive) area the rule and the statutory (i.e., legislative) the exception.

The U.S. version of Separation of Powers that I graphically describe here, was NOT adopted by the French. Note how Article 37 creates a super-powerful executive, and Article 34 narrowly and expressly defines a limited legislative authority. The Constitutional Council was intended to protect the prerogatives of the presidency by enforcing the limitations on the legislative power. The (ordinary) courts are not even considered a co-equal power.

French Constitution Article 37

[1] Matters other than those governed by laws (loi) are of a regulatory character.

[2] Legislative texts concerning these matters may be modified by decrees (décrets) issued after consultation with the Council of State.

[3] Those legislative texts produced after this Constitution comes into force cannot be modified by decree unless the Constitutional Council declared that they have a regulatory character according to the first paragraph of this Article.

Executive Regulatory Power

Government Ordinance: in areas of legislative jurisidiction, the Government acts only within a delegation of power by the legislature.

Government Decree: in Regulatory areas, the Government has unfettered constitutional authority and discretion.

ONLY LIMITATION: When amending a legislative statute, must have the consent of the Council of State.

Art. 34: Laws are enacted by parliament and govern:

Civil rights and the fundamental guarantees of citizens in the enjoyment of their public liberties; national defense obligations imposed on the persons and property of citizens;
Nationality, the status and capacity of persons, matrimonial regimes, successions, and gifts;
definition of crimes and misdemeanors (délits) and the applicable punishments; criminal procedure; amnesty; the creation of new kinds of courts and the status of magistrates;
the budget, taxes, and the methods of collecting imposts of all types; the issuance of money.
elections to Parliament and local assemblies;
fundamental guarantees granted to civil and military personnel employed by the State;
nationalization of enterprises and transfer of enterprise from the public to the private sector.

Laws establish fundamental principles:

of the general organization of the national defense;

of the free administration of local organizations; their competence and their resources;

of education;

of the property regime, real rights, and civil and commercial obligations;

of labor law, union law, and social security.

Government
—The total political organs that govern a society, including legislative, executive and judicial [branches].
—The Council of Ministers and other high [usually politically-]appointed executive officials (actually, we call this the “Administration” in our system).

The French Parliament: The National Assembly and the Senate
the Assembly has 577 members, elected by universal suffrage within their districts.
the Senate currently has 346 (as of 2010).
Senators are elected by a kind of electoral college of 150,000 persons, including, all members of the National Assembly, 1,870 regional counselors, 4,000 general counselors, and 142,000 delegates from municipal councils.

Executive Regulatory Power
1) Government Ordinance: in areas of legislative jurisdiction, the Government acts only within a delegation of power by the legislature. Art. 38 of the French Constitution
2) Government Decree: in Regulatory areas, the Government has unfettered constitutional authority and discretion.
-- ONLY LIMITATION: When amending a legislative statute, must have the consent of the Council of State.

French Decrees [1]
1) Réglements D'administration Publique: the most solemn kind of executive orders; must be submitted to the Conseil D'Etat; signed by the president of the Republic and/or by the Prime Minister.
2) Décrets: subordinate to RAPs, also signed by the president of the Republic and/or by the Prime Minister.
French Decrees [2]
3) Arretés Ministériels: issued by the different ministers.
4) Instruction Générale (or "Circulaire"): the official commentary on the legal rules (compulsory for the Administration but with no binding effect for the general public).

Judicial Authority,
No longer officially a “power” or branch
Limited by French vision of Separation of Powers:
1) Judicial authority remains separated from the executive functions
2) Judges are forbidden to concern themselves with executive action, even to the extent of losing jurisdiction in cases involving the government
3) Art. 5 of the Civil Code forbids general stare decisis
4) Legislation and decress fix procedure and judicial organization and regulation

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The Republics of France:p. 484-85
First 1792-1804
coup in 1794
“Directorate Period” from 1795 to 1799, followed by Consulate.
ends formally in 1804 when Napoleon becomes Emperor
Second 1848-1852
Brief period of republicanism imposed by rioters (a special theme for the French)
Coup in 1851
Napoleon III ascends to power in 1852

The Republics of Francepp. 484-485
Third 1870-1940
Starts upon the fall of the second empire of Napoleon III
Franco-Prussian War results in French defeat
Paris Commune repressed (by returning former POWs back in the French Army)
The Belle Epoque begins and the Third Republic ends with the German blitz in 1940

The Republics of Francepp. 484-485
Fourth 1944-1958
Marked by deep political factionalism
Defeat of French forces in Indochina (Viet Nam)
Algerian independence
Fears, and the real threat, of a military coup
Fifth 1958-Present
De Gaulle takes over but demands a new constitution with hyper-powerful presidency

U.S. Separation of Powers(rejected by the French, p. 483)

French Government
The total political organs that govern a society, including legislative, executive and judicial [certainly what we label “branches”].
The Council of Ministers and other high [usually politically-]appointed executive officials (actually, we call this the “Administration” in our system).

The French Parliament: The National Assembly and the Senate
the Assembly has 577 members, elected by universal suffrage within their districts.
the Senate currently has 331 members, but that number increases to 346 in 2010.
Senators are elected by a kind of electoral college of 150,000 persons, including, all members of the National Assembly, 1,870 regional counselors, 4,000 general counselors, and 142,000 delegates from municipal councils.

1958 Constitution
1958 Constitution makes the regulatory (i.e., executive) area the rule and the statutory (i.e., legislative) the exception.
Concept introduced at page 483.

French Constitution Article 37
[1] Matters other than those governed by laws (loi) are of a regulatory character.
[2] Legislative texts concerning these matters may be modified by decrees (décrets) issued after consultation with the Council of State.
[3] Those legislative texts produced after this Constitution comes into force cannot be modified by decree unless the Constitutional Council declared that they have a regulatory character according to the first paragraph of this Article.

Judicial Authority,
No longer officially a “power” or branch
Limited by French vision of Separation of Powers:
1) Judicial authority remains separated from the executive functions
2) Judges are forbidden to concern themselves with executive action, even to the extent of losing jurisdiction in cases involving the government
3) Art. 5 of the Civil Code forbids general stare decisis
4) Legislation and decrees fix procedure and judicial organization and regulation
France

The Council of State: Contentious Sec.
Members of the Contentious Section of the Council of State
The French Administrative Courts
French Judicial Functions
Ordinary Courts (civil and criminal), headed by the Cour de Cassation
Administrative “Courts” (covers a broad range of executive action and matters involving state actors), headed by the Council of State’s Contentious Section

Membership of the Court of Conflicts:p. 485
The Minister of Justice, who presides (though usually only if there is going to be a tie vote)
Three counselors (senior members) selected by and from the Conseil d'Etat, and
Three counselors (senior members) elected by and from the Cour de Cassation;
Two more judges from the Conseil d'Etat and from the Cour de Cassation; each is jointly elected by the first seven.

Court of Conflicts:p. 485
1) The Minister of Justice, who presides,
2) Three counselors (senior members) selected by and from the Conseil d’Etat, and
3) Three counselors (senior members) elected by and from the Cour de Cassation;
4) Two more judges from the Conseil d'Etat and from the Cour de Cassation; each is jointly elected by the first seven.

French Constitution Art. 34
Laws are enacted by parliament and govern:
1] Civil rights and the fundamental guarantees of citizens in the enjoyment of their public liberties; national defense obligations imposed on the persons and property of citizens;
2] Nationality, the status and capacity of persons, matrimonial regimes, successions, and gifts;
French Constitution Art. 34
3] Definition of crimes and misdemeanors (délits) and the applicable punishments; criminal procedure; amnesty; the creation of new kinds of courts and the status of magistrates;
4] The budget, taxes, and the methods of collecting imposts of all types; the issuance of money.

French Constitution Art. 34
Laws also govern
5] Elections to Parliament and local assemblies;
6] The Creation of categories of public agencies;
7] Fundamental guarantees granted to civil and military personnel employed by the State;
8] Nationalization of enterprises and transfer of enterprise from the public to the private sector.

French Constitution Art. 34
Laws establish fundamental principles:
of the general organization of the national defense;
of the free administration of local organizations; their competence and their resources;
of education;
of the property regime, real rights, and civil and commercial obligations;
of labor law, union law, and social security.

So who “enforces” the Constitution?
Before 1958, the legislature was essentially left alone in this area.
After 1958, a new system of review of the constitutionality of legislative action is incorporated into the Constitution.

What about executive action?
Prior to 1958: Legislative Supremacy
Before 1958, the legislature had in fact gained almost unlimited power. It closely supervised executive action. Because the courts could not declare a statute passed by Parliament unconstitutional, constitutional limits on legislative power were purely formal.
After 1958, the Constitutional Council reviews laws, pp. 485, et seq.

Membership in the Council,
Nine appointed members (to a single 9-year term)
Staggered appointment every three years
President of the council designated by President of the Republic

Appointing authorities
President of the Republic
President of National Assembly
President of the Senate
Additional members: former Presidents of the Republic

Constitutional Council Procedure
Written and inquisitorial
Parties represented by counsel
No dissenting opinions considered
“Hearing” or plenary discussions are not published
Independent budget created by the President of the Council and attached to legislation

Jurisdiction of the Constitutional Council
1) Mandatory or automatic when it is an organic act (all organic acts were passed by December 1958).
2) Optional (Discretionary) as to any other law upon request by
(a) the President,
(b) the Prime Minister,
(c) the Presidents of the Senate or the Assembly, or
(d) any 60 parliamentarians (after 1974 reform)
(e) new judicial referral procedure (Constitutional Amendment of 2008 and Ordinance issued in 2009 and effective March 1, 2010)

Procedure:
Abstract: meaning that it is not a case or controversy, from our perspective
Timing:
Appeals to the Constitutional Council occur before the act becomes law but after passage by the legislature, i.e., in the time after passage but before the President signs it into law.

Article 16 Consultation
Article 16 gives the President Emergency powers
–Consultation on its application
–Consultation on decisions taken under article 16
Consultation also available for certain types of votes

Article 16 Consultation Language
After thirty days of the exercise of such emergency powers, the matter may be referred to the Constitutional Council by the President of the National Assembly, the President of the Senate, sixty Members of the National Assembly or sixty Senators, so as to decide if the conditions laid down in paragraph one still apply. It shall make its decision by public announcement as soon as possible. It shall, as of right, carry out such an examination and shall make its decision in the same manner after sixty days of the exercise of emergency powers or at any moment thereafter.

New Individual Referral
Before Courts coming under the supervisory jurisdiction of the Conseil d'Etat or the Cour de cassation, the argument that a statutory provision infringes the rights and freedoms guaranteed by the Constitution shall, on pain of inadmissibility, be raised in writing and accompanied by a reasoned justification of this argument. Such an argument may be raised for the first time before a Court of Appeal. It cannot be raised by the court proprio motu.

New Individual Referral
Before a Court coming under the supervisory jurisdiction of the Cour de cassation, when the Public Prosecutor is not a party to these proceedings, the matter shall be brought to his attention once the argument has been raised so that he may make his opinion known.

New Individual Referral
The Court shall rule without delay, giving reasons for its ruling, as to the transmission to the Conseil d'Etat or the Cour de cassation of the application for a priority preliminary ruling on the issue of constitutionality. Such transmission shall require that the following conditions be met:

New Individual Referral
1° The challenged provision is applicable to the litigation or proceedings underway, or is the grounds for said proceedings;
2° Said provision has not previously been found to be constitutional in the holding of a decision of the Constitutional Council, except in the event of a change of circumstances
3° The matter is of a serious nature

Effect of Council Decisions,
The decisions of the Council are binding on the public authorities and all administrative and judicial authorities. No appeal lies against them. The legal force of the decision attaches not only to the judgment itself but also to the necessary reasons in support of it. However, the Constitutional Council does allow appeals on matters of material error.
Decisions on conformity lead to the total or partial censure of the law but not its annulment, since they are handed down before the legal act which is required for implementation (promulgation, ratification).

B. The French Appellate Court System: Basic Overview

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Jurisdiction of the Conseil D'Etat
1) Cassation, special review on issues of law, on motion to quash lower administrative courts' ruling;
2) Original trial jurisdiction on the constitutionality or underlying legality of administrative action;
3) Reference Procedure: lower level administrative court may request a non-binding, but usually-followed decision, on novel issues of law.

Divisions of the Conseil D’Etat
Interior
Finance
Public Works
Social Affairs
Judicial (Section du Contentieux) (over 100 justices in ten subsections or panels).

Judicial Practice
Robert Cover described courts as “characteristically ‘jurispathic.’” That is, they tend to kill — and perhaps exist precisely for the purpose of killing — the proliferation of legal meaning.
Horrified by what we learn about it?
(Perhaps shocked by the difference?)
Under international attack using European Convention on Human Rights

What is Judicial “Due Process”?
In the U.S., notice and opportunity to be heard in a party-driven system
In France, there is notice, and opportunity to be heard, but the court drives the process

Process
(More on this next week)
Court of Cassation and Council of State produced initial drafts of opinions prior to oral argument
“Judicial Amicus” presents views after oral argument and retires with judges
What do we do?

Judicial Practice
France:
A civil service, collegial system of lifetime employment, meritocratic retention and hierarchical promotion and supervision
United States:
A more democratic system that polices itself.
(Subject to separation of powers, which the author manages to ignore)

Basic French Approach
(1) entrusting the judiciary with the task of handling legal controversies in such a way as to promote the general interest and the public good; and
(2) constraining judges by placing them, throughout their careers, in a reliably meritocratic and hierarchical institutional framework.
This produces a privileged and sequestered —i.e. secret— deliberation process

The Role of the Opinion
France:
To announce a result mandated by law after the collegial/professional judicial process
United States
To explain the result, based for the most part on the parties’ determination of the issues and argument

Are judicial opinions “Law”?
Not officially in France:
As a result their decisions lack the “force and status of law”
In the United States:
Common law, stare decisis, law of the case
“Explicit” authority? Where?

Judicial Decisions: Cour de Cassation, an example
–THE COURT –
–Having seen articles 5 and 1382 of the Civil Code;
–Whereas the plaintiff did X;
–Whereas the defendant did Y;
–Whereas the Appellate Court ruled Z;
–On these grounds, quashes the Appellate Court decision [or rejects the appeal to do so].

French Civil Code Article 5
Judges are forbidden to pronounce decisions by way of general regulatory provisions on cases that are submitted to them.

French Civil Code Art. 1382
Any act of man, which causes damages to another, obliges the person at fault to repair it.

Art. 1 Swiss Civil Code
The law regulates all matters to which the letter or the spirit of any of its provisions apply.
In the absence of an applicable legal provision, the judge pronounces in accordance with customary law and, in the absence of a custom, according to the rules that he would establish if he had to act as legislator.
He is guided by the solutions consecrated by juristic opinion and case law.

French De Facto Jurisprudence
1. Jurisprudence constant,
i.e., a series of concordant decisions;
2. arrêt de principe,
i.e., a judgment intended to establish principle, either because the matter was unsettled or because it reverses prior decisions;
3. arrêt d’espece,
a case limited to its own facts.

Critiques of the French System
In one harsh analysis after another, the French system has been accused of being crude, theoretically unsophisticated, jurisprudentially retrograde, publicly disingenuous, and, above all, deeply and damagingly formalist.

There is more to it than that…
The author argues that the opinion is the “tip of the iceberg”
In the United States, the opinion speaks for itself and is publicly debated thereafter
In France, the sophisticated debate takes place within the collegial body of the Cassation Court

Judge Rapporteur
The rapporteur’s job is to produce for her brethren a report —a document often thirty to fifty pages long— in which she presents the procedural history of the case, the claims of the parties, her analysis of the relevant statutory, judicial and academic materials, her proposed solution, and finally several draft judicial decisions, each as perfectly syllogistic as the next (although they arrive, of course, at different conclusions).

Appellate Procedure
Reporting magistrate is appointed from among members of the court
“Amicus”: really a privileged governmental participant, the “advocate general,” and in the
Conseil d’Etat he is known as the “Commissaire du Gouvernement” (CDG).

Oral Argument/Decision
At oral arguments, the rapporteur opens the proceedings by reading her summary of the procedural history and the claims of the parties.
the attorneys can choose to present oral arguments [but usually do not]
Finally, the judicial amicus presents his own independent opinion (conclusions).

Oral Argument/Decision
The judicial panel then retires to deliberate,
often accompanied by the judicial amicus, although he may not vote and is traditionally expected to keep fairly quiet, as he has just given his opinion.

“Secrecy of Deliberations”
In the U.S. applies to multi-judge panels and juries
In French appeals, to the judges AND to rapporteur
The rapporteur takes out of the file her avis after the decision!
“Public” part read in open court rarely heard by parties or counsel and never published
Note that full-text publication is non-existent and only selected opinions are even published

Nature of Private Debate
heavily informed by academic writing,
they argue at length about why a particular line of judicial decisions should - or should not - be maintained, modified or overturned.
arguments primarily focus on institutional, economic, social, or other policy concerns, the need to modernize the law to adapt to changing social realities, and, most often,
issues of fundamental fairness and good old-fashioned equity.

Sources of Law
Only the political (elected) branches of government can produce law:
–legislative loi and
–executive decrees and regulations
Judges must not usurp this legislative (and executive) lawmaking power, because to do so would violate the most fundamental premise of a republican form of government.

Jurisprudence is not Loi
The judiciary resolves “ordinary” disputes and the legislature resolves “important issues”
Jurisprudence, judicial decisions, are not law, but they may become judicial custom in applying the law.
This generally requires a series of decisions, often accompanied by
general acceptance among legal academics (at least those who publish).

The “Filter”?
Academic Reporting
an academic essay [published] right alongside the brief - even cryptic - judicial decision.
This case commentary presents and explains the judgment in some detail, places it in the context of other relevant judicial decisions and academic analyses, and assesses the decision's doctrinal, theoretical, and pragmatic policy significance.
Published in the major case reports, these doctrinal notes therefore forever frame and critique - and thus serve as the mediating filter for - the judgments they accompany.

Which is the Law?
Neither the decision nor the academic analysis of it are official sources of law
But both are “authorities” as persuasive
Judges “lose[] much of their ability to control the effect of their own decisions”
–Do they want it?
–Is this really true?

Judges or Counselors,
“Republican hierarchy”?
Cross-reference to our early discussion of legal education and professions
The public educational system educates, tests, and ranks the students.

Is this the new “class” system?
Judicial “Formation,” meaning selection, education, training and retention/supervision
Ranking in School and Exams determines future posts
Specialty schools are required for Magistrates (ordinary judges): Ecole Nationale de la Magistrature (3-year course)
Counselors (members of the Council of State): Ecole Nationale d’Adminstration
Even the advocates in these courts are a small elite corps of licensed lawyers (remember that there are 60 licenses for fewer than 100 lawyers

The new parlementaires?
Or, the trusted bureaucracy?
These elites are considered trustworthy because they are controlled by powerful educational, meritocratic, and institutional means.
–Note that this is implemented by repeated examination and ranking even after school admission
Hierarchy within the civil service is a major source of control

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C. Judicial Review and Constitutionalism:
The French Appellate Court System Under International Scrutiny

10.C. The French System under International Scrutiny
The existing appellate practice in the Court of Cassation and the Council of State were repeatedly attacked before the European Court of Human Rights (ECHR).

The ECHR
The European Court of Human Rights is an international court set up in 1959. It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Since 1998 it has sat as a full-time court and individuals can apply to it directly.
Based in Strasbourg, France
http://www.echr.coe.int/

The link that I included in the PDF version does not work because the site requires users to enter through the main page. This link is corrected.

The European Court of Human Rights
The European Convention on Human Rights is an international treaty under which the member States of the Council of Europe promise to secure fundamental civil and political rights, not only to their own citizens but also to everyone within their jurisdiction. The Convention, which was signed on 4 November 1950 in Rome, entered into force in 1953.

The Convention secures in particular:
the right to life,
the right to a fair hearing,
the right to respect for private and family life,
freedom of expression,
freedom of thought, conscience and religion and,
the protection of property.

The Convention prohibits in particular:
torture and inhuman or degrading treatment or punishment,
slavery and forced labour,
death penalty,
arbitrary and unlawful detention, and
discrimination in the enjoyment of the rights and freedoms set out in the Convention.

Art. 6: Right to a Fair Trial
(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Art. 6: Right to a Fair Trial
(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

Art. 6: Right to a Fair Trial
(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;

Art. 6: Right to a Fair Trial
(3) continued
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of wit- nesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

ECHR, Old View:
Delcourt v. Belgium
The Procureur general’s department at the Court of Cassation is, in a word, an adjunct and an adviser of the Court; it discharges a function of a quasi-judicial nature. By the opinions which it gives according to its legal conscience, it assists the Court to supervise the lawfulness of the decisions attacked [by the appeal] and to ensure the uniformity of judicial precedent. Examination of the facts shows that these considerations are not abstract or theoretical but are indeed real and actual.

What is the Appropriate
United States Comparison?
Would you like the Solicitor General to have a similar position?
Or is this more analogous to a judicial law clerk?

ECHR attacks!:
Borgers v. Belgium
While “independent” and “impartial”
Nevertheless the opinion of the procureur general's department cannot be regarded as neutral from the point of view of the parties to the cassation proceedings. By recommending that an accused's appeal be allowed or dismissed, the official of the procureur general's department becomes objectively speaking his ally or his opponent. In the latter event, Article 6(1) requires that the rights of the defence and the principle of equality of arms be respected.

Ex Parte Communications?
Lacks notice, and opportunity to be heard
Basic U.S. Due Process and Professional adversarial ethic

Borgers v. Belgium: Ex Parte
Further and above all, the inequality was increased even more by the avocat general’s participation, in an advisory capacity, in the Court’s deliberations ... . Even if such assistance was ... limited in the present case [to merely stylistic help in drafting the Court’s judgment], it could reasonably be thought that the deliberations afforded the avocat general an additional opportunity to promote, without fear of contradiction by the applicant,

Changes in Response
Belgian Cour de cassation had significantly changed its procedural rules in criminal cases.
Now, not only could the accused respond to the oral arguments of the judicial amicus, but
the amicus was also barred from attending the deliberations of the sitting judicial panel.
In civil cases, however, the Belgian court saw no reason to change its time-honored procedure

Vermeulen v. Belgium
The Due Process rules apply equally to civil and criminal cases
Belgian grant to accused of right to respond to procureur’s argument and exclusion of the procureur from deliberations in criminal cases only was not enough.
Other courts’ similar procedures using the French model also illegal

Net “Benefits” of ECHR Rulings?
In the Court of Cassation
(1) in some instances, the procedural right to receive some form of advance notification of the positions taken by the two important French magistrats - the rapporteur and the judicial amicus;
(2) the right to respond, in some way, to the amicus's oral arguments; and
(3) what amount to negative rights regarding the amicus, namely, that he not receive privileged access to the rapporteur's complete work product and that he not be able to participate in post-oral argument judicial deliberations.

Benefits: Council of State
None in the Council of State
Old procedure allowed judges to request a preview of the judicial amicus’ brief
Position upheld by ECHR

Benefits: Cassation Court,
Prior notice of
(1) whether the rapporteur has already written a report in favor or against cassation, in whole or in part; and
(2) the gist of the amicus' position.
Not very good for oral argument
No right to submit amended briefs
Right to Respond During

Oral Arguments
By way of oral argument or written note submitted for deliberations
Is this really meaningful?
Because French supreme court attorneys actually make oral arguments in less than one out of every hundred cases before the Cour de cassation and the Conseil d'Etat.

Reinhardt and Slimane-Kaid v. France
Given the importance of the reporting judge’s report (and in particular the second part thereof), the advocate-general’s role and the consequences of the outcome of the proceedings for Mrs. Reinhardt and Mr. Slimane-Kaid, the imbalance thus created by the failure to give like disclosure of the report to the applicants’ advisers is not reconcilable with the requirements of a fair trial.

Response from Conceil
But considering that the commissaire du Gouvernement, whose mission is to present the questions raised by each appeal and to make known, by formulating his conclusions in total independence, his assessment, which must be impartial, of the factual and legal issues as well as his opinion on the solutions that, according to his conscience, are called for by the case pending before the court of which he is a member, pronounces his conclusions after the closure of the instruction phase of the procedure, which is conducted in a confrontational manner; considering that he participates in the judging functions that devolve upon the court of which he is a member; that the exercise of this function is not subject to the principle of confrontation applicable to the instruction phase; considering that it follows that, no more than the Reporting Judge’s note [i.e., the second part of his Report] or the draft judgment, the conclusions of the commissaire du Gouvernement — which furthermore need not be reduced to writing — are not subject to prior communication to the parties, who, furthermore, are not invited to respond to them; [the appeal is therefore rejected].

Kress v. France
On the one hand, the ECHR extended its Borgers jurisprudence in Kress by condemning the CDG’s “participation in the deliberations of the trial bench.” The ECHR rejected the French contention that the CDG is “a full member of the trial bench, on which he functions, in a manner of speaking, like a second Reporting Judge.” The Court reasoned that the CDG could not truly be a judge, because “a judge cannot abstain from voting unless he stands down[,] ... [and] it is hard to accept the idea that some judges may express their views in public while the others may do so only during secret deliberations.”

Kress (2)
In publicly expressing his opinion on the rejection or acceptance of the grounds submitted by one of the parties, the [CDG] could legitimately be regarded by the parties as taking sides with one or other of them.
In the Court’s view, a litigant not familiar with the mysteries of [French] administrative proceedings may quite naturally be inclined to view as an adversary a [CDG] who submits that his appeal on points of law should be dismissed. Conversely, a litigant whose case is supported by the [CDG] would see him as his ally.
The Court can also imagine that a party may have a feeling of inequality if, after hearing the [CDG] make submissions unfavourable to his case at the end of the public hearing, he sees him withdraw with the judges of the trial bench to attend the deliberations held in

Kress (3)
Contrary to the position in Reinhardt and Slimane-Kaid, it is not disputed that in proceedings in the Conseil d’Etat lawyers who so wish can ask the [CDG], before the hearing, to indicate the general tenor of his submissions. Nor is it contested that the parties may reply to the [CDG’s] submissions by means of a memorandum for the deliberations, a practice which — and this is vital in the Court’s view — helps to ensure compliance with the adversarial principle ... .
...
That being so, the Court considers that the procedure followed in the Conseil d’Etat affords litigants sufficient safeguards and that no problem arises from the point of view of the right to a fair trial as regards compliance with the principle that proceedings should be adversarial.
There has consequently been no violation of Article 6 1 of the Convention in this respect.

Further Problem:
Work other than Rapporteur’s
by the president or one of the other two assesseurs [supreme court judges] constituting the bench. The reviser re-examines the evidence and forms a view as to how the case should be decided. He may himself prepare another draft decision in the event of disagreement with the reporting judge. Once the draft decision has been revised, the case is listed for consideration at a preparatory sitting of the section, at which it will be discussed in the presence of the [CDG], who does not, however, take part in the vote on the draft.

Work other than Rapporteur’s (2)
Only when the draft decision has been adopted by the section will the file be forwarded to the [CDG] to enable him either to prepare his submissions or to ask for a fresh preparatory sitting to be convened or for the case to be transferred to a differently constituted court.

Work Other than Rapporteur’s (3)
When [the CDG’s] view of a case differs from that of the section, he can come and discuss it with the section at another preparatory sitting. If the disagreement remains and he considers that the case is of sufficient importance, he has the right (rarely exercised in practice) to request that the case should be referred to the Judicial Division or to the Judicial Assembly. Only after that will he prepare his submissions for the actual trial, which is open to the public.

What about Counsel?
Remember from past classes that there are a very limited number of licenses for private lawyers to practice in these courts
For a host of practical, professional, institutional, procedural, and cultural reasons, French supreme court attorneys almost never present oral arguments to begin with. For all intents and purposes, therefore, it is of almost no consequence for the ECHR to provoke an apparent strengthening of this oral practice without addressing the underlying reasons for which this oral practice is traditionally ignored in the first place.

Excluding from Deliberations
Rapporteur and CDG excluded from judicial discussion.
These designated reporters could agree or disagree with any one party
Author takes the position that this deprives the court of useful information and is not of benefit to the parties

Hitting them where it hurts
The ECHRs decisions strike at the very heart of the French internal vision of Due Process.
It could (eventually did) eliminate the advocate from within in the Cassation Court
It challenges the meritocratic institutional vision of the French (especially its internal vision of absolute dedication, honesty and professionalism that is beyond political influence).

The French View: Haim
That said, notwithstanding the fact that the CDG is a member of the tribunal to which he presents his conclusions, would it not be preferable that his conclusions be obligatorily communicated to the parties, who could therefore respond to them?

Haim continued
This is a claim that is no longer rare to make, usually on the basis of deeply flawed reasoning. Clearly, there would be something pleasant about adopting such a stance: now that participation and interactivity are all the rage, the parties would be able to participate in the elaboration, and why not even in the composition, of the judgments in their own cases. Just as there exist such toys as “the book in which you are the hero” for ten to twelve year-olds, there could exist for somewhat older ones “the judicial decision adopted in view of your own conclusions along with those of the CDG.”

The French view: Judge Thierry
It is important to note that the ECHR abandons in its Voisine decision the reasoning of its Borgers decision, according to which, “by recommending in favor or against the appeal of an accused,” the Advocate General thereby “becomes his objective ally or opponent.” According to such reasoning, the Cour de cassation, when it rejects the appeal of an accused, would also become his objective opponent, which is simply absurd.

The Paradox of Competing Notions
of Due Process
ECHR has a clear vision of what due process is
But it needs the national courts to enforce its judgments
Note the dissenting view (and that dissents are almost unheard of in European appellate practice)
An unhealthy dynamic of resistance among national courts (a type judicial nationalism)

The Independent Official
Today, it is no longer possible even to conceive of analogizing the CDG and the ministere public [i.e., the corps of Advocates General before the regular courts, headed by the Cour de cassation].

The Independent Official
First of all, the ministere public is composed of judicial magistrates who, just like the sitting judges, belong to the judicial corps, but who nevertheless differ from them in every way: they are not immovable, they are subject to a different disciplinary system, and even if “they have freedom of speech at oral arguments,” it nonetheless remains the case that they exercise their functions “under the direction and control of their hierarchical superiors and under the authority of the Minister of Justice.” Nothing comparable exists at the Conseil d’Etat ... .

The Legal/Philosophical/Political Implications of the ECHRs attacks on French Procedure, [Not Covered in 2011]

Using article 6(1) of the Convention to determine what minimal due process means in the context of French practice implicates a real culture clash between the Republican Institutionalist tradition of limited judicial power and a strong executive in France on the one hand, against a modern constitutional view that a strong and independent judiciary is the best guardian of civil rights in a democratic state.

Judicial Review and Constitutionalism: A Critical View of the French System

EHRC Art. 6(1)
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

EHRC Art. 6(2)
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

EHRC Art. 6(3)
Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and the facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Divisions of the Conseil D’Etat
Interior
Finance
Public Works
Social Affairs
Judicial (Section du Contentieux) (over 100 justices in ten subsections or panels).

Net “Benefits” of ECHR Rulings?P. 519
(1) in some instances, the procedural right to receive some form of advance notification of the positions taken by the two important French magistrats - the rapporteur and the judicial amicus;
(2) the right to respond, in some way, to the amicus's oral arguments; and
(3) what amount to negative rights regarding the amicus, namely, that he not receive privileged access to the rapporteur's complete work product and that he not be able to participate in post-oral argument judicial deliberations.

Benefits: Council of State, p. 519
None in the Council of State
Old procedure allowed judges to request a preview of the judicial amicus’ brief
Position upheld by ECHR

Benefits: Cassation Court, p. 520
Prior notice of
(1) whether the rapporteur has already written a report in favor or against cassation, in whole or in part; and
(2) the gist of the amicus' position.
Not very good for oral argument
No right to submit amended briefs

Right to Respond During Oral Arguments, p. 521
By way of oral argument or written note submitted for deliberations
Is this really meaningful?
Because French supreme court attorneys actually make oral arguments in less than one out of every hundred cases before the Cour de cassation and the Conseil d'Etat.

Further Problem: Work other than Rapporteur’s, p. 522
by the president or one of the other two assesseurs [supreme court judges] constituting the bench. The reviser re-examines the evidence and forms a view as to how the case should be decided. He may himself prepare another draft decision in the event of disagreement with the reporting judge. Once the draft decision has been revised, the case is listed for consideration at a preparatory sitting of the section, at which it will be discussed in the presence of the [CDG], who does not, however, take part in the vote on the draft.

Work other than Rapporteur’s (2)p. 522
Only when the draft decision has been adopted by the section will the file be forwarded to the [CDG] to enable him either to prepare his submissions or to ask for a fresh preparatory sitting to be convened or for the case to be transferred to a differently constituted court.

What about Counsel?
Remember from past classes that there are a very limited number of licenses for private lawyers to practice in these courts
At p. 522-523:
For a host of practical, professional, institutional, procedural, and cultural reasons, French supreme court attorneys almost never present oral arguments to begin with. For all intents and purposes, therefore, it is of almost no consequence for the ECHR to provoke an apparent strengthening of this oral practice without addressing the underlying reasons for which this oral practice is traditionally ignored in the first place.

Excluding from Deliberations
Rapporteur and CDG excluded from judicial discussion. P. 523
These designated reporters could agree or disagree with any one party
Author takes the position that this deprives the court of useful information and is not of benefit to the parties

Hitting them where it hurts
The ECHRs decisions strike at the very heart of the French internal vision of Due Process. 524-525
It could (eventually did) eliminate the advocate from within in the Cassation Court
It challenges the meritocratic institutional vision of the French (especially its internal vision of absolute dedication, honesty and professionalism that is beyond political influence). 525-526

The French View,Haim at p. 527
That said, notwithstanding the fact that the CDG is a member of the tribunal to which he presents his conclusions, would it not be preferable that his conclusions be obligatorily communicated to the parties, who could therefore respond to them?

The French view,Judge Thierry at p. 527
It is important to note that the ECHR abandons in its Voisine decision the reasoning of its Borgers decision, according to which, “by recommending in favor or against the appeal of an accused,” the Advocate General thereby “becomes his objective ally or opponent.” According to such reasoning, the Cour de cassation, when it rejects the appeal of an accused, would also become his objective opponent, which is simply absurd.
The Paradox of Competing Notions of Due Process
ECHR has a clear vision of what due process is
But it needs the national courts to enforce its judgments, Pp. 528-529
Note the dissenting view (and that dissents are almost unheard of in European appellate practice)
An unhealthy dynamic of resistance among national courts (a type judicial nationalism)

French Predicament and Response, p. 534
Problem: They are parties to the ECHR treaty
Response: willful and overt disobedience.
Such disobedience could have taken either the form of opting out of the European human rights system altogether or the form of explicitly defying the Borgers line of jurisprudence.

Possible Name Change for CDG, 538
To prevent any possible misunderstanding or ambiguity resulting from bad information or bad faith, one might consider modifying the title of the function. In the near future, the commissaire du gouvernement [i.e., the CDG] could thus be called the "commissaire-rapporteur." Two words would vaporize; a single one would replace them. The commissaire would survive thanks to his history, his independence, his impartiality and the service he has rendered, still renders and will continue to render on behalf of justice, the public and the law.

The Dual (two-track) response:537-541
Conseil d’État vs. Cour de Cassation,
ECHR: “In conclusion, there has been a violation of Article 6(1) of the Convention on account of the [CDG's] participation in the deliberations of the trial bench.”
The Conseil has taken the position that, because this holding states that the CDG's "participation in deliberations" violates the European Convention, the CDG can continue to attend deliberations, so long as he does not "participate" in them by speaking! P. 538.

The “Appearance” problem
It is for this reason that the Court has held that regardless of the acknowledged objectivity of the Advocate-General or his equivalent, that officer, in recommending that an appeal on points of law should be allowed or dismissed, became objectively speaking the ally or opponent of one of the parties and that his presence at the deliberations afforded him, if only to outward appearances, an additional opportunity to bolster his submissions in private, without fear of contradiction. P. 539

The Cour de Cassation
To begin with, the rapporteur will no longer grant the advocate general privileged access to her work product. To the contrary, neither the advocate general nor the parties will receive copies of the rapporteur's draft judicial decisions or of the second part of her report (i.e., her personal opinion). Instead, both the advocate general and the parties will obtain the rest of her report well in advance of oral arguments. In other words, the parties will receive this information early enough to fashion a meaningful response. P. 540.

Rapporteur’s Work, 540
Traditionally, ... The first, which was read aloud at the opening of oral arguments, contained a barebones summary of the parties' positions (the “rapport objectif”); the second consisted of the rapporteur's all-important, yet externally unavailable, opinion (her “avis”).

Rapporteur Now, 540-541
Now that the rapport objectif is fully accessible to the litigants in a timely fashion and represents the sum total of what the advocate general will receive from the rapporteur, this "objective" section of the report has been significantly expanded.
Note that now it becomes public, even via email (p. 541)

Part 7. Evaluating the Response, p. 541
The Duality of response, i.e., the division between the Cour de Cassation and the Conceil D’Etat has created a dual track.
Cassation has complied more fully, Conceil D’Etat has not
But, the ECHR seems to be cutting the Conceil some slack. Why might that be?

Conceil d’Etat, 542-543
ECHR: "As to the [CDG], the Court equally accepts that it is undisputed that his role is not that of a State counsel's office and that it is a sui generis institution peculiar to the organisation of administrative-court proceedings in France.”
Parties get “gist” of arguments, and he is not allowed to participate in the deliberations, though they are present

Four criticisms of Conceil D’Etat
First, litigants will continue to challenge their proceedings. P. 544
Second, there is still lack of clarity under the ECHR decisions. P. 544 (but note that this can be good or bad).
Third, ECHR has been patient so far, will it last?
Fourth, there is now the accusation of impropriety, adopted by many litigants and the practicing bar, which might make continued resistance untenable

Really? … The Ironies of the challenge
For all of the reasons explained by Harold Koh, disobedience —and, I might add, dubious or disingenuous satisfaction— of international law norms is a highly unpleasant affair for everyone involved. 545
The members of the Conseil d'Etat have long been quite proud of their status as vigilant defenders of civil liberties, and it is, therefore, particularly jarring for them to defend against the charge of systematically violating international human rights norms.

Cassation Court Transparency
The newfound accessibility of the rapporteur's "objective report" represents a major opening of the judicial universe to the general public, which can now observe what issues are considered important to the judiciary. P. 546.
Is this desirable? In other words, should parties, lawyers, or the general public view deliberations?

Arretiste: Diviner of Jurisprudential Meaning
Customarily, it was the French academic who functioned as the broker of French judicial knowledge. The job of the arretiste —the doctrinal (academic) writer who commented on major judicial decisions (arrets) in the French case reporters— consisted precisely of analyzing and explaining the famously brief and opaque judgments of the French judiciary. Thus, it was the academic, not the court itself, who provided primary access to the logic of the French judicial decision. P. 547

But now… p. 547
Now the court itself, through the rapporteur’s report, provides public information
Transparency and compliance with contemporary and evolving notions of Due Process
Prestige? Vis-à-vis the Conceil D’Etat? 548.

The Ministere Public
Ministere public. The advocate general, for hundreds of years a privileged player in the French internal judicial debates, has been reduced to a mundane discursive player more akin to a party than to a judicial magistrate. As such, the advocate general no longer receives privileged access to the rapporteur's key work product: her avis and draft judgment(s).

Who is the Ministere Public?
Reports to Ministry of Justice (though entitled to independence)
judicial education at ENM (the national judge school in Bordeaux) and his professional experience as a repeat player, the advocate general no longer possesses or develops any form of distinctive professional knowledge that he can bring to the judicial decisionmaking process. P. 550

Clear Jurisprudence or “Gouvernement des juges”
Consequently, publication of the reports changes the status of the public's knowledge of French judicial decisions; now that internal knowledge is publicly available, only an incompetent attorney would not put this jurisprudential information at the very center of his own legal analyses. P. 553-554
Jurisprudence? Judicial Doctrine? Zut alors!!!!!

Poor Academics?
Now that such knowledge is overtly formulated and disseminated by the sitting members of the judiciary, the academic necessarily becomes yet another passive judicial observer. The argumentative and normative status of la doctrine will likely decline accordingly. P. 555

Named judges?
This publication of individually signed judicial analyses
For the first time, individual judges will routinely have the ability to appeal directly to people, interests, and standards beyond the Cour.
could, therefore, entail a certain loss in French judicial independence —with individual notoriety and influence comes external critique and pressure. 556.

Problems at Cassation Court: Worst of Both Worlds?
Less argument without the challenge of the procureur, 558
It intentionally refuses access to precisely the information that meaningful judicial accountability and public understanding might require, i.e., a serious account of the —potentially different— means by which the various members of the court approached, considered, and ultimately resolved the difficult issues that underlie the case at bar. P. 558

Conclusion: Abandonment of Republican/Institutional Limits
The danger, of course, lies in the possibility that the Cour de cassation's reforms grant a new argumentative prominence —and thus normative dominance— to the Cour and its judges (precisely what the traditional French system was designed to avoid), without counterbalancing or taming this new judicial power with sufficiently effective individual, public, and argumentative judicial accountability. P. 574

Problems, 574
In other words, these reforms may undermine the existing republican and institutional bases of French judicial control and legitimacy without going far enough in the direction of the democratic-argumentative model to make up for the loss.

French Practice and the ECJ
The European Court of Justice, ultimate arbiter as to EU law, was really based on a French cassation model
BUT, note that the ECJ has been modernizing and going to a more open process by announcing vote counts and even allowing dissents in modern times.

Modern Notions of Judicial Procedure
The author might call it unwanted “homogenization” of procedure
But perhaps it is an evolving consensus about due process and individual rights which requires a new type of procedure
For future reference: do modern democracies need judicial enforcement of individual constitutional rights?

D. The Headscarf Constroversy in France:
1. Introduction, 451-57
2. The Meaning of Constitutional Citizenship, 457-75

The Law

“In public schools, the wearing of symbols or clothing by which students conspicuously [ostensiblement] manifest a religious appearance is forbidden. Internal regulations state that the initiation of disciplinary proceedings must be preceded by a dialogue with the student.”

Note the Freeman case here in Fl.

Freeman vs. Fla. Dept. of Hway Sfty & Motor Vehicles, 924 So.2d 48 (Fla. DCA, 5^th Dist 2006)Ruling that woman did not have freedom of religion rights guaranteed by Florida statute, Fla. Or U.S. constitutions, violated when DMV revoked here license for her refusal to be photographed without head covering (which completely covered her face, except her eyes).

Fla. Sup. Ct. refused to hear the case,
940 So.2d. 1124 (Fla. Sup. Ct. 2006).

Note ECHR Litigation

On 10 November 2005 the Grand Chamber of the European Court of Human Rights held that the prohibition against wearing headscarves on Turkish university premises did not violate Article 9 of the European Convention on Human Rights on freedom of thought, conscience and religion

ECtHR 10 Nov. 2005, Application No. 44774/98, Sahin v. Turkey, Grand Chamber judgment

British Cases

The House of Lords ruled in favor of a school that wanted to ban veils in 1984 or 85

In march of 2007, the Ministry of Education in the UK issued regulations about banning veils

Vote for the French

National Assembly (February 10, 2004),
494-36

Senate (March 3, 2004),
276-20

NO Votes total 56 in both chambers

Remember that a law cannot be reviewed by the Constitutional Council unless review is requested by 60 parlamentarians, or by the President, Prime Minister or heads of each legislative chamber.

Stasi Commission, 2003

President Chirac appointed a commission to study laicite, secularism

Chirac then supported legislation because education is one area in which legislative initiative is required by the 1958 Constitution

Rejected

that laïcité mandates “a militant atheism” or that

laïcité is incompatible with Islam

Stasi Commission

the report states that just as the state must abandon all authority within matters of personal conscience and spirituality, so must religion “renounce [its] political dimension.”

“Laïcité is incompatible with any conception of religion that hopes to rule over ... the social system or the political order.”

This separation is mutually beneficial to both religion and the state, as well as providing an equal footing to all individual citizens.

Other Religious Symbols

banned symbols:
Jewish kippah (skullcap) or a large cross

“discreet” symbols:
small crosses, Jewish stars of David, or Muslim hands of Fatima would be permitted.

– Comm'n de Reflexion sur l'Application du Principe de Laïcite dans la Republique, Rapport au President de la Republique, 4.2.2.1, at 58-59 (Dec. 11, 2003) [hereinafter Stasi Commission Report], available at http://www.laic.info/Members/webmestre/Folder.2003-09-11.4517/rapport-stasi.pdf (last visited Jan. 17, 2004).

Hand/Eye of Fatima or Hand of Miriam

The Khamsa: An alternative Islamic name for this charm is the Hand of Fatima or Eye of Fatima, in reference to Fatima Zahra, the daughter of Muhammed. An alternative Jewish name for it is the Hand of Miriam, in reference to the sister of Moses and Aaron as well as the Hamesh Hand. It serves as an ancient talismanic way of averting and getting protection from the evil eye, or more generally of providing a "protecting hand" or "Hand of God".

Note the complex politics of it all

conservatives vs. libertarians

Paternalistic liberals vs. free choice liberals

Anti-subordination of women vs. empowerment in displaying your religious views/identity

But the whole thing was provoked by the article in La Liberation and the media storm that followed it

The Start of the Controversy

October 1989, when the principal of a majority-Muslim middle school in the Parisian suburb of Creil suspended three Muslim girls for wearing their headscarves in the public school classroom.

Agreement fell-through and the girls were again expelled

Mme. Mitterand and Lionel Jospin, Minister of Education (later Prime Minister and Presidential Candidate) also spoke in favor of the girls’ right to wear the scarves.

Politics

Note that Lionel Jospin and Mme. Mitterand express their views during the presidency of Francois Mitterand, the socialist who was President from 1981 to 1995

But the new law is passed by conservative Jacques Chirac and his government, which succeeded Mitterand’s, in 1995 and did not seek reelection after his term expired in May of 2007.

But note

Jospin’s own Socialist Party members were highly critical of his view

Chirac’s conservatives were more supportive of his view.

Still, Jospin was the minister, and he could refer the matter to the Conseil D’Etat for an administrative opinion

1989: Conseil d’État,
Section de l’interieur

The Conseil ruled, on November 27, 1989, that wearing religious symbols to school is permissible as long as those symbols are not so “ostentatious” [ostentatoire] as to

“constitute an act of intimidation, provocation, proselytising, or propaganda; threaten the dignity and freedom of students or other members of the educational community[;]” or disrupt the school’s normal functioning.

“Ostentatoire”: Discretion

Council of State ruled in favor of headscarf-wearing students in 41 of 49 cases between 1992-1999

Jospin and Bayrou Circulars:
Ministry of Education twice issued administrative circulars [letters expressing the views of the ministry, binding on its employees]

Ministry Circulars

on exercises of discretion by principals on determining if a symbol was appropriate “discrete” or unacceptably “ostentatoire”

Bayrou reiterated the discretion

Minister Bayrou

Bayrou was a candidate for the French Presidency for the Christian-Democrat center

He is a very strong proponent of laicite and it was included in his platform

Bayrou Circular

“so ostentatious that their meaning is precisely to separate certain students from the rules of the communal life of the school. Such symbols are, in and of themselves, elements of proselytism.”

The circular’s effect was generally to narrow the circumstances under which a headscarf would be considered permissible.

Bayrou Circular vs. Council of State

The circular did not have the authority to define which symbols schools should consider ostentatoire.

The Conseil d’Etat ruled that wearing a headscarf is not automatically ostentatoire and that expulsion is permissible only if the student’s action constitutes a threat to public order over and above the mere wearing of the headscarf.

Context: Is there a homogeneous French People or Culture?

Most contemporary historians and sociologists would likely say “No,” certainly to the people question

Waves of migration have long existed, as well as pockets of local cultures (like the Basques in France)

But what about political or citizenship culture?

France: Demographics

62 Million

Roman Catholic 83%-88%, Protestant 2%, Jewish 1%, Muslim 5%-10%, unaffiliated 4%

Language

Primary: French

Regional: Provencal, Breton, Alsatian, Corsican, Catalan, Basque, Flemish, overseas, Creole

Brubaker

“Constant” idea of homogeneous citizenship

“Ideological and political function as a way of defining participation in French culture and civic life”

Strong centralized state had a primary role in the formation of citizenship

Countered

Variable forms of government over centuries after the revolution

Evolving form of citizenship that accounted for important political innovations

Particular note that immigration by cultural minorities is not a 20^th century phenomenon and that the state spent considerable resources in the 19^th century

Prior to 1960s and 80s north African migrations

“Republican Citizenship”

French language (any language)?

Homogeneous “culture”?

Legal, political or constitutional culture?

Some other type of culture?

Third-Republic starts the modern “ideal” of republican citizenship (and it has been continued by the 4th and 5th Republics.

Birth-right citizenship is a choice, not automatic for those born on French soil to foreigners

Laïcité: Laity

laïcité, that became the official line when the separation of church and state was mandated. This secularism demanded that religion remain a wholly private matter, that it not intrude into public debate or public view in any way.

France abandons state religion by law in the early 1900s

Note the heavy emphasis on public education in the Republican system

But note the Social Contract

General will gives the state legitimacy

Cumulative vs. General Will

Subordination of the individual and of groups … to the larger nation

Brubaker: Citizens and “Foreigners”

Note the importance of
Public Education

An entitlement

Controlled by the state, and financed by it

Napoleon’s system of Grandes Ecoles, produces the French elites, including members of the Conseil D’Etat

Chirac for example, a graduate both of the ENA and the Paris IPS

Sarkozy is the first president not to have graduated from the ENA

Colonial Immigration

MacMaster argues, however, that neither racism against North Africans nor Maghrebi immigration to France began with the Algerian War of Independence. On the contrary, Algerians were targets of racism significantly before the War of Independence, and between the World Wars they formed the largest group of colonial workers living in Europe.

Group Rights v Individual Rights

Constitutional democracies struggle with this one

Think about our discourse on “race” and “racism” in the United States

Slavery, Jim Crow and the Civil Rights Acts

Land dispossession in the U.S. Southwest following the Treaty of Guadalupe Hidalgo

Language

Individual, Liberal
Constitutional Citizenship

The Conseil d’Etat has stated repeatedly that group or collective rights are incompatible with the French Constitution, which instead bestows rights solely upon individuals.

So-called “Muslim” identity is not homogeneous there are fundamentalists, but there are also shared constitutional values

Discourse on rights

Common conversation

The Faith-Based Councils

On the other hand, the French government made a gesture toward recognizing Muslims as a group when it established the French Council of the Muslim Faith (CFCM or Conseil Francais du Culte Musulman) in April 2003. The CFCM serves as a counterpart to the long-established Catholic, Protestant, and Jewish organizations that function as official conduits between the state and their respective communities, so in one sense the new group’s creation is unremarkable.

Affair Dreyfus v. Affaire de Voiles

Note the role of the Council of State as limiting governmental overreaching

Different responses from the political establishment

Different roles/responses from the courts

Note that there is a legal approach to the promotion of a common “cultural” citizenship.

But it was Minister Jospin after all who summoned the Council of State

E. The Headscarf Controversy in France: The Conseil D'Etat and its Functions, 475-485

French Courts Graphic

Jurisdiction of the
Constitutional Council:

1) Mandatory or automatic when it is an organic act (all organic acts were passed by December 1958).

2) Discretionary as to any other law upon request by

(a) the President,

(b) the Prime Minister,

(d) any 60 parliamentarians (after 1974 reform)

(e) individual reference since March 2010 only

Effect of Council Decisions

The decisions of the Council are binding on the public authorities and all administrative and judicial authorities. No appeal lies against them. The legal force of the decision attaches not only to the judgment itself but also to the necessary reasons in support of it. However, the Constitutional Council does allow appeals on matters of material error.

Decisions on conformity lead to the total or partial censure of the law but not its annulment, since they are handed down before the legal act which is required for implementation (promulgation, ratification).

Divisions of the Conseil D’Etat

Four Advisory Sections

Interior

Finance

Public Works

Social Affairs

Judicial Section (Section du Contentieux)
(over 200 justices in ten subsections or panels).

Council of State Decisions

Can be overturned by legislation, unlike those of the Constitutional Council, but

Why can they not be overruled by the President of the Republic and the rest of the administration?

Council of State as Advisor

In most instances, for example, bills proposed before the legislature and decrees promulgated by the executive branch must be submitted to the Conseil so that it can recommend changes.

Under some circumstances, the Conseil’s suggestions are considered binding on the government, while in other situations they are not.

Most important for our discussion is the provision that the government may call on the Conseil d’Etat to advise it on a matter of public administration. It was this provision that Jospin exercised in November 1989.

Council of State as Court

In its judicial function, the Conseil d’Etat’s word is always considered definitive, not merely one opinion that the government must take into consideration. Though it is itself a branch of the administration, the Conseil is more than simply a learned advisor when it is asked to resolve a dispute over the actions of a state authority.

Nevertheless, as is true of all of France’s judicial system, the Conseil d’Etat’s caselaw is not considered a source of law, since any such judicial authority would usurp the legislature’s exclusive right to make law, though caselaw is of “persuasive value.”

Jurisdiction of the Conseil D'Etat Section du Contentieux

Cassation, special review on issues of law, on motion to quash lower administrative courts' ruling;

Original trial jurisdiction on the constitutionality or underlying legality of administrative action;

Reference Procedure: lower level administrative court may request a non-binding, but usually-followed decision, on novel issues of law.

Why/How was it created

Created by Napoleon in 1799

Purposefully administrative rather than “ordinary” judiciary

Key to the centralized state

Requires “perception of impartiality”

“Democratically-responsible” because it is the permanent bureaucracy?

Citizen Complaints

Conseil given power to decide matters against the administration in 1872

Conseil d’Etat declared that private citizens no longer had to go through a governmental administrator in order to bring a claim before the Conseil.

Citizens were empowered to bring their own complaints against the administration before the court rather than first having to find an ally within the government.

One of four corps d’Etat

the most elite branches of the French civil service.

National Audit Office (Cour des Comptes),

Inspectorate of Finance (Inspection Generale des Finances)

Foreign Service (Quai d’Orsay).

Membership in the Council of State

At the end of their tenure at the ENA, graduates are ranked according to their final examination marks and overall performance, and the Conseil d’Etat, Cour des Comptes, and Inspection Generale des Finances attract the highest scorers.

Lower courts cast a “wider” net, and so the council is more loyal to the centralized bureaucracy

Membership

Total of about 300

One third lent out to ministries or private industry

One third in the four advisory sections

One third in the Section du Contentieux

Promotion mostly based on seniority in order to ensure independence

The French Administrative Courts

The Council of State: Contentious Sec.

Members of the Contentious Section of the Council of State

Contentious Section

Decisions may be made by a single division

But usually rulings are made at least two or more sections

Commissaire du Gouvernement (now)
“following his conscience,” as the Conseil d’Etat’s official website puts it, as to what he believes the Conseil should rule. He then does not take part in the deliberation over the Conseil’s eventual ruling.

Decisions

Given to the parties and others who ask

Announced in public (and now published in their website)

No dissenting opinions published

Conflict of Interest?

In its advisory function, one of the Conseil’s roles is to participate in drafting legislation and formulating administrative policy, while in its

judicial function, it passes judgment on the fairness and efficacy of laws that concern the behavior of the state and the state’s various arms.

Conflict of Interest?

This could theoretically lead to a conflict of interest, or an appearance of a conflict, since the Conseil would be evaluating laws and regulations that it had a hand in constructing.

In practice, the sections that adjudicate judicial matters remain segregated from the sections that perform the Conseil’s purely advisory role, so the problem of an administrative body judging its own handiwork is considered moot.

Conflict or Legitimacy?

“The Conseil d’Etat commands general respect of the administrator in action because he knows his judges are fully aware of the special problems besetting public administration. When called to account by the Conseil d’Etat ... he has to acknowledge that his judges are not strangers to the administrative process; they are not amateurs throwing legalistic spanners into the administrative works, which is how British ministers have sometimes tended to regard their High Court judges. On the contrary, the French official is well aware that his judges are peculiarly expert in the field of administration.”

Lack of Enforcement Power

It is a voluntary compliance system for the executive branch

the Conseil’s lack of enforcement power renders it dependent on the rest of the bureaucracy’s continuing perception of its impartiality. *** If the Conseil is respected only because it is seen to conform to the same rules of the game as those it judges, then it would seem to be confined to a very narrow sort of purview over the administration.

Legitimacy

The non-political nature of the council and its decision made their views more likely to be followed by the bureaucracy

But they left enough discretion and leeway to create some uncertainty

Or perhaps they gave the political process a chance to catch up

1989: Conseil d’État,
Section de l’interieur

The Conseil ruled, on November 27, 1989, that wearing religious symbols to school is permissible as long as those symbols are not so “ostentatious” [ostentatoire] as to

“Ostentatoire”: Discretion

Council of State ruled in favor of headscarf-wearing students in 41 of 49 cases between 1992-1999

Jospin and Bayrou Circulars:
Ministry of Education twice issued administrative circulars [letters expressing the views of the ministry, binding on its employees]

Ministry Circulars

on exercises of discretion by principals on determining if a symbol was appropriate “discrete” or unacceptably “ostentatoire”

Bayrou reiterated the discretion

F. The Headscarf Controversy in France: The Conseil D'Etat's Decision and its Implications, 485-504

And the case goes to the Council of State, by way of a ministerial request. Education Minister Jospin made the request for an advisory opinion (an Avis) from the Conseil d'Etat's Section of the Interior, not from the Section du Contentieux. You may find the text, in French, in the Council's website:

http://www.conseil-etat.fr/ce/missio/index_mi_cg03_01.shtml

De facto stare decisis:

We will touch on this in the materials for next week, however, when acting as a court, the Counceil's decisions are certainly binding on the parties and there certain judicial enforcement mechanisms. Its jurisprudence, i.e., those opinions issued in the context of administrative litigation in the Section du Contentieux, are only binding externally on a de facto system that is much more aggressive than that of the ordinary courts.

The girls are suspended by the school principal and the matter is publicized

Education Minister Jospin submits a question to the Council of State Advisory sections seeking an opinion

The Council issues its decision

Jospin and later new Education Minister Bayrou, issue Circulars, administrative letters, on how the decision is to be enforced

Questions presented

first, is wearing religious symbols in school compatible with the principle of laïcité;

second, if so, under what conditions is regulation of such wearing permissible; and

third, could the refusal to follow such regulations result in the expulsion of the offending student from the school?

Legal Bases of 1989 Decision
Constitutional Principles

Surprisingly broad

Basic “constitutional principles” from sources well-beyond the 1958 constitution

Declaration of the Rights of Man and of the Citizen

the Preamble to the Constitution of 1946 (Fourth Republic),

the Constitution of 1958 (Fifth Republic), and

the European Human Rights Convention, enacted in 1950.

Law: 1789 Declaration of the Rights of Man and the Citizen, 587-588

Article 10. No one must be disturbed because of his opinions, even in religious matters, provided their expression does not trouble the public order established by law.

Article 11. The free expression of thought and opinions is one of the most precious rights of man: thus every citizen may freely speak, write, and print, subject to accountability for abuse of this freedom in the cases determined by law.

Declaration articles 3-4

3. The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.

4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

Legal Bases of 1989 Decision
Laws

Laws: The historical sweep of the French laws cited includes the

1882 law making primary school mandatory, the

1905 separation of church and state, and

several provisions regarding education, the most recent being the immigration law of August 2, 1989.

Education Laws

The Conseil quotes the law of July 11, 1975, and its formulation of the importance of education within the French state: academic education allows a child “to acquire a culture [and] prepares him for a professional life and for the exercise of his responsibilities as a man and as a citizen.”

Education Laws

*** [the] education law of July 10, 1989, which invokes the guarantee that education will help pupils to “develop their personalities ... to make themselves a part of social and professional life, to exercise their citizenship ... .” …

law of August 2, 1989, stating that schools must imbue their students with “respect for the individual, for his origins, and for his differences.”

Entitlement to Public Education

the right to have access to an education is guaranteed to those living within French borders regardless of their religion; that the freedom of religion and of manifesting that religion outwardly are protected in public and in private unless they present a threat to public health, security, or order, or the liberties of others; that parents have the right to ensure that their children receive an education compatible with their religious beliefs; and that the state must promote understanding and tolerance among “all racial and religious groups.”

Laïcité and Education

the Conseil contends that the principle of laïcité not only permits but, in fact, requires the schools to respect the free expression of religion.

Furthermore, the Conseil contends that the principle of laïcité not only permits but, in fact, requires the schools to respect the free expression of religion.

This conception of the principle of laïcité goes beyond the total freedom of inward personal conscience that the principle had always represented to its supporters and its enemies alike.

Limits to Religious Expression?

US: “establishment” vs. “free exercise”

“promotion” vs. “toleration”

wearing religious garb in a school “is not in itself incompatible with the principle of laïcité” but must not “constitute an act of pressure, provocation, proselytism, or propaganda” that impinges on the freedom of the other students or impedes the school’s educational mission.

Note the Criticism

reaction to the council’s statement that religious practices had to be respected within laicite

Legislators in particular decried the fall of the “separation of church and state” and

That it allowed the promotion of “ferocious fundamentalism”

“State” interest/obligation?

French society, with its shared culture and values. This is a distinctive feature of French law —that the state’s interest in instilling culture in its citizens is considered an ever-present party to any conflict over conduct in the public schools. This is no mere civic education in the Anglo-American vein. Rather, in France, the state, not the parent, is seen to have the ultimate responsibility to educate a child.

The Question of “Assimilation”

There is a general assumption that Muslim immigrants and their descendants were welcome in the schools which is belied by their experience

But there is also the general question of what we mean by “integration” or “assimilation” of non-normative groups

Consider, for example, that Mexicans were a majority in most of what is today the U.S. southwest after the Mexican-American war.

But students may be expelled

Since a parent may provide the student’s mandatory education, there is no absolute right not to be expelled from a public school, states the Conseil.

“Disruption” against fellow students’ rights is the standard

Ministerial discretion is emphasized (hence the circulaires by Jospin and Bayrou)

But what is the larger debate?

Author also points to state obligation to control education

Larger debate over how to educate “citizens”

Reponse: Dialogue Required

Jospin’s circulaire: The first directive that Jospin gives to the educational establishment is that as soon as a problem arises, school officials should immediately engage in dialogue with the student wearing the headscarf and with her parents. The officials should impress upon the student and parents that it would be in the interest of both the student and school if she ceased wearing the headscarf.

Intent

This attention to intention rather than outcome (whether the wearer of the headscarf wanted to convey a proselytizing message versus whether anyone at the school actually felt preached to),

Also, are parents forcing it on children or not?

Religious vs. Political expression?

Political vs. Religious Expression

Political “provocation” not tolerated in French schools, but political expression more permissible than religious expression?

Jospin thinks not

“Provocation” and “Proselytizing” are forbidden

Teachers and other officials are completely prevented from doing things that students might be permitted to do

The 1992 Decision

Note that this is a traditional party-filed administrative case in the Contentious Section of the council

The 1992 decision breaks no new theoretical ground, nor is it intended to do so. Rather, it very briefly states that the regulation in place at the school in question is illegal due to “the generality of its terms.”

The decision of the Paris tribunal is overturned, the college regulation annulled, and the headscarf-wearing students returned to school.

1992 Decision

Follows the recommendation of the CDG

The judicial section follows the basic principle that student have a right to wear religious symbols and may not be expelled or suspended unless a specific exception applies

The 1995 Case

Also an administrative court case brought by the parents

The school, this time in Lyon, had told two sisters that their headscarves prevented them from fully participating in physical education and that therefore the students must remove their scarves.

The 1995 Case

Note that the number of students wearing hijab had increased rather substantially

The Conseil ruled that the school’s regulation was not unduly restrictive and did not have the effect of outlawing headscarves altogether, as the students and their parents had claimed. Therefore, the students’ refusal to remove their scarves constituted an interference with the normal functioning of their education, a disruptive violation of the school’s order. The girls’ expulsion was upheld.

Bayrou Circular

“so ostentatious that their meaning is precisely to separate certain students from the rules of the communal life of the school. Such symbols are, in and of themselves, elements of proselytism.”

The circular’s effect was generally to narrow the circumstances under which a headscarf would be considered permissible.

Bayrou Circular vs. Council of State

The circular did not have the authority to define which symbols schools should consider ostentatoire.

ECHR Law

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

ECHR Law

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

ECHR Law

Past ECHR decisions indicate that France’s new laïcité law may indeed be found to violate the Convention for the Protection of Human Rights and Fundamental Freedoms. The following is a brief introduction to the ECHR caselaw that may be relevant to the laïcité law.

ECHR Law

In Kokkinakis v. Greece, the court asserted: “While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one’s] religion’. Bearing witness in words and deeds is bound up with the existence of religious convictions.” Here, the Court affirms the right to express one’s religion in public, already mentioned explicitly in the Convention.

The Law

Vote for the French

National Assembly (February 10, 2004),
494-36

Senate (March 3, 2004),
276-20

NO Votes total 56 in both chambers

Remember that a law cannot be reviewed by the Constitutional Council unless review is requested by 60 parlamentarians, or by the President, Prime Minister or heads of each legislative chamber.

The 2004 Law

The result of reaction to the Council of State Rulings, and the Stasi Commission Report

Challenge to ECHR filed prior to law resulted in ruling in favor of a ban on 5 December 2008

Litigation by Sikhs (over license photos without their headwear) produced a decision by Council of State in 5 December 2007 (they lost, and the ban was upheld)

2008 Amendment to the French Constitution

Counseil d’Etat and Cour de Cassation may make references to the Constitutional Council

Organic law became effective on March 1, 2010

In October of 2010 the Constitutional Council ruled that a law banning burqas or niqabs (voile intégrale) in public spaces was constitutionally valid, but that the prohibition cold not be extended to private places of religious observance open to the public

Comparative Law Notes 10