The Republic of France

Abstract

This chapter looks at French judicial review. From the French Revolution of 1789 up until the adoption in 1958 of the Constitution of the Fifth Republic, the Republic of France refused to tolerate any kind of judicial review of the constitutionality of legislation. The traditional French view was that judicial power is oligarchic, opposed to progressive causes, and should be contained as much as possible. The 1958 French Constitution provides an elaborate system of checks and balances with its bicameral legislature consisting of the National Assembly and the Senate; with its division of the executive power between the president and the prime minister (who can be from opposite political parties); and with its increasing focus on decentralization. As such, just as federalism umpiring helped to give rise to judicial review in the United States, Canada, Australia, Switzerland, and India, so too did separation of powers umpiring help to give rise to judicial review in France. Judicial review in France was hugely expanded in 1971, for rights from wrongs reasons; in 1974, for insurance and commitment reasons; and in 2008, for borrowing reasons.