Comparative Law

Professor Pedro A. Malavet

Class Notes Part Ten

(Last Updated: November 28, 2007)

Chapter 11: The French Legal System: A Critical View, 483-629

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: p. 484

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:

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 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.

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

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 France pp. 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 France pp. 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.

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 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, p. 487
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

Jurisdiction of the Constitutional Council (p. 489)
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)

Procedure: p. 489
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. P. 489.

Effect of Council Decisions, p. 489-90
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).

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).
The French Court(s) System(s)? Pp. 493-575 (n. 1 at p. 493)

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. P. 493
Horrified by what we learn about it? (Perhaps shocked by the difference?) p. 494
Under international attack using European Convention on Human Rights

Judicial Practice
France: A civil service, collegial system of lifetime employment, meritocratic retention and hierarchical promotion and supervision, 495-496
United States: A more democratic system that polices itself. (Subject to separation of powers, which the author manages to ignore), 496

Basic French Approach, 496
(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.

Are judicial opinions “Law”?
Not officially in France: As a result their decisions lack the “force and status of law” p. 496
In the United States: Common law, stare decisis, law of the case “Explicit” authority? Where?

Judicial Decisions: Cour de Cassation, an example (p. 497):
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].

Critiques of the French System, p. 497
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, p. 498

Rapporteur, 498
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, p. 498
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 p. 498
At oral arguments, the rapporteur opens the proceedings by reading her summary of the procedural history and the claims of the parties. Next, the attorneys can choose to present oral arguments. Finally, the judicial amicus presents his own independent opinion (conclusions). 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,” 499
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. 499

Sources of Law, p. 501
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, 502
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, p. 503
In any case of importance, the French actually publish an academic essay 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 or Counselors, p. 504 “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?
Ranking in School and Exams determines future posts, 504-05
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 fewer than 100 licenses for these courts)

The new parlementaires?
These elites are considered trustworthy because they are controlled by powerful educational, meritocratic, and institutional means.
Hierarchy of the civil service is a major source of control

Judicial Review and Constitutionalism:
A Critical View of the French System, 493-541

The French Court(s) System(s)? Pp. 493-575 (n. 1 at p. 493)
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. P. 493
Horrified by what we learn about it? (Perhaps shocked by the difference?) p. 494
Under international attack using European Convention on Human Rights

Judicial Practice
France: A civil service, collegial system of lifetime employment, meritocratic retention and hierarchical promotion and supervision, 495-496
United States: A more democratic system that polices itself. (Subject to separation of powers, which the author manages to ignore), 496

Basic French Approach, 496
(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.

Are judicial opinions “Law”?
Not officially in France: As a result their decisions lack the “force and status of law” p. 496
In the United States: Common law, stare decisis, law of the case “Explicit” authority? Where?

Judicial Decisions: Cour de Cassation, an example (p. 497):
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].

Critiques of the French System, p. 497
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, p. 498

Rapporteur, 498
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, p. 498
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 p. 498
At oral arguments, the rapporteur opens the proceedings by reading her summary of the procedural history and the claims of the parties. Next, the attorneys can choose to present oral arguments. Finally, the judicial amicus presents his own independent opinion (conclusions). 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,” 499
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. 499

Sources of Law, p. 501
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, 502
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, p. 503
In any case of importance, the French actually publish an academic essay 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 or Counselors, p. 504 “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?

Ranking in School and Exams determines future posts, 504-05
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 fewer than 100 licenses for these courts)

The new parlementaires?
These elites are considered trustworthy because they are controlled by powerful educational, meritocratic, and institutional means.
Hierarchy of the civil service is a major source of control

ECHR, Old View: Delcourt v. Belgium, p. 507
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.
Would you like the Solicitor General to have a similar position?

ECHR attacks!: Borgers v. Belgium , p. 507-509
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 61 requires that the rights of the defence and the principle of equality of arms be respected.
Lacks notice, and opportunity to be heard

Vermeulen v. Belgium, p. 509-510
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? 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.

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
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?

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 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)

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.

The Independent Official, 531
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, 532
 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, 541-58, 572-575

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.

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).

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.

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
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?

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 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?

The Headscarf Controversy in France, 576-629

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.

Judicial Review and Constitutionalism: A Critical View of the French System
The Headscarf controversy, pp. 576 et seq.

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.”
P. 576

Note the Freeman case here in Fl.
Freeman vs. Fla. Dept. of Hway Sfty & Motor Vehicles, 924 So.2d 48 (Fla. DCA, 5th 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, p. 576
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 1958 Constitution
Rejected
that laïcité mandates “a militant atheism” or that
laïcité is incompatible with Islam

Stasi Commission, 577
 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 politics of it all
At page 577-578, can you see
conservatives vs. libertarians
Paternalistic liberals vs. free choice liberals
Anti-subordination of women vs. empowerment in displaying your religious views/identity

The Start of the Controversy, p. 578-79
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 member of the Constitutional Council) 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 is not seeking reelection after his term expires 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, 579

November 27, 1989, Conseil d’État, Section de l’interieur, p. 579
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
Ministry of Education twice issued administrative circulars [letters expressing the views of the ministry binding on its employees] on exercises of discretion by principals on determining if a symbol was appropriate “discrete” or unacceptably “ostentatoire”
P. 579

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 is included in his platform

Council of State
Indeed, even after the circular’s release, 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.
At page 580, note that the Conseil d’Etat ruled in favor of 41 of 49 headscarf-wearing students between 1992 and 1999.

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?

Laïcité: Laity, 585
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
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.

Note the importance of Public Education
An entitlement
Controlled by the state, and financed by it
Napoleon’s system of Grandes Ecoles, p. 589, produces the French elites, including members of the Conseil D’Etat
Chirac for example, is a graduate both of the ENA and the Paris IPS.

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. P. 590-591

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.

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 Violes
Different responses from the political establishment
Different roles/responses from the courts

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,
(c) the Presidents of the Senate or the Assembly, or
(d) any 60 parliamentarians (after 1974 reform)

Effect of Council Decisions, p.
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 100 justices in ten subsections or panels).

Jurisdiction of the Conseil D'Etat Section du Contentieux
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.

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. P. 602

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.” p. 602

Citizen Complaints
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. P. 603-604

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. P. 604
Lower courts cast a “wider” net, and so the council is more loyal to the centralized bureaucracy, p. 605

Membership of the Council of State
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

Conflict of Interest? P. 606
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? 606
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? Quote at 606
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, p. 607
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.

The Process in the Decision, pp. 608-609
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, p. 610
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, p. 610
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.
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.

Legal Sources, p. 611
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.” *** [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, p. 611
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, p. 612
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?
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. P. 612-613

Note the Criticism
At page 613 there is a discussion of 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. P. 614

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. P. 616

Reponse: Dialogue
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. P. 618

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), 618-619
Religious vs. Political expression?, 619

The 1992 Decision, 622-623
Note that this is a traditional party-filed administrative case
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.

The 1995 Case, p. 624
Also an administrative case
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, p. 624
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.

The 2004 Law
The result of reaction to the Council of State Rulings, and the Stasi Commission Report
Most likely to be challenged in the ECHR and expulsions in the Council of State (but likely to loose)
Litigation is ongoing by Sikhs (over license photos without their headwear)

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This is the end!