Study guide: Constitutional Law and the State

📋 Course Outline

1. Constitutional Law and the Constitution
2. The Constitution’s Incompleteness
3. Constitutional Text and Political Practice
4. Political Authority and Constitutional Limits
5. Constitutional Law as Judicial Law
6. Constitutional Law and Political Science
7. The Majoritarian Fact
8. Classical Constitutional Law
9. Constitutionalism and the Rule of Law
10. Contractual Origins of the State
11. Institutional and Marxist Origins
12. Definition and Elements of the State
13. Territory and Sovereignty
14. Unitary and Federal States
15. Regional States and Autonomy

📅 Key Dates

1. 1787The United States adopted a written framework limiting political power
2. 20 June 1789members of the French National Assembly swore to remain united until they had given France a Constitution
3. 16 July 1971the Constitutional Council established the constitutional block by giving the Declaration of the Rights of Man and of the Citizen, the 1946 Preamble, and the Constitution the same legal value; the Environmental Charter was added in 2004

📖 1. Constitutional Law and the Constitution

🔑 Key Concepts & Definitions

• Constitution: the supreme legal norm and the fundamental legal text of a society, defining the separation of powers and protecting rights and freedoms

📝 Essential Points

• Article 16 of the Declaration of the Rights of Man and of the Citizen states that a society without guaranteed rights and a determined separation of powers has no Constitution.

📌 Benjamin Constant accepts that the Constitution contains all constitutional rules but rejects the idea that constitutional law consists only of the constitutional text.

💡 Memory Hook

“All the Constitution” versus “only the Constitution”

📖 2. The Constitution’s Incompleteness

★ Must-know

📌 Constituent power is original when it establishes a Constitution and derived when it modifies the constitutional text under procedures provided by that Constitution.

Further detail

• The Constitution does not determine the parliamentary mandate, the number of parliamentarians, or their electoral system, although it sets a maximum number of parliamentarians that ordinary law cannot increase.

• The constitutional laws of 1875 contained only 34 articles but remained in force for a long period despite not regulating every constitutional matter.

💡 Memory Hook

Incomplete text → constitutional practice fills the gaps

📖 3. Constitutional Text and Political Practice

★ Must-know

📌 A constitutional rule that has never been used remains legally effective because desuetude does not exist in law.

• Although Article 20 assigns the Government responsibility for determining and conducting national policy, political practice has added that it acts under the authority of the President.

Further detail

• Article 7 of the French Constitution provides for several serious incidents during a presidential election even though it has never been implemented.

💡 Memory Hook

Written rule versus politically accepted practice

📖 4. Political Authority and Constitutional Limits

🔑 Key Concepts & Definitions

• Governors and governed: DUGUIT - those who appear to command and impose orders, whereas governed persons are those subjected to the governors’ coercive power

★ Must-know

📌 Constitutional law limits governors through legal constraints, such as requiring the United States President’s Supreme Court appointments to receive Senate approval.

Further detail

• The French constitutional order gradually achieved constitutional supremacy, since for almost two centuries governments could replace or disregard constitutional texts.

💡 Memory Hook

Governors command; governed persons are constrained

📖 5. Constitutional Law as Judicial Law

★ Must-know

📌 Institutional constitutional law studies institutions and their relationships, normative constitutional law studies the hierarchy of legal norms, and substantive constitutional law studies rights and freedoms.

Further detail

• The Constitutional Council’s review of laws has progressively constitutionalized fields such as civil law and labour law.

💡 Memory Hook

Institutions → norms → rights and freedoms

📖 6. Constitutional Law and Political Science

★ Must-know

• Duverger argued in Les partis politiques (1951) that understanding a regime requires studying its party system and electoral system.

• The Question Prioritaire de Constitutionnalité was created by the 2008 constitutional revision and entered into force in 2010, allowing an enacted law to be challenged after it has entered into force.

Further detail

• Siegfried linked voting patterns in western France under the Third Republic to social and economic factors in Tableau politique de la France de l’Ouest sous la IIIe République.

💡 Memory Hook

Legal principles versus observed political reality

📖 7. The Majoritarian Fact

🔑 Key Concepts & Definitions

• Majoritarian fact: the political sequence in which a presidential victory produces a supportive parliamentary majority shortly afterward

★ Must-know

• Since the shift from a seven-year presidential term to a five-year term, presidential and legislative elections have been synchronized closely enough to facilitate a parliamentary majority supporting the President.

Further detail

• In 2017, Emmanuel MACRON was elected President and candidates supporting him were elected deputies in June, producing a clear majoritarian sequence.

💡 Memory Hook

Presidential victory → parliamentary majority

📖 8. Classical Constitutional Law

📝 Essential Points

📌 Constitutions accept political contestation fully in democracies, tolerate it narrowly in authoritarian regimes, and persecute it in dictatorships.

💡 Memory Hook

1787 Constitution → 1789 Oath → constitutional limits

📖 9. Constitutionalism and the Rule of Law

🔑 Key Concepts & Definitions

• Constitutionalism: the ideology that a Constitution can establish a liberal regime by separating powers and guaranteeing rights and freedoms

★ Must-know

📌 The rule of law is an intangible condition of democracy, whereas the state of law refers to legal rules that may be modified. - Laurent FABIUS

Further detail

• Political parties can occupy the executive, legislative, and even jurisdictional spheres, making separation of powers virtual when one political force controls several institutions.

💡 Memory Hook

Rule of law versus merely changing law

📖 10. Contractual Origins of the State

🔑 Key Concepts & Definitions

• General will: ROUSSEAU, Du contrat social - the collective will to which individuals voluntarily submit, allowing them to remain free within society

📝 Essential Points

📌 Hobbes describes the state of nature as a war of all against all and argues that individuals surrender all their rights to the State through a unilateral commitment. - Le Léviathan, 1651

📌 Locke considers the state of nature relatively satisfactory but creates a reciprocal contract in which individuals transfer their right to administer justice to the State while retaining fundamental rights. - Traité du gouvernement civil, 1690

💡 Memory Hook

Hobbes gives up all rights; Locke preserves some

📖 11. Institutional and Marxist Origins

🔑 Key Concepts & Definitions

• Institution: HAURIOU - a system of balanced powers and consent constructed around an idea

★ Must-know

📌 In Marxist theory, the infrastructure consists of productive forces and determines the superstructure, which includes institutions, law, religion, culture, and the Constitution.

Further detail

📌 In Marxist theory, the State is an organization of the possessing class and is expected to disappear in a classless communist society.

💡 Memory Hook

Social idea → institution; economic infrastructure → state form

📖 12. Definition and Elements of the State

🔑 Key Concepts & Definitions

• State: a legal person under public law that possesses the monopoly of lawful coercion

📝 Essential Points

• The three constitutive elements of a State are:
  • a population
  • a territory
  • sovereignty

📌 Population is an objective and numerical notion, whereas nation is the subjective identification of people who share values and feel part of a collective distinct from neighbours.

💡 Memory Hook

PTS: population, territory, sovereignty

📖 13. Territory and Sovereignty

🔑 Key Concepts & Definitions

• State sovereignty: the exclusive legal authority exercised by the State over a population gathered on a territory

📝 Essential Points

• A State’s territorial sea extends 12 nautical miles from the coast, while its exclusive economic zone extends to 200 nautical miles.

📌 Internal sovereignty lets the State impose authority on all actors within its territory, whereas external sovereignty means that no other State may impose authority on it.

💡 Memory Hook

Land → sea → air → cyberspace

📖 14. Unitary and Federal States

★ Must-know

📌 A unitary State has one central legal order, whereas a federal State superposes a federal State on federated States linked by a Constitution.

📌 Deconcentration transfers State administrative functions to local State agents, whereas decentralization transfers legally defined powers to distinct entities with freedom of administration.

Further detail

• 🔄 The formation of the United States proceeded through:
  1. thirteen independent colonies in 1776
  2. the Articles of Confederation in 1781
  3. the federal Constitution of 1787

💡 Memory Hook

One legal order versus superposed federal and federated orders

📖 15. Regional States and Autonomy

★ Must-know

📌 Federalism combines superposition of legal orders, autonomy of federated entities, and participation of those entities in the federal will.

• In the United States, the federal supremacy clause makes federal law prevail over incompatible federated law.

Further detail

• In the United States, constitutional revision requires approval by both federal chambers and three-fourths of the federated States within a maximum period of seven years.

💡 Memory Hook

Unitary framework versus constitutionally protected regional autonomy

📊 Synthesis Tables

Main Forms of State

Theories of the Social Contract