Study guide: Constitutions in French and Common Law

📋 Course Outline

1. British Constitutional Continuity
2. American and French Constitutional Change
3. Constitutional Forms and Codification
4. Formal and Material Constitutions
5. Constitutional Hierarchy of Norms
6. Models of Constitutional Review
7. Constitutional Review in the United Kingdom

📖 1. British Constitutional Continuity

🔑 Key Concepts & Definitions

• Constitutional convention: A customary rule governing political conduct that is not itself a legally enforceable statute.

★ Must-know

📌 The British constitutional order developed through continuity of the monarchy rather than a constitutional breakup or constituent moment like those in the United States and France.

• The UK’s constitutional rules draw on customs and conventions, case law, and legislation, including Magna Carta (1215), the Bill of Rights (1689), the Human Rights Act (1998), and the Constitutional Reform Act (2005).

Further detail

• The British Constitution is described by John Griffith in “The Political Constitution” (1979) as “no more and no less than what happens.”

• The monarch legally appoints the Prime Minister, but convention requires appointing the person who commands a majority in the House of Commons.

• The Sewel Convention provides that the UK Parliament will not normally legislate on devolved matters without the consent of the relevant regional parliament.

💡 Memory Hook

The UK’s continuing monarchy contrasts with revolutionary constitutional breaks in the US and France.

📖 2. American and French Constitutional Change

🔑 Key Concepts & Definitions

• Constituent power: The power to create a constitution.

★ Must-know

📌 Under Article V of the US Constitution, an amendment may be proposed by two-thirds of both Houses of Congress or by a convention called on applications from two-thirds of state legislatures, and must be ratified by three-fourths of the states through legislatures or conventions.

• The US Constitution of 1787 expresses constituent power, while its amendment procedure is distinct from ordinary legislation.

📌 Article 89 of the French Constitution allows revision to be initiated by the President on the Prime Minister’s proposal or by members of Parliament; both chambers must adopt identical wording, followed by referendum approval unless the President submits the draft to Congress, where three-fifths of votes cast must approve it.

Further detail

• The United States declared independence on 4 July 1776.

📌 Under Article 89, revision may not be initiated or continued when the territory’s integrity is affected, and the republican form of government cannot be revised.

• France has had 15 constitutions, from the Constitution of 1791 to the Constitution of 1958.

📖 3. Constitutional Forms and Codification

🔑 Key Concepts & Definitions

• Written constitution: Set out in a text, as in France and the United States.
• Unwritten constitution: Based on customs and case law, as in the United Kingdom and New Zealand.
• Codified constitution: Compiled in one unique document.

★ Must-know

📌 The UK Constitution is partially written through statutes, conventions, and case law, but it is uncodified because those sources are not contained in one unique document.

• The French constitutional bloc comprises: the 1958 Constitution, its Preamble, the Declaration of 1789, the Preamble of 1946, fundamental principles recognized by the laws of the Republic, the 2004 Environmental Charter

Further detail

• The French Constitutional Council’s 1971 Liberté d’association decision established the constitutional significance of the bloc de constitutionnalité.

💡 Memory Hook

Written is not the same as codified: the UK has written constitutional laws but no single constitutional document.

📖 4. Formal and Material Constitutions

🔑 Key Concepts & Definitions

• Formal constitution: Adopted and revised through exceptional procedures distinct from those used for ordinary law.
• Material constitution: Identified by its subject matter, such as political institutions, legislative procedures, and human rights.

★ Must-know

📌 A flexible constitution is adopted and amended through ordinary legislation, ordinary case law, or customs, as in the United Kingdom.

Further detail

📌 Human rights may appear in a formal constitution, as in France, Germany, and Italy, or in separate constitutional legislation, as with the UK Human Rights Act 1998.

💡 Memory Hook

Formal status depends on exceptional procedures; material status depends on constitutional subject matter.

📖 5. Constitutional Hierarchy of Norms

★ Must-know

📌 In a system with a formal and rigid constitution, the constitution is the summit of the legal order and lower-level norms must comply with higher-level norms.

• The UK has no supreme formal constitution and no formal constitutional summit; its hierarchy contains legislation but not a supreme constitution.

Further detail

• Before Brexit, European Union treaties prevailed over UK legislation, but that is no longer the case; Council of Europe treaties such as the European Convention on Human Rights remain relevant.

💡 Memory Hook

Picture a pyramid: lower-level norms must comply with higher-level norms.

📖 6. Models of Constitutional Review

★ Must-know

📌 Diffuse or decentralized constitutional review allows every judge to review the constitutionality of legal norms, whereas centralized review assigns that power to one specific constitutional court.

Further detail

• Constitutional review under formal constitutions can concern legislation, regulations, and case law.

• Marbury v. Madison (1804) is cited as an example of constitutional review in the United States.

• The French examples of constitutional review are the 1958 Constitution and the Constitutional Council’s Liberté d’association decision of 1971.

💡 Memory Hook

Diffuse review lets every judge review constitutionality; centralized review assigns it to one specific court.

📖 7. Constitutional Review in the United Kingdom

★ Must-know

📌 The UK principle of parliamentary sovereignty prevents courts from exercising constitutional review that invalidates Acts of Parliament.

• 🔄 The Human Rights Act procedure is: courts interpret legislation compatibly with the ECHR where possible, if compatible interpretation is impossible, courts may issue a declaration of incompatibility, Parliament and government address the conflict

📌 A UK declaration of incompatibility states that legislation conflicts with the ECHR but does not make the legislation void.

Further detail

• The Human Rights Act 1998 incorporated most of the European Convention on Human Rights into UK domestic law.

💡 Memory Hook

Parliamentary sovereignty prevents courts from voiding statutes, so HRA incompatibility declarations leave correction to Parliament.

📊 Synthesis Tables

Constitutional Review Models