LL5304: Comparative Law - Constitutional Impact: France, Germany, USA

This essay provides a comparative analysis of the constitutional frameworks and their impact on the legal systems of France, Germany, and the United States of America. It delves into the concept of dictatorship and the importance of separation of powers, examining the specific constitutional structures, including the roles of the President, Chancellor, and Federal Constitutional Court. The essay discusses the French Constitutional Council, its priori system, and its impact on individual rights, highlighting both advantages and drawbacks. It also explores the German Basic Law, the Federal Constitutional Court's role, and the protection of individual rights. The analysis further covers the US Constitution, emphasizing the separation of powers and the historical context of its emergence. The essay also discusses the role of the legislature in the context of the French legal system.

Running head: THE CONSTITUTION AND ITS IMPACT UNDER FRANCE, GERMANY
AND AMERICA
THE CONSTITUTION AND ITS IMPACT UNDER FRANCE, GERMANY AND AMERICA
Name of the Student:
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Author Note:

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THE CONSTITUTION AND ITS IMPACT UNDER FRANCE, GERMANY AND
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Introduction
The concept of dictatorship must be taken into consideration before discussing
about the Constitution of France, Germany and America. The dictatorship power is
known as the power where all political power is centralized under the hand of one
individual and it is considered as a use of coercion and arbitrary power in the political
scenario of a state. The centralized power is harmful for the citizens of the people as it
will allow the dictator to rule according to its wish and nobody has control over the
dictator. In order to act for the best of a country the separation of power must be
exercised. The power of legislature, executive and judiciary must be independent
bodies and all the power must not fall under any particular body. The three countries
which are falling under democratic country are France, Germany and America. Only the
United States of America has observed the strict separation of power but in case of
Germany and France weak separation has been observed. This study will discuss about
the constitutional council and the impact on the state and different viewpoints of the
commentator will be discussed to show different viewpoints related to that.
Discussion
France
The Constitution of France came into existence in the year of 19581 and it helped
to develop the position of the President. France has been criticized because of the weak
executive power during 3rd and 4th Republic2. The executive in the country is divided
under two heads The President and the Prime Minister. The President is known as the
ultimate authority to govern the political system and the President is responsible to
appoint the Prime Minister of the state3. The term of President has been reduced from 7
years to 5 years in order to ignore the inhabitation. Article 6 of the Constitution4 talks
1 Bell, John, and John. 1953 Bell. French constitutional law. Vol. 188. Oxford, UK: Clarendon Press, 1992.
2 Keeler, John TS. "Executive power and policy‐making patterns in France: Gauging the impact of fifth republic
institutions." West European Politics 16.4 (1993): 518-544.
3 Bucur, Cristina. "A mould-breaking cabinet? Changes and continuities in the formation of the 2017 French
government." French Politics 15.3 (2017): 340-359.
4 Stevens, Anne. Government and politics of France. Macmillan International Higher Education, 2017.

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about the term of president and it says the President must not hold the office more than
two consecutive terms. The President of France5 is also liable to look after the function
of the government and it different from the Constitution of Germany who has only
symbolic powers to exercise. Article 19 of the Constitution6 gives power to the President
to make all the acts impenetrable but it makes responsible to the government under
Article 20 and 49 of the Constitution7. The President has the authority to diffuse the
National Assembly8. The French Constitution is considered as the supreme authority
and all the government derives its power from the Constitution. The Constitutional
Council9 has been established to review the laws of the land and it has the power to
quash anything if it found against the Constitution.
The Constitution of France observes the secular nature10. It treats equally all the
people of the country without any injustice on the basis of gender, nationality, origin of
an individual. However the country in order to vanish discrimination on the part of the
religion11 restricted to wear certain outfits as a symbol of any religion. The effort to this
however made certain group of people unhappy for example the Sikh Community of
India.
The Conseil Constitutitionnel in France
The Conseil Constitutitionnel12 established in France in order to deal with the
questions related to Constitution. The Conseil Constitutionnel has followed the
European model13 and it was made to have a separate jurisdiction and to answer the
constitutional questions on the request by political or judicial authorities. The control of
5 Sowerwine, Charles. France since 1870. Palgrave, 2018.
6 Moghadam, Fariba Sanjari, and Vahid Maleki. "The Role of the President on the Implementation of the
Constitution: a Comparative Study of Fundamental Rights in Iran, France and Afghanistan." International Journal
of Humanities and Cultural Studies (IJHCS) ISSN 2356-5926 1.1 (2016): 1871-1887.
7 Bell, John. "External Dimensions of the French Constitution." Va. J. Int'l L. 57 (2017): 493.
8 Duyvendak, Jan Willem. The power of politics: New social movements in France. Routledge, 2019.
9 Duhamel, Olivier. "Terrorism and constitutional amendment in France." European constitutional law review 12.1
(2016): 1-5.
10 Hennekam, Sophie, et al. "Managing religious diversity in secular organizations in France." Employee
Relations (2018).
11 Fox, Jonathan. The unfree exercise of religion: A world survey of discrimination against religious minorities.
Cambridge University Press, 2016.
12 Wright, Susan. "The French Conseil constitutionnel under an Evolving Constitution." European Public Law 23.2
(2017): 245-251.
13 Larik, Joris. "Prêt-à-ratifier: The CETA Decision of the French Conseil constitutionnel of 31 July
2017." European Constitutional Law Review 13.4 (2017): 759-777.

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the constitution on laws are priori basis as per this system the laws has to be
communicated to the Conseil Constitutionnel prior to come into operation if there is any
unconstitutional nature. Once it comes into existence, it cannot be challenged. The
priori system has lots of disadvantages as debated by the people. The laws which are
not referred to the Conseil Constitutionnel cannot be challenged though it has
unconstitutional in nature. The French judges does not have the power to reject the old
laws which are not constitutional in nature. The priori system has both the
disadvantages as it creates force on the judges to deal with laws which are against the
constitution and it also does not allow the law to act in an effective way.
It has been criticized by many that France does not allow the individuals to deal
with the constitutional issues like the US and only the authorized organs has the power
to refer it for review before the proclamation. However Professor Favoreu observed a
different perspective by explaining that reference made by an individual is sometimes
unreal to deal with the constitutionality of law. The Supreme Court of the US in order to
deal with individuals selects a small number of cases on discretion and rejects the
maximum cases.
The priori system irrespective of the drawbacks has also certain advantages like
it creates a security in the mind of the judicial system that a law which is going to come
for effect has a constitutional nature. The US system does not have any such protection
and it can be challenged at any time. The priori system also helps to reduce the
chances of litigation and creates a united judicial order.
The Preamble of the Constitution talks about the rights of the individual but it is
not originally controlled by the Constitution. The Conseil d’Etat, since 1872 was
responsible for protecting the rights of the individual against any illegal or improper acts
of the Government.
Drawbacks of Constitutional Protection on Individual Rights
The Conseil Constitutionnel was not able to provide full protection to the rights of
the individual because as it has sudden drawbacks14. Firstly insufficient control over
14 Gulasarian, Arthur S. "STATES AND INTERNATIONAL ORGANIZATIONS IN THE EARLY 21ST
CENTURY: RETHINKING THE CONCEPT OF SOVEREIGNTY." Kutafin University Law Review 4.2 (2017):

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application of laws. Priori system of control identified as a setback for controlling the
constitutional rights. It is possible that a text which does not violate the constitutionality
on its face but a particular section of the law in violation of the Constitution. Such
circumstances should be guided by the Conseil to interfere with the judiciary. The
decision made on August 26, 1986 on identity checks however reveals a defect in
system. The order given by the Conseil the role of judicial system is centralized only to
the protection the rule made by the legislature. The power of courts are come into
limitation if the legislature by exercising own motion removes the criticality from the
freedom of movement which is considered as the constitutional rights by enforcing the
police protection. Individual rights are not protected by the legislator however the
Conseil is not bound to reject the provision which are against the rights of the individual.
The provisions which are written in vague language is subjected to be rejected by the
Conseil though it is against the rights of the Constitution. Secondly failure to extend the
constitutional guarantees to all procedures. The criminal procedures in the state are
different from the constitutional safegiards to individual and the principle that the law of
the state applied to all the individuals in an equal way is not applicable to the accused of
the criminal procedures. The Constitutional guarantees are failed due to the lack of
police investigation at the preliminary stage. In France an individual may be obstructed
by the Police for the purpose of investigation can be under the custody of the police for
upto forty eight hours. The suspected person may not be a criminal then also he will not
get rid from the coercive action of the Police. The person will not be allowed to contact
an attorney in the period of detention which is itself a violation of the individual rights.
The Constitutional rights will come into existence under the supervision of a judge when
a person is charged formally. The Police may obtain the evidences in the investigation
file which can go against the individual at the trial stage and the person may not have
the idea of his or her rights. The illegally obtained evidences by the police officer are
highly taken into account by the Juges d’instruction to form a charge upon an individual.
The failure to protect the individuals at the periliminary stage is criticized by few French
critics and the scenario will not be changed in upcoming years. Thirdly inadequate
regulation of emergency powers which is a comparatively occurs in limited situation and
334-345.

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it gives the Police the excessive power to meet the emergency and the rights
guaranteed by the Constitution comes under the limitation. A general emergency
situation is dealt by the legislature and on the case of New Calendonia’s emergency
situation15 the Conseil in the decision confirmed the power of the legislature and in the
emergency situation it need to deal with the rights of the people. According to Professor
Favoreu at the time of emeregency the Conseil must declare the conditions on which a
law need to be communicated and limitation on control of individual rights. However
Professor Renoux observed that judicial system is the guardian of the individual rights
at the time of emergency. Forthly immunity of existing laws to constitutional challenge
as because the existence of priori system doesnot allow the judges to declare any law
as unconstitutional. It is a considered as a drawback especially in the criminal justice
system because a new law can be referred to Conseil and declared as unconstitutional
but an old law with the same nature are into existence.
Germany
The Constitution of Germany came into effect on 23rd May, 1949. The executive
power of the state are divided into two heads the President and the Chancellor. The
President in the role has certain emblematic role and the executive power is actually
held by the Chancellor. The Constitution of Germany is based on the basic law and it
offers the basic rights of the people which are under Article 1 to 19 of the constitution.
The basic rights of the citizens of the country are mainly focused on the necessities of
the people in the country. The Federal Constitutional Court (FCC) is known as the
guardian of the Constitution as it bound the state to follow the basic law. The FCC has
the power to deal with laws made by the Parliament and it can make laws void for the
country and it has made 600 laws void. FCC not only deals with the law it is also
responsible for the external affairs between the states. The Constitution is considered to
be the supreme law of the land and the rights of the people must be protected under the
law. However there are circumstances when the discretion of FCC has observed.
15 Connell, John. New Caledonia of Kanaky: The political history of a French colony. Canberra, ACT: Development
Studies Centre, Research School of Pacfic Studies, The Australian National University., 2017.

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Individual Rights and the Look out of FCC
The freedom of Religion and Conscience are described under Art 4 BL of the
Constitution which gives the right to the individual to carry out the religious belief and
the conscience without any disturbances and it also involves into the military service of
the country. In the case of Faith Healer Decision16 the FCC observed it that freedom of
self-determination, religion and human dignity are linked with each other. However in
the Lumber-Room Decision17 it has showed a different aspect by mentioning that it has
a mutual rights. The FCC in the case of School Prayer18 considered as a positive
freedom of religion by exercising the freedom an individual can confront towards the
society about the religious belief. However in Crucifix in Classrooms Decision19
considered it as a negative freedom of religion by stating that the state must be in a
neutral position and Article 4 (1) BL need to be exercised by the individual that religious
symbol is acceptable for that person.
United Nations of America
The Constitution of the United States came into existence on 4th march, 1789.
The Constitution observes separation of power under the legislature, executive and
judiciary. The President of the US enjoys a wide range of powers as the head of the
nation and the Supreme Court as a part of the judiciary also enjoys the independence.
The rights of the individual are enshrined in the Constitution but it has seen in lot of
circumstances the discretion power has been used to over the constitution.
Conclusion
Therefore from the above discussion it can be stated that rule of law has been
observed by France, Germany and America. Three countries mentioned above tried to
form the legal system in an accurate way by making the Constitution as the supreme
16 Wasserman, Jacob L. "Internal Affairs: Untold Case Studies of World War I German Internment." (2016).
17 Cools, Arthur. "Desire and Responsibility: The Case of K." Kafka and the Universal 21 (2016): 130.
18 Eberle, Edward J. Church and state in Western society: established church, cooperation and separation.
Routledge, 2016.
19 Fancourt, N. P. M. "Crucifixes in classrooms: the pedagogical assumptions of the European Courts." (2017).

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law of the land but in reality all the systems are under certain drawbacks especially
when it comes to the exercise of Individual rights.

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References
Bell, John, and John. 1953 Bell. French constitutional law. Vol. 188. Oxford, UK:
Clarendon Press, 1992.
Bell, John. "External Dimensions of the French Constitution." Va. J. Int'l L. 57 (2017):
493.
Bucur, Cristina. "A mould-breaking cabinet? Changes and continuities in the formation
of the 2017 French government." French Politics 15.3 (2017): 340-359.
Connell, John. New Caledonia of Kanaky: The political history of a French colony.
Canberra, ACT: Development Studies Centre, Research School of Pacfic Studies, The
Australian National University., 2017.
Cools, Arthur. "Desire and Responsibility: The Case of K." Kafka and the Universal 21
(2016): 130.
Duhamel, Olivier. "Terrorism and constitutional amendment in France." European
constitutional law review 12.1 (2016): 1-5.
Duyvendak, Jan Willem. The power of politics: New social movements in France.
Routledge, 2019.
Eberle, Edward J. Church and state in Western society: established church,
cooperation and separation. Routledge, 2016.
Fancourt, N. P. M. "Crucifixes in classrooms: the pedagogical assumptions of the
European Courts." (2017).

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THE CONSTITUTION AND ITS IMPACT UNDER FRANCE, GERMANY AND
AMERICA
Fox, Jonathan. The unfree exercise of religion: A world survey of discrimination against
religious minorities. Cambridge University Press, 2016.
Gulasarian, Arthur S. "STATES AND INTERNATIONAL ORGANIZATIONS IN THE
EARLY 21ST CENTURY: RETHINKING THE CONCEPT OF SOVEREIGNTY." Kutafin
University Law Review 4.2 (2017): 334-345.
Hennekam, Sophie, et al. "Managing religious diversity in secular organizations in
France." Employee Relations (2018).
Keeler, John TS. "Executive power and policy‐making patterns in France: Gauging the
impact of fifth republic institutions." West European Politics 16.4 (1993): 518-544.
Larik, Joris. "Prêt-à-ratifier: The CETA Decision of the French Conseil constitutionnel of
31 July 2017." European Constitutional Law Review 13.4 (2017): 759-777.
Moghadam, Fariba Sanjari, and Vahid Maleki. "The Role of the President on the
Implementation of the Constitution: a Comparative Study of Fundamental Rights in Iran,
France and Afghanistan." International Journal of Humanities and Cultural Studies
(IJHCS) ISSN 2356-5926 1.1 (2016): 1871-1887.
Sowerwine, Charles. France since 1870. Palgrave, 2018.
Stevens, Anne. Government and politics of France. Macmillan International Higher
Education, 2017.
Wasserman, Jacob L. "Internal Affairs: Untold Case Studies of World War I German
Internment." (2016).

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THE CONSTITUTION AND ITS IMPACT UNDER FRANCE, GERMANY AND
AMERICA
Wright, Susan. "The French Conseil constitutionnel under an Evolving
Constitution." European Public Law 23.2 (2017): 245-251.