Separation of powers
The principle of separation of powers has been theorized by Locke (1632-1704) and Montesquieu (1689-1755). It tends to limit arbitrariness and ensure a balance by distinguishing functions within a political system and prescribing their separation. According to Montesquieu, “In order for power not to be abused, it is necessary that, by the disposition of things, power stops power.”
Based on this principle, there are 3 main powers within a political system:
- the legislative power is the power to pass laws,
- the executive power is the power to enforce laws,
- the judicial power is the power to control law enforcement and to settle disputes.
In the United States, this theory inspired the drafters of the American Constitution, who instituted in 1787 a presidential system organized according to a strict separation of the three powers, tempered by the existence of reciprocal means of control and action designed in accordance with the doctrine of “checks and balances”.
In France, article 16 of the Declaration of the Rights of Man and of the Citizen of 26 August 1789 also refers to this theory by providing that “Any society in which the guarantee of rights is not ensured or the separation of powers determined, has no Constitution”.
However, very quickly, in 1790 and 1795, texts prohibited the courts of the judicial order from hearing disputes concerning the administration. The legislative power and the executive power were removed from judicial review on the grounds that they did not have sufficient legitimacy to judge acts of authorities elected by universal suffrage and acting in the public interest.
From 1799, an administrative court separate from the judicial authority, the Council of State (Conseil d’État), was established to allow the challenge of the acts of the administration.
This is how we speak of a “French conception of the separation of powers”, characterized by a certain mistrust of the judiciary and a desire to limit it. This conception is reflected in particular in the existence of a duality of jurisdictions (the judicial order and the administrative order) and in the interference of the executive power in judicial activities.
The rule of law (État de droit) refers to a State which submits to rules and which offers individuals judicial remedies in order to enforce their rights against the State.
The normative pyramid is a representation of the normative system that emphasizes the hierarchy of norms. The fundamental norm, the constitution, is at its top. Each lower rule must comply with the higher rule. Generally, the most important rules are the least numerous.
French law is generally codified.
The codes can be consulted on the officiel website legifrance.gouv.fr.
Anglo-Saxon laws are generally not codified and rely highly on the doctrine of precedent (rule of precedent), whereas under French law, case law is less important when the written rules are clear. French law regulates more strictly than Anglo-Saxon laws the power of the judges to interpret laws.