I am currently undertaking an Erasmus year abroad, where I am studying law at the University of Poitiers in France. Although I have not yet finished my first term here, the contrasts between English law and French law are already striking. An especially important difference is in the different natures of the two countries’ legal orders. This article compares the two systems, with a specific focus on the respective constitutions of each country, and questions the validity of the assumptions held regarding these two different types of constitution.
The sources of French law exist in the following way:
As the diagram demonstrates, the French legal order is hierarchical. In this hierarchy, the constitution is the “norme suprême”, or the supreme norm. All French law must abide by the rules of the French Constitution and there are various institutions and procedures in place to ensure that such constitutionality is upheld.
Although the exact nature of the constitutional order of English law remains a source of debate, the orthodox position is somewhat in contrast to the pyramid depicted above. At least traditionally, the UK is said to have a flat constitution. This means that constitutional law is a subset of ordinary law. It therefore has the same status as any other law and can be overridden at any time.
As part of my constitutional law studies in Poitiers, the consequences of the differences between UK constitutional law and French constitutional law are explored. The prevailing view is that unwritten constitutions, such as the UK’s constitution, are relatively easy to change and therefore provide less security for fundamental rights. Indeed, my lecturer calls the UK’s constitution “une constitution souple”--a flexible constitution. The lecturer further notes that written constitutions have the benefit of clarity as the constitutional articles give a clear and accessible explanation of the constitutional rules.
The description above suggests that the written constitution is superior: it is clearer and better protects individual liberties. But the reality is more complex. With regards to the issue of written constitutions and clarity this point can be made in both a theoretical and an empirical way. From a theoretical standpoint, it must be accepted that a written constitution loses some of its clarity by virtue of the fact that it is constructed in a way that ensures that it has a degree of permanence. In other words, if it is to be accepted that a constitution should not be regularly modified, any written constitution must be vague enough to allow it to to survive the test of time and withstand changing social, legal and political conditions. This line of thought is supported by US Supreme Court rulings in relation to the African American Civil Rights Movement. In Plessy v Ferguson [1896] the Court effectively declared racial segregation as constitutional.
However, over half a century later, using the same constitutional amendments, racial segregation in schools was held to be unconstitutional (Brown v Board of Education [1954]). This demonstrates that constitutional amendments can be widely interpreted; such scope for judicial interpretation lessens the amount of clarity that they can bring. The fact that the US Constitution allowed for lawful segregation also casts doubt upon the claim that a written constitution is the best mechanism for guaranteeing fundamental rights.
Nevertheless, on the face of it a written constitution still provides a greater amount of security for individual liberties than an unwritten constitution, because a special procedure is required to modify a written constitution that is hierarchically superior to other laws. But this argument is too simplistic: it suffers from a one-dimensional approach that fails to give ample consideration to the importance of the political element. Although legally the UK constitution is just as easy to modify as any other law, from a political perspective this may not be the case. Indeed, it is even possible to argue that the reason for the “entrenchment” of a written constitution is more so due to the political, as opposed to legal, standing that it holds – the “constitution-ness” of a law automatically attracting a certain amount of political clout. Legal procedure is, therefore, not the whole picture. This in mind, debate regarding whether or not the UK constitution should be codified must not exclusively focus on legal reality because, as is the case with all legal issues, law exists in tandem with other social phenomena.
