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Decree Powers and Constitutional Law in France under the Third Republic

Published online by Cambridge University Press:  02 September 2013

Otto Kirchheimer
Otto Kirchheimer
Affiliation:
Institute of Social Research, New York City
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Extract

In the World War period and after, the use of extraordinary powers by the executive for legislative purposes became so widespread in Europe that constitutional theorists began to find it convenient to give up the doctrine of legislative supremacy. The constitutional basis for these extraordinary powers has been found in one of two ways: either the parliament may authorize the government to exercise certain legislative functions by way of delegation, or certain provisions in the constitution may be interpreted as giving the executive the right under certain circumstances not only to take specific administrative steps, but also to issue rules of a more general character. In either case, the question invariably arises as to how far the delegation of power may go, or as to the degree to which alleged constitutional emergency provisions may be used to supersede parliamentary legislation.

In France, no constitutional emergency power is provided in the “organic” laws of 1875 which could give a starting point for independent rule-making activity. A law of April 3, 1878, defined very closely the conditions under which a state of siege may be declared and surrounded such a declaration with elaborate provisions for parliamentary supervision. It is apparent that this statute does not allow the government to decree rules of a general character.

Type
Research Article
Information
American Political Science Review , Volume 34 , Issue 6 , December 1940 , pp. 1104 - 1123
Copyright
Copyright © American Political Science Association 1940

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References

1 It is a merit of the interesting article by Watkins, F. M., “Constitutional Dictatorship,” in Friedrich, and Mason, (eds.), Public Policy (Cambridge, 1940), p. 355Google Scholar, to have sharply separated both issues, the original constitutional emergency powers and the parliamentary enabling acts.

2 The “state of necessity” theory, which is also used sometimes to justify governmental activity in fields reserved to the legislature, gained some favor with the Conseil d'État in the immediate post-war period in order that it might uphold governmental war measures running counter to statutory limitations in the interest of the national well-being; see, e.g., the decision in the Heyriès case printed in Hauriou, M., Jurisprudence Administrative (Paris, 1929), I, p. 78.Google Scholar But the application remained restricted to cases arising from war emergencies. In Coudert, and Arrighi, , Recueil Général de Jurisprudence (S), (1937), III, p. 33Google Scholar, commented on by Mestre, the use of the state of necessity theory is disavowed in discussing the decree laws of 1934.

3 The whole development until 1924 is very adequately treated in Tingsten, H., Les Pleins Pouvoirs (Paris, 1934)Google Scholar, trans, from the Swedish. See also de Lacharrière, René Ladreil, “Le système des décrets lois et le régime parlementaire,” in Revue d'Histoire Politique et Constitutionelle, Vol. 3 (1939), pp. 122–150Google Scholar, which should be used with caution, however, because the author deals with the subject without any regard for the underlying social problems, and is chiefly interested in proving the feasibility and constitutionality of government by decree. A short history of decree legislation is to be found also in Sharp, W. R., The Government of the French Republic (New York, 1938), pp. 133–137.Google Scholar See also Loewenstein, K., “The Balance between Legislative and Executive Power,” University of Chicago Law Review (1938), pp. 566–608CrossRefGoogle Scholar, and Jacoby, S. B., “Delegation of Powers and Judicial Review,” Columbia Law Review (1936), pp. 871–907.CrossRefGoogle ScholarBonnard, R., “Le droit public et la guerre,” Revue du Droit Public, Vol. 56 (1939), pp. 549–647, and Vol. 57 (1940), pp. 90–125Google Scholar, gives a rather uncritical description of the constitutional developments since 1939. The article, however, is valuable on account of its wealth of documentation.

4 Session Ordinaire, Chambre, 1924, p. 326. Similar arguments were later brought forward by Laval, Sess. Ord., Chambre, 1935, p. 1818.

5 Sess. Ord., Chambre, 1924, pp. 338 seq., 477 seq.

6 See Lacharrière, supra, p. 130.

7 The decree laws of Poincaré are discussed by Bonnard, Roger in “Les décretslois du Ministère Poincaré,” in Revue du Droit Public, Vol. 44 (1927), pp. 248–288.Google Scholar

8 The Daladier cabinet, 1933, inserted an enabling clause restricted to administrative reforms and economies in the minimum amount of 300 million Poincaré francs into Article 8 of the budget act of December 22, 1933, but resigned before taking any action.

9 Sess. Ord., Chambre, 1934, p. 674.

10 For the history of this crisis, see Dauphin-Meunier, A., La Banque de France (6th ed., Paris, 1936)Google Scholar, and Einzig, Paul, World Finance, 1935–57 (New York, 1937), p. 47 seq.Google Scholar

11 Sess. Ord., 1934, Chambre, p. 1829.

12 The Laval decrees of October 30, 1935, and the reports to the President of the Republic explaining and motivating the decrees occupy 300 pages in the Journal Officiel of October 31, 1935. They range from salary cuts and forced rent decreases to improvements in child welfare service and a more vigorous prosecution of those aliens who, unable to obtain permission to enter other countries, forcedly remained in France.

13 On the reasons for this abstention, see the remarks of Rogers, Lindsay, in “Personal Power and Popular Government,” in Southern Review, Vol. 3 (1937), p. 232Google Scholar, and “M. Blum and the French Senate,” in Polit. Sci. Quar., Vol. 52 (1937), pp. 321–339.

14 Sess. Ord., Chambre, 1937, p. 2048.

15 Sess. Ord., Senate, 1937, p. 695.

16 As one of the arguments in favor of his enabling bill, Blum (Sess. Ord., Chambre, 1937, p. 1979) had promised that, unlike previous governments (Laval), he would not attempt to issue decrees while the chambers were in recess. But it is evident that the constitutional arguments played a distinctly secondary rôle. See, e.g., Flandin, Sess. Ord., Chambre, 1937, p. 1969, and Reynaud, ibid., p. 1972. The proposed policy is the only issue of importance.

17 Sess Ord., Chambre, 1937, p. 2104; Senate, 1937, p. 730.

18 Journal Officiel of July 1, 1937.

19 The promise which the government made to the Senate was read and commented on in the Senate by Abel Gardey, who, with Caillaux, was the chief parliamentary leader of the senatorial opposition to the Front Populaire. Sess. Ord., Senate, 1937, p. 718. Material on analogous “compromise enabling acts” in the earlier years of the Weimar Republic may be found in Poetzsch-Heffter, , Jahrbuch des öffentlichen Rechts, Vol. 12 (1925), pp. 212 seq.Google Scholar See also Watkins, F. M., The Failure of Political Emergency Powers under the German Republic (Cambridge, 1939), p. 76.Google Scholar

20 Sess. Ord., 1938, Chambre, p. 1183; Senate, p. 562.

21 Sess. Ord., 1938, Chambre, p. 1183; Senate, p. 562.

22 Here is a brief indication of some of the matters on which the Journal Officiel of June 26 and 29, 1938, contains regulations issued in pursuance of the enabling act (though somewhat similar smaller groups of decrees had already been issued on June 15, 17, 18, and 19): public utility regulations, treatment of vagabonds, surveillance of private aid societies and welfare institutions, reorganization of the French Red Cross, regulation of broadcasting, reorganization of seamen's social security benefit, reorganization of state architectural services, institution of a medical service for students, reëstablishment of criminal “relegation” to Guiana (abolished under Blum), reform of local finances, coördination of transportation system, gold production in colonies, repression of spies, organization and functioning of national and regional agricultural credit institutions, modification of custom duties, reorganization of the military hierarchy, amelioration of agricultural laborers, housing conditions, agricultural professional training, amelioration of fiscal efficiency, agreement with the Bank of France, and introduction of administrative surveillance of privately owned historical documents. Compared with this sampling of regulations issued in one batch in accordance with the enabling act on June 17, 1938, the whole legislative output of the French Parliament in June, 1938, amounted to the following: modification of one article of a statute in regard to military pensions (J. O., June 14), a statute containing some budget modifications and a statute on the exercise of veterinary surgery (J. O., June 22), a statute disjoining one rural community from canton X and transferring it to the jurisdiction of canton Y, a statute for avoiding double tax imposition on profits in Tunis and France (J. O., July 25), two statutes ratifying earlier decrees, two statutes giving the War Ministry more Légion d'Honneur crosses for distribution (J. O., June 27 and 28), a statute regulating the exercise of property rights over apartment houses belonging to several persons and a statute on obligatory anti-diphtheria vaccination (J. O., June 30), extension of accident insurance regulations in Alsace-Lorraine to people working in hospitals and modifications of earlier accident insurance rules (J. O., July 2), a statute creating two new administrative positions (J. O., July 8), ratification of a commercial treaty with Germany, and ratification of two other decrees (J. O., July 9 and 10).

23 Sess. Extraord., 1938, Chambre, p. 1598; Senate, p. 736. No new constitutional arguments were brought forth in the discussion. The speech of Daladier, Sess. Extraord., Chambre, 1938, p. 1553 seq., gives no constitutional justification for his demand. The Socialist speaker Philippe reminded the Chamber of the abuse of decree powers by Brüning and complained that Parliament is always dismissed as soon as possible. Ibid., p. 1547. Abel Gardey, Sess. Extraord., Senate, 1938, p. 730, particularly stressed the promise not to institute an exchange control, and he also quoted a promise by the government not to issue decrees on matters not directly connected with financial recovery. As for constitutional arguments, he appeased the republican conscience of his brethren by emphasizing the temporary character of the power.

24 See the report of Paul Reynaud, minister of finance, to the President of the Republic, which accompanied the publication of the decree laws of November 12, 1938, in J. O., November 13, pp. 12855–12861. An unofficial English translation may be found in the (London) Economist of November 19, 1938, p. 363 seq.

25 Le Temps, March 19, 1939.

26 Cf. Bonnard, , Le droit …, pp. 565–568.Google Scholar

27 The Belgian developments, which we are unable to deal with here, are described in detail by Buttgenbach, in “Pratique des pouvoirs spéciaux en Belgique,” in Revue du Droit Public, Vol. 66 (1939), pp. 80–154.Google Scholar A concise treatment and an excellent evaluation of the Belgian decree practice may be found in Ruttens, R., “Législation extraparlementaire,” in Revue de l'Administration et du Droit Administratif Belge,” Vol. 86 (1939), pp. 245–260.Google Scholar

28 The recent attempt made by Barthélémy, Joseph in “Un tournant dans la conception française de la loi,” in Revue d'Histoire Politique et Constitutionelle, Vol. 3 (1939), 161–168Google Scholar, to interpret a decision of the Conseil d'État as implying a trend towards judicial control of legislative acts cannot be found convincing. The decision is printed in Dalloz, , Recueil périodique et critique de jurisprudence (Paris, 1938), III, 41Google Scholar, “La Fleurette,” with commentary by Professor Rolland. The commentary by Rolland clearly states that, according to the principles of French constitutional law, the principle of the equal sharing of public burdens on which the decision rests would have no validity in the face of the expressed will of the legislature.

29 Quoted supra, note 2.

30 The first Poincaré enabling act provided for the consultation of the administrative section of the Conseil d'État before the issuance of decree laws, but the second Poincaré enabling act left the Conseil d'État out. A decree of March 25, 1939, established the following machinery for the issuance of decree laws. At least three days before the Council of Ministers is to be convoked for discussion of proposed decrees, the decrees must be submitted to a committee made up of the director of the cabinet, the president of the council, the secretary-general of the ministries of war and finance, and one representative of the ministry specifically concerned with the decree in question. As the Council of Ministers will not give more than formal consideration to the decrees, the supervision remains largely in the hands of three officials who can check or confirm the actions of the various departments. (See J. O., March 26/27, 1939). An example of how the decrees are rushed through the Council of Ministers may be found in Lindsay Rogers, op. cit., p. 239; see also Friedrich's, C. J. interesting article, “Paul Reynaud,” in Atlantic Monthly, Oct., 1939, pp. 490–501.Google Scholar During the parliamentary debate on the April, 1938, enabling bill, Louis Marin brought forward an amendment which would have obliged the government to lay any proposed decree before a parliamentary committee at least three days before its issuance. This amendment might have eliminated the excesses of decree legislation through the publicity involved, but it was defeated by a vote of 429 to 97. (Sess. Ord., Chambre, 1938, 1159 seq.)

31 Amicale des anciens combattants. S., 1939, III, 33 seq.

32 See, e.g., the wording of the Daladier enabling act of March 19, 1939. “The decrees must be submitted to the Chamber for ratification before December 1, 1939.” (J. O. of March 20, 1939.)

33 See Hauriou, M., Précis de Droit Constitutionnel (2nd ed., 1929, p. 453)Google Scholar; Jèze, G., “Des règlements faits en vertu d'une compétence donnée au gouvernement par le législateur,” Revue du Droit Public, Vol. 55 (1938), p. 503.Google Scholar For Belgium, see Buttgenbach, op. cit., p. 106 seq. Similarly, see the decision of the Conseil d'État: Fédération des syndicats professionnels des cheminots, S, 1937, III, 102. Only if the enabling act (e.g., the French customs act of July 9, 1937, Art. III) makes ratification a condition of validity would non-ratification within the time limit provided by the statute affect the validity of the decree. During the parliamentary debate on the last French enabling act (December, 1939), the finance commission of the Chamber proposed that the decree laws should lose their validity if the parliamentary session following their issuance should conclude without ratifying them. Daladier opposed the amendment and it failed. See the report of the session in Le Temps of Dec. 2, 1939.

34 This last is largely an academic question and has evoked considerable discussion in legal literature. It is treated in full by Duguit, L., in “Des règlements faits en vertu d'une compétence donnée au gouvernement par les législateurs,” in Revue du Droit Public, Vol. 41 (1924), pp. 313–349.Google Scholar See also Jèze, quoted supra.

35 (1) Coudert and Arrighi, quoted supra. (2) Fédération des syndicats professionnels des cheminots, quoted supra. (3) Olphe-Gaillard, , Recueil des arrêts du Conseil d'État (R), 1937, p. 304.Google Scholar The fact that the costs of the supervision of private insurance companies are eventually borne by the companies themselves did not lead the Conseil d'État to invalidate pensioning of state insurance inspectors as an economy measure merely because their salaries are formally paid out of general government funds. (4) Ramarony, R, 1938, 252. Rapid and simplified expropriation procedures introduced by decree under the Laval enabling act of June 8, 1935, reduce administrative costs and are therefore held to come under the aims of the enabling act. Additional cases may be found in the Initialed Commentary to S. 1937, III, p. 97.

36 R 1936, p. 817, Ville de Strasbourg, approving for these reasons the appointment of state officials to the Strasbourg Hospital and Welfare Commission. See also R 1936, p. 509, Ville de Suresne, where the reform of the municipal accounting system was approved on the same argument.

37 Besides the case quoted above (Amicale des anciens combattants), there is the case Union des véhicules industrielles, S. 1937, III, p. 97. Here the government introduced extensive regulations on road traffic. One section contained detailed rules about the right of way for heavy trucks. While upholding the general features of this decree, the Conseil d'État was unable to find a connecting link between rules about right of way and the alleviation of the country's financial burden, and therefore voided that section. Only in one set of cases, where the admissibility of municipal enterprises was in question, the Conseil d'État refused to acknowledge the validity of governmental decrees issued in pursuance of enabling acts and sanctioning such enterprises; but even in this case, characteristically enough, this was done by interpreting, or rather misinterpreting, and not by invalidating, the decrees in question. Chambre syndicale de commerce en détail de Nevers, and Giaccardi, S. 1931, III, p. 73, with commentary by Alibert. Zénard, S. 1934, III, p. 105, Tesnière, S. 1935, III, p. 63, both with commentary by Mestre. Chouard, S. 1936, III, p. 17. See also Waline, , Manuel élémentaire de droit administratif (Paris, 1936), p. 243et seq.Google Scholar, and Sharp, W. R., in Anderson, W. (ed.), Local Government in Europe (New York, 1939), p. 167.Google Scholar

38 The whole doctrine in both its German and French versions is fully analyzed and criticized in de Malberg, Carré, Contribution a la théorie générale de l'État (Paris, 1920), Vol. 1, p. 285 et seq.Google Scholar See also Schmitt, C., “L'évolution récente du problème des délégations législatives,” in Introduction à l'étude du droit comparé (Paris, 1938), Vol. 3, pp. 200–210Google Scholar (translated from the German). Its application to the 1924 Poincaré enabling act is to be found in Rolland, L., “Le projet du 17.I. et la question des décrets-lois 1924,” Revue du Droit Public, Vol. 41 (1924), pp. 42–74.Google Scholar

39 See, for example, Rolland, op. cit., p. 61.

40 Barthélemy-Duez, , Traité de droit constitutionnel (Paris, 1933), p. 763.Google Scholar

41 Hauriou, op. cit., p. 239. See the discussion of this point in Loewenstein, K., “The Demise of the French Constitution of 1875,” in this Review, Vol. 34 (1940), pp. 892–893.Google Scholar

42 Law of February 25, 1875, Art. 3, and July 18, 1875, Art. 8.

43 On the constitutional development of legislative omnipotence in parliamentary democracy, Smend, Rudolf, Die preussische Verfassungsurkunde im Vergleich mit der belgischen (Göttingen, 1904)Google Scholar is still of considerable value.

44 Duguit, op. cit., p. 315. We give the full formula elaborated by Hauriou because it exemplifies the attempt to unite the need for delegation with the preservation of clear distinctions between the spheres of the executive and the legislative: “The delegation of the forms of power is impossible, but the delegation of fields of activity is permissible, with the proviso that the power to whom the activity is delegated rules under the forms appropriate to itself. Hauriou, op. cit., p. 265.

45 de Malberg, Carré, quoted supra, and still better the very lucid exposition of his ideas in his later work, La loi, expression de la volonté générale (Paris, 1931).Google Scholar

46 La loi …, pp. 17–18. That this general will in itself is a fiction, Carré has never denied. See “Considérations théoriques surla combination du referendum avec le parlementarisme,” Revue du Droit Public (1927), pp. 225–244, and La loi …, pp. 214–222.

47 La loi …, p. 37.

48 The report to the President accompanying the publication of his decree, J. O. of July 30, 1939, tries to justify the encroachment upon the rights of Parliament by arguing that the question of a possible extension by decree was discussed during the debate on the enabling act of March 19, and that in voting the enabling act the majority automatically acquiesced in this measure beforehand.

49 Guetzévitch, B. Mirkine, “Pleins pouvoirs sous le régime parlementaire,” in Annales de l'Institut de Droit Comparé (Paris, 1938), Vol. 3, pp. 69–86Google Scholar, and the same in “Le régime parlementaire dans les constitutions européennes d'après guerre,” in Annuaire de l'Institut International du Droit Public (Paris, 1936), pp. 39–85. See also Lacharrière, op. cit., p. 148.

50 Cf. also the exhaustive treatment of English delegation practice in Jennings, W. I., Parliament (Cambridge, 1939), pp. 451–492.Google Scholar

51 We shall not discuss Mr. Mirkine Guetzévitch's argument in so far as it refers to the theories of the separation of powers, which he declares obsolete. The Panama Refining Co. and the Schechter Poultry Corp. cases (293 U.S. 388 and 295 U.S. 495) show that even an obsolete theory may sometimes celebrate a revival of some momentum. It is sufficient to emphasize once again that Carré de Malberg, the least separationist of all French theorists, arrives at substantially the same conclusion about the unconstitutionality of a general delegation of powers as the authors who follow more separationist lines (see his exposition in Théorie Générale …, Vol. 2, p. 94 seq.).

52 These arguments are stressed in the Belgian literature. See Buttgenbach, op. cit., p. 128, and Speyer, H., “Les dangers des pleins pouvoirs,” in Le Flambeau (1934), pp. 641–649.Google Scholar

53 Incidentally, even from a strictly legal point of view, Parliament could not undo the decree legislation, since obligations entered into and rights created under the decree laws would have to be upheld. On these very intricate questions, see Duguit, op. cit., p. 345 seq.

54 Guetzévitch, Mirkine, Annuaire …, pp. 73, 76.Google Scholar

55 The different points of view are brought forward clearly in Laski, H. J., Parliamentary Government in England (New York, 1938)Google Scholar, on one side, and Friedrich, C. J., “Democracy and Dissent,” Political Quarterly, Vol. 10 (1939), pp. 571–582CrossRefGoogle Scholar, on the other.

56 As this article, written before the French débâcle, goes to press, the Third Republic has succumbed under Hitler's war machine. Important as the constellations of foreign policy and the fortunes of war may have been, it seems safe to assume that internal developments had their full share in the downfall of France as a sovereign state. The evisceration of democracy which had taken place with increasing tempo since the end of the Popular Front intermezzo left the country with a considerably weakened political structure in the gravest moments of its history. Whatever may be the changes that the remaining democracies shall have to undergo in their struggle for survival, the French example, coming eight years after the German Praesidialregierung of Bruening and Papen, shows that the unlimited decree-rule of a constitutional government with a dubious popular or parliamentary basis serves only as an intermediate station on the road to complete authoritarianism.

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