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I. The Final Text and its Prospects

Published online by Cambridge University Press:  02 September 2013

Stanley H. Hoffmann
Stanley H. Hoffmann
Affiliation:
Harvard University
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Extract

The crucial feature of the period 1946–1958 in France, in many respects, has been the contrast between the changes which have occurred in French society and the performance of a political system which seemed to repeat and to magnify the vices of the Third Republic's last years. On the one hand, the image of a static France obstinately clinging to protectionism, to a pastoral or artisanal ideal, to the security afforded by restrictive practices and state favors, was becoming obsolete. On the other hand, the political system appeared unable either to deal with the tensions, economic growth and change created in society, or to define a coherent policy for overseas affairs.

Type
The French Constitution of 1958
Information
American Political Science Review , Volume 53 , Issue 2 , June 1959 , pp. 332 - 357
Copyright
Copyright © American Political Science Association 1959

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References

1 See Sawyer, John, “France's New Horizon,” Yale Review, Winter 1959, pp. 161–173Google Scholar.

2 See Aron, Raymond, “The Fifth Republic,” Encounter, December 1958, pp. 11–17Google Scholar.

3 On these proposals see: “La revision constitutionnelle devant le Parlement,” Revue du Droit Public, Jan.-Feb. 1958, pp. 81–91Google Scholar, and Berlia, Georges, “La crise constitutionnelle de mai-juin 1958”, Revue du Droit Public, Sept.-Oct. 1958, pp. 918–929Google Scholar.

4 See Vedel's, Georges report to the Comité d'Etudes pour la République: “L'instabilité gouvernementale,” published as a supplement to Revue Banque et Bourse, No. 130 (May 1956)Google Scholar, and Duverger's, Maurice articles in Le Monde, April 12–13, May 6, May 13, June 12, 1956Google Scholar. Both schemes are discussed by Goguel, François, “Vers une nouvelle orientation de la réforme constitutionnelle,” Revue Française de Science Politique, Vol. 6, No. 3 (July-Sept. 1956), pp. 493–507CrossRefGoogle Scholar.

5 Aron, Raymond, “Electeurs, partis et élus,” Revue Française de Science Politique, Vol. 5, No. 2 (April-June 1955), pp. 245–266CrossRefGoogle Scholar, at p. 264.

6 Ces princes qui nous gouvernent (Paris, 1957), p. 173Google Scholar.

7 La nouvelle constitution (Tours, 1958), p. 3Google Scholar.

8 For a similar argument, see Paul Coste-Floret's parliamentary report (Assemble Nationale, session ordinaire de 1956–1957, annexe au procès verbal de la Séance du 26 mars 1957), No. 4663, pp. 1–5.

9 La nouvelle constitution, p. 4. See also Debré's April 1944 analysis of “the French constitutional problem” in Mirkine-Guetzévitch, B. et Michel, H., Les idées politiques et sociales de la Résistance (Paris, 1954), pp. 207 ff.Google Scholar

10 La République et son pouvoir (Paris, 1950), p. 93Google Scholar.

11 This is the key theme of Debré's Ces princes qui nous gouvernent; see also de Gaulle's, General speeches in La France sera la France (Paris, 1951), especially pp. 51–60Google Scholar.

12 In an interview to Le Monde, August 8, 1958, Debré stressed this point and contrasted the constitutional draft with the suggestions put forward by certain political leaders of the Fourth Republic, which would have guaranteed the cabinets a certain time span during which they could not have been overthrown.

13 It is important to remember that in the Constitution itself the order of chapters is quite the reverse: the President of the Republic is dealt with in ch. 2, the cabinet in ch. 3, Parliament in ch. 4 only. For translations of the new Constitution, see either the text published by the French Embassy's information service in New York or the text published by Blackwells and written by Peter Campbell and Brian Chapman.

14 Journal Officiel, Débats Parlementaires, Assemblée Nationale, Année 1958–1959, p. 77Google Scholar.

15 On this distinction see Vedel, Georges, “Les rapports du Législatif et de l'Exécutif,” Revue Française de Science Politique, Vol. 8, No. 4 (Dec. 1958), pp. 757–781CrossRefGoogle Scholar.

16 Journal Officiel, loc. cit., pp. 77–8.

17 It must be assumed that a cabinet which obtains a plurality although not an absolute majority of the members of the Assembly will be considered to have been approved, as under the 1954 revision of the 1946 Constitution.

18 In addition to Art. 23 of the Constitution, see Ordonnance No. 58-1099 of Nov. 17, 1958 (Journal Officiel, Nov. 18, 1958, p. 10334Google Scholar) and Ordonnance No. 58-1065 of Nov. 7, 1958 (Ibid., Nov. 9,1958, p. 10128). If the suppléant resigns, a by-election must take place.

19 On the “rush for portfolios” under the Fourth Republic, see Dogan, Mattéi and Campbell, Peter, “Le personnel ministériel en France et en Grande-Bretagne,” Revue Française de Science Politique, Vol. 7, No. 2 (April-June 1957), pp. 313–345CrossRefGoogle Scholar, esp. at pp. 323–326.

20 See Williams, Philip, Politics in Post-war France, 2d ed. (London, 1958)Google Scholar, ch. 14.

21 See Art. 51 of the new Standing Orders of the National Assembly and the statement of the rapporteur of the temporary Standing Orders, M. Fréderic-Dupont, about the suppression of such dilatory devices as the motion préjudicielle and motion d'ajournement: Journal Officiel, Débats Parlementaires, Assemblée Nationale, Année 1958–9, pp. 92 ff, 124, 147, and 705.

22 See Ordonnance No. 58-1066 of Nov. 7, 1958 (Journal Officiel, Nov. 9, 1958, p. 10128Google Scholar) for a few exceptions to the rule. In 1955, the National Assembly had already introduced the rule of personal vote in confidence and investiture votes: see Solal-Célîgny, J., “Le question de confiance,” Revue du Droit Public, March-April 1956, pp. 299–329, at pp. 304–310Google Scholar.

23 Under Art. 32, the President of the National Assembly is elected for the duration of the legislature; the President of the Senate is elected after each partial re-election of the Senate.

24 Art. 1 of the new temporary Standing Orders distinguished between “political groups,” which must submit a political statement defining their programmes to the President of the Assembly, and “administrative groupings” which must also have at least 30 members, but which are not obliged to submit such a statement. One of these groupings is a conglomeration of deputies of various Center parties, none of which obtained more than 30 seats in the elections of Nov. 23–30, 1958. Another administrative grouping comprises most of Algeria's deputies. A number of deputies, including the ten Communists, belong to no group or grouping. See Journal Officiel, Débats Parlementaires, Assemblée Nationale, Année 1958–9, pp. 96 and 168 ff. Art. 19 of the final Standing Orders, voted in June 1959, recognizes only “political groups” and individual deputies “affiliated” to such a group: ibid., p. 616.

25 See Goguel, Francois and Galichon, Georges in: “Le travail parlementaire en France …,” Revue Française de Science Politigue, Vol. 4, No. 4 (Oct.-Dec. 1954), pp. 674–708 and 761–792Google Scholar. See also Michel Debré, “Trois caractéristiques du régime parlementaire francais,” ibid., Vol. 5, No. 1 (Jan-Mar 1955), pp. 21–48.

26 Under Ordonnance No. 58-1097 of Nov. 15, 1958 (Journal Officiel, Nov. 16, 1958), the Senate is elected for nine years instead of six as previously; one-third of its members are to be elected every three years. Although the Senate has no political powers as such, Art. 49 of the Constitution allows the Prime Minister to ask the Senate to approve a statement of general policy: thus a cabinet in trouble with the National Assembly could look to the Senate for political support. A decree of Dec. 2, 1958 indicates that in public ceremonies the President of the Senate comes immediately after the President of the Republic and the Prime Minister, and before the President of the National Assembly. It is also the President of the Senate who replaces the President of the Republic in any case of temporary incapacity of the Chief of State to exercise his functions.

27 See Galichon, op. cit., above, note 25.

28 The last such delegation was the most sweeping: under law No. 58-520 of June 3, 1958 (Journal Officiel, June 4, 1958, p. 5327Google Scholar), the cabinet of General de Gaulle received the power to “take by decrees during a period of six months those legislative measures which national recovery requires.” It was specified that these decrees could not affect certain basic freedoms.

29 See Charpentier, Jean, “Les lois-cadres et la fonction gouvernementale,” Revue du Droit Public, March-April 1958, pp. 220–270Google Scholar.

30 Civil rights and the fundamental guarantees of public liberties; the obligations imposed by national defense; nationality, the legal capacity of persons, marriage contracts, inheritance and gifts; the determination of and penalties for crimes and misdemeanors, criminal procedure, amnesty, the creation of new categories of jurisdiction and the status of magistrates; taxes and currency; the electoral system of legislative and local assemblies; the creation of new kinds of public institutions; the fundamental guarantees of civil servants; nationalizations and de-nationalizations, are all within the legislative domain. It is a much longer list than that of the first draft submitted to the Constitutional Consultative Committee. For a comparison and for the Committee's proposals, see Prélot, Marcel, Pour comprendre la nouvelle Constitution (Paris, 1958), pp. 100–107Google Scholar.

31 This is the case in the following areas: the general organization of national defense; the administration, powers and resources of local units; education; property rights and civil and commercial obligations; employment, unions and social security; national planning.

32 On this point see Galichon, op. cit., pp. 824 ff, and Lidderdale, D. W. S., The Parliament of France (London, 1957)Google Scholar, ch. 9.

33 The new Standing Orders of the National Assemblies (Art. 98–9) ban such counter-projects: Journal Officiel, Débats Parlementaires, Assemblée Nationale, Année 1958–1959, p. 122Google Scholar.

34 Under Art. 83 of the new Standing Orders, such ad hoc committees will be composed of 30 members, of whom no more than 15 can belong to the same permanent committee. Ibid., pp. 620–1.

35 On the 1954 revision see Roy L. Macridis in this Review, Vol. 50, No. 4 (Dec. 1956), pp. 1011–1022.

36 Similarly, under Art. 47, if the National Assembly has not finished its first reading of the budget within 40 days, the cabinet brings the bill before the Senate.

37 On the Constitutional Council, see Ordonnance No. 58-1067 of Nov. 7, 1958 (Journal Officiel, Nov. 9, 1958, pp. 10129–31Google Scholar). The President of the Republic and the Presidents of the two houses appoint three members each. The Councillors must swear not only to keep their discussions and votes secret, but also to take no public stand on matters which fall within the Council's jurisdiction. This might be one of the reasons why no law professor has been appointed to the Council. Some of the new Councillors' acquaintance with public law is dubious, to say the least (see its composition in the Journal Officiel, Feb. 21, 1959).

38 Gen. de Gaulle in his Paris speech of Sept. 4, 1958: Le Monde, Sept. 6, 1958, p. 3Google Scholar.

39 La nouvelle Constitution, op. cit., p. 16.

40 Under Ordonnance No. 58-1136 of Nov. 18, 1958 (Journal Officiel, Nov. 29, 1958, p. 10687–89Google Scholar) the President makes many more such appointments than under the Fourth Republic.

41 Ordonnance No. 58-1271 of Dec. 22, 1958 (Journal Officiel, Dec. 23, 1958) reduces the powers the High Council had under the Fourth Republic.

42 Debré, , La nouvelle Constitution, p. 16Google Scholar.

43 Prélot, op. cit., p. 61.

44 In the senatorial college of the Fourth Republic (Duverger, , Droit Constitutionnel et Institutions Politiques, Paris, 1955, pp. 474 ffGoogle Scholar), only the municipal councils of communes with more than 45,000 inhabitants elected additional delegates (1 for every 5000 above 45,000). With the new system, according to a study in Esprit, Nov. 1958, pp. 733–734Google Scholar, the delegates of communes of less than 1000 inhabitants represent 25.5 per cent of the population and 42.1 per cent of the presidential college; delegates of cities of more than 60,000 represent respectively 21.3 and 11.4 per cent. The Seine Department, which has about one-ninth of France's population, had 6409 delegates in a college of 76,310 for metropolitan France, i.e., about 8.5 per cent.

45 See Ordonnance No. 58-1064 of Nov. 7, 1958 (Journal Officiel, Nov. 9, 1958, pp. 10126–28Google Scholar).

46 The referendum must be proposed to the President by the cabinet during parliamentary sessions, or by a joint resolution of the two houses.

47 Since the electoral system is to be dealt with by ordinary law, under Art. 34, it is not clear whether a bill on that subject could be submitted to a referendum.

48 Contra: Friedrich, C. J., “The New French Constitution in Political and Historical Perspective,” Harvard Law Review, Vol. 72, No. 5 (March, 1959), pp. 801–837CrossRefGoogle Scholar.

49 Under Art. 89, when the President decides to submit an amendment passed by both houses to Parliament convened in Congress, the proposed amendment does not have to be submitted to a referendum (which is the normal procedure for revision). But the Congress must adopt the amendment by a majority of 3/5. The text does not say whether it could still be submitted to a referendum if the Congress fails to muster such a majority.

50 Here is the text of Article 16, in the French Embassy's translation:

When the institutions of the Republic, the independence of the nation, the integrity of its territory or the fulfillment of its international commitments are threatened in a grave and immediate manner and when the regular functioning of the constitutional governmental authorities is interrupted, the President of the Republic shall take the measures commanded by these circumstances, after official consultation with the Premier, the Presidents of the assemblies and the Constitutional Council.

He shall inform the nation of these measures in a message.

These measures must be prompted by the desire to ensure to the constitutional governmental authorities, in the shortest possible time, the means of fulfilling their assigned functions. The Constitutional Council shall be consulted with regard to such measures.

Parliament shall meet by right.

The National Assembly may not be dissolved during the exercise of emergency powers [by the President].

51 See the study in Esprit, mentioned in n. 44; Prélot, op. cit., pp. 61–3; Enterprise, No. 159 (Sept. 20, 1958); Vedel, Georges in Le Monde, July 20–1, 1958Google Scholar; Duverger, , Demain la Republique (Paris, 1958)Google Scholar.

52 See the Coste-Floret report, above, n. 8.

53 See the Preamble, Art. 1 and 86.

54 Agreements between the Republic and the member states shall determine how the participation is to take place.

55 Ordonnance No. 58-1254 of Dec. 19, 1958 (Journal Officiel, Dec. 20, 1958, pp. 11455Google Scholar), which deals with the Council, merely repeats the constitutional formula of Art. 82.

56 Ordonnance No. 58-1255 of Dec. 19, 1958, ibid., pp. 11455–6.

57 The Journal Officiel de la Communauté of May 15, 1959, indicates that at present the execution of common decisions is indeed entrusted to the High Commissioners, who represent the President in the member states.

58 Ordonnance No. 58-1236 of Dec. 19, 1958, ibid., pp. 11457–8, completing Art. 84 of the Constitution.

59 See for instance Duverger, Maurice, Demain la République, p. 15Google Scholar.

60 Espoir et peur du siècle (Paris, 1947), p. 144Google Scholar.

61 See Aron, Raymond, “Rénovation de la France,“ Preuves, No. 96 (Feb. 1959), pp. 3–13Google Scholar.

62 Ces princes qui nous gouvernent, pp. 105–106. Under the Fourth Republic non-parliamentarians could become ministers but they almost never did: see Appendix III in Philip Williams, op. cit. The fear expressed by some, that in the new regime members of the Parliament would hesitate to accept a cabinet post because of the incompatibility rule has certainly not been vindicated so far.

63 Ces princes qui nous gouvernent, passim, and especially pp. 7–9.

64 For a detailed analysis of these election results, see Kirchheimer, Otto, “France from the Fourth to the Fifth Republic,” Social Research (Winter 1958), pp. 379–414Google Scholar.

65 Only 131 of the 537 metropolitan deputies of the last Assembly of the Fourth Republic were reelected, according to Le Monde, Dec. 2, 1958. The new Assembly will have only 7 workers and employees instead of 58, as a consequence of the reduction in the number of Communist seats from 145 to 10. There will be fewer civil servants (92 instead of 132), fewer peasants (52 instead of 66), about the same number of lawyers (57 instead of 58) and doctors (37 instead of 38), but more members of other professions (54 instead of 43), more “cadres” (60 instead of 46), more businessmen and shopkeepers (74 instead of 65). The rise of the new notables has been studied by Priouret, Roger in La République des Deputés (Paris, 1959), pp. 240 ff.Google Scholar

66 The parliamentary debate on the adoption of the new Standing Orders of the National Assembly has shown that the UNR group was favorable to rules which would restrict the Assembly's role even more stringently than the Constitution itself, and strenuously opposed proposals designed to increase this role. See Journal Officiel, Débats Parlementaires, Assemblée Nationale, Année 1958–1959, at pp. 93, 118, 142, 145, 150, 706 ff., 742 ff.Google Scholar

67 See in particular Mendès-France, Pierre, La politique et la vérité (Paris 1958)Google Scholar, introduction and part IV.

68 The collections of the Mendesiste weekly L'Express and of the pro-Gaullist weekly Carrefour for the period May 1958-January 1959 provide striking illustrations of these tendencies.

69 See Aron's, Raymond remarks: “En un combat douteux,” in Le Monde, Sept. 21, 1958Google Scholar; also Lavau, Georges, “La réforme des institutions,” Esprit, Sept. 1958, pp. 230–257Google Scholar.

70 Duverger, , Demain la République, pp. 21 ffGoogle Scholar; Vedel, , L'instabilité gouvernementale, pp. 7–8Google Scholar.

71 Debré himself haa long been the advocate of a scrutin majoritaire à un lour: see La Républiqice et ses problèmes (Paris 1952), p. 45Google Scholar; Ces princes qui nous gouvernent, p. 93.

72 Wahl, Nicholas, Patterns of Government (New York, 1958)Google Scholar, chs. 16 and 19.

73 Ces princes qui nous gouvernent, p. 10. See also La République et son pouvoir, p. 130 and pp. 162 ff. Otto Kirchheimer's indictment of Debré in his article mentioned above (n. 64) is quite unfair in this respect.

74 For instance: the deposition of the Sultan of Morocco in August, 1953; the arrest of five Algerian rebel leaders flying a Moroccan plane in September, 1956; the bombing of the Tunisian village of Sakhiet in February, 1958.

75 See Ces princes qui nous gouvernent, pp. 164 ff.

76 See his unmistakably clear warnings addressed to Parliament in his message to the National Assembly (Le Monde, January 17, 1959)Google Scholar, and in his press conference of March 25 (ibid., March 27, 1959).

77 See Weber, Eugen, “La fièvre de la raison: Nationalism and the French Right,” World Politics, Vol. 10 (July, 1958), pp. 560–578CrossRefGoogle Scholar.

78 Among the first measures agreed upon by the Executive Council of the Community figured the decision to have a single diplomatic service and a single army—France's own (Journal Officiel de la Communauté, February 15, 1959). It was later decided that personnel of the various states could participate in French diplomatic missions.

79 Aron, Raymond, in Encounter, No. 63 (Dec. 1958), p. 16Google Scholar; Philip, André in Preuves, No. 94 (Dec. 1958), p. 20Google Scholar.

80 On these points, see Prélot, op. cit., pp. 62–3. Siegfried, André, De la IVe a la Ve République (Paris, 1959), p. 285Google Scholar. Lavau, Georges, “La France attend encore une vraie réforme des institutions,” Cahiers de la République, No. 15 (Sept.-Oct. 1958), pp. 51–63Google Scholar at 54–5.

81 The new Standing Orders of the National Assembly thus decide (a) that the six permanent committees would divide the total membership of the Assembly among themselves; each one of these committees will thus be a little Parliament (Art. 36); (b) that these permanent committees will not merely be legislative bodies, but will also be “the organs which provide Parliament with the information it needs, to exercise its supervision” (Art. 142); (c) that propositions de résolution—expressions of Assembly wishes and suggestions to the cabinet—will continue to be allowed as long as they to not tend to increase expenditures, to decrease resources or to challenge the cabinet's responsibility (Art. 81–2). The temporary Standing Orders had also created a new procedure of oral questions followed by a debate which could end with the vote of a proposition de résolution. M. Debré objected vigorously and after a heated debate the Assembly gave in: there is to be no vote after such a debate (Art. 133 of the final Standing Orders; see Journal Officiel, Débats Parlementaires, Assemblée Nationale, Année 1958–1959, pp. 138–142, 556–563, 706–715, 742–752Google Scholar). The Senate, which had adopted a similar procedure, refused to give in (ibidem, Sénat, Année 1958–1959, pp. 203–4), but its decision has been declared unconstitutional by the Constitutional Council.

82 The use of the emergency powers of Art. 16 by the President in case of a clash with Parliament seems rather difficult, since when these powers are used “Parliament meets by right.” Should the President dissolve the National Assembly first, the constitutional crisis would amount to a constitutional violation and to a breakdown of the system.

83 See Vedel, , L'instabilité gouvernementale, pp. 17–18Google Scholar; Duverger, , Demain la République, pp. 76–7Google Scholar.

84 Rapport sur la situation financière (Paris, 1958), p. 16Google Scholar.

85 On these distortions see Kirchheimer, op. cit., and Bodin, Louis, “Hier, La République?”, Esprit, Jan. 1959, pp. 183–193Google Scholar.

86 Aron, Raymond in Preuves, No. 96, Feb. 1959, p. 13Google Scholar.

87 See in particular Michel, DebréLa Mort de l'Etat républicain (Paris, 1947)Google Scholar, La République et ses problèmes, pp. 46–7. See also Hoffmann, S., “The areal division of powers in the writings of French political thinkers,” in Maass, Arthur (ed.), Area and Power (Glencoe, 1959), pp. 113–149Google Scholar.

88 George Lavau believes tha t a presidential system would be dangerous for French democracy as long as centralization remains what it is today: Cahiers de la République, No. 15 (Sept.-Oct. 1958), pp. 61–3Google Scholar.

89 Recent measures include: the creation of “urban districts” for the joint management of public services by neighboring communes; a weakening of central control on departmental administration (departmental budgets no longer need state approval), and on communes with fewer than 9000 inhabitants (Le Monde, Jan. 4–5, 1959, p. 41Google Scholar).

90 See Ces princes qui nous gouvernent, pp. 161 ff, and Merle, Marcel, “Réflexions sur le problème du civisme,” Revue Française de Science Polilique, Vol. 8 (Dec. 1958), pp. 782–802CrossRefGoogle Scholar. Since this essay was written the following studies have appeared in France: the March 1959 issue of the Revue Française de Science Politique, devoted to the Constitution, and Duverger, Maurice, Droit Constitutionnel et Institutions Politiques, Vol. II: le régime politique français (Paris, 1959)Google Scholar.

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