Hierarchy of the standards

The hierarchy of the standards is a synthetic vision of the Droit developed by Hans Kelsen. It is about a hierarchical vision of the legal Normes.

Obviously, this hierarchy has direction only if its respect is controlled by a judge. There exist two types of control: by way of exception or way of action.

  • control by way of exception is done by the ordinary judges. The question of the unconstitutionality of a standard will be raised at the time of a precise litigation, and will be studied on this occasion, and this occasion only. In this case of figure, if the judge estimates that the controlled standard is unconstitutional, it will not apply it. However it will not be cancelled and the Jurisprudence thus created could not be followed by other courses, unless it does not emanate from the supreme jurisdiction. This type of control is used for example in the United States.

  • control by way of action utilizes a special body. This last will be able not only to draw aside the application of the unconstitutional standard but to also prevent any application definitively of it. It is the solution chosen in France, with creation in 1958 of the Constitutional council, which slices only on the constitutionality of the laws before their promulgation.

Before the creation of the Constitutional council, the constitution was the supreme standard only in a theoretical way, the administrative judge not being able to allow itself to judge the constitutionality of a law (EC, 1936, Arrighi ).

That still poses problem nowadays. Indeed, the constitutional judge refuses to control the constitutionality of a law adopted by Référendum in the name of the popular Souveraineté. Moreover, control by way of action is the only possible one of the constitutionality of a law, jurisprudence Arrighi not having never been the subject of a reversal. Lastly, it was necessary to wait until in 1989 (EC, 1989, Arrêt Nicolo ) so that the Council of State accepts the absolute supremacy of the European standards on the posterior laws (while the Court of appeal accepted it since 1975: CH. mixed, May 24th, 1975, J. Vabres).

Description

This concept was developed by Hans Kelsen in order to “ release the right of its ideological and moral bases, to make only one technique of regulation of it, a pure technique with the service of the laic State ”.

According to this theory, any rule of Droit must respect the standard which is higher to him, thus forming an order arranged hierarchically. The more important they are, the less the standards being numerous, the superposition of the standards acquires a pyramidal form thus, which explains why this theory is called pyramid of the standards .

This order is described as statics because the lower standards must respect the standards which are higher to them, but it is also dynamic because a standard can be modified while following the rules enacted by the standard which is higher to him. The standard placed at the top of the pyramid being, in many legal systems, the Constitution.

This theory of the hierarchy of the standards can apply only for the Constitutions known as " rigides". In a State with Constitution " souple" , the Constitution is generally worked out, voted, and revisable by the usual legislative body, in the same way that an ordinary law. So these two standards have an identical legal authenticity and the law does not have thus to respect the Constitution. Contrary, in a State with constitution " rigide" , the Constitution will be worked out and/or voted by a specialized body (Government, work group), even adopted by popular Référendum. Its procedure of revision will also utilize a special body and/or the people, which have the originating constituent capacity. This is why it will have a particular legal force, higher than the other standards, which will have consequently to respect it.

Diagram in French right

  • the Bloc of constitutionality includes the Constitution of 1958, the preamble to 1946, the Déclaration of the Human rights and the Citizen of 1789, the Charte of the environment (since March 1st 2005), the Basic principles recognized by the laws of the Republic (cf: DC, 1971, Right of association ), as well as the constitutional principles extrapolated by the Constitutional council of one of these series of standards (Principle of the clearness and the intelligibility of the law, contractual freedom…). The term of " block of constitutionnalité" was created by the Senior Louis FAVOREU of the faculty of Aix-en-Provence. This expression translates the fact that the whole of the above mentioned standards are theoretically of the same level in the hierarchy of the standards.

  • the Bloc of conventionnality is consisted of the international law i.e. treaties and international conventions other than the habit (EC, June 6th 1997, Aquarone), but also (for France as for all the Member States of the European Union) of the Community legislation, i.e. the treaties and the secondary legislation, directives and regulations.

There exists in France a project of dematerialization of the normative production, but its perimeter defined in 2005 relates to only the laws and decrees, without including the circuit of the European directives, which in limit the range.

See: Solon project

Hierarchy of the standards and European right

An important doctrinal debate currently takes place as for the place in the hierarchy of the standards of the Community legislation in French Droit.

Indeed, a decision of the Constitutional council of June 10th 2004 Loi for confidence in the digital economy estimated that “ the transposition in internal rights of a Community directive results from a constitutional requirement to which it could be made obstacle only because of a provision contrary express of the Constitution ”.

All the question is to know a provision express what is called. The council does not aim the Bloc of constitutionality, and thus, it could be that the European right has a value higher than the constitution. At all events, this place in the hierarchy of the standards raises important debates, which could be distinct only in comparison with later jurisprudence as well as future trend of the right européen.

Currently, jurisprudence grants a higher value of the Constitution on the international law in the order interns French: the stop of the Council of State of Parliament of October 30th 1998 Sarran, Levacher and others in addition pointed out this principle: “ the supremacy conferred by article 55 on international engagements does not apply in the internal order to the provisions of constitutional nature ”.

Remarks

  • the constitutional standards are at the top of the pyramid of the standards, but paradoxically constitute the base of it. Indeed a legal provision must be subjected to the hierarchically higher rule at the time of its coming into effect. In this way each body of being able is subjected to the standard higher than the standards than it can create. Thus the body holding the legislative power in its work of creation of laws is subjected to the constitution, the administrative capacity with the law, since the circulars are in lower part of the law in the hierarchy of the standards.

This situation is called Rule of law, which means that any natural person or morals, public or deprived, is subjected to the law, to begin with the State itself.

  • Maximilien de Robespierre as Saint-Just estimated unacceptable that one could use jurisprudence in a Démocratie, this one appearing to them an abnormal interference of legal on the legislature, and thus an attack with the principle of Séparation of the capacities. From where need for adopting standards of higher value (like are the Constitution, the law…)

  • jurisprudence having a very great value with the the United States, the judges are consequently logical there elected officials by the people, according to the States or the jurisdictions.

  • Since the Constitution is considered to be higher than the international law, of the international tensions is to be envisaged. It was the case for Cuba, which stated more not to agree to pay royalties to the reason that the fruits of the spirit were to be the property of all without restriction .

  • the supremacy of the treated S or international agreements on the law, even posterior, was marked in the arrèt Nicolo (EC, ESA, Oct. 20, 1989), thus giving up the theory of the " law-écran" , according to which the provisions of an act posterior with the treaty overrode the stipulations of the latter (EC, March 1st 1968, General trade union of the semolina manufacturers of France ). The Council of State then extended Nicolo jurisprudence to the derived Community legislation “” : superiority on the laws of the Community payments (EC, September 24th, 1990, Boisdet ), then Community directives (EC, ESA February 28th, 1992, S.A. International Rothmans France and S.A. Philip Morris France ). However, the superiority, in internal rights, of the Constitution on the treaties or international agreements (and thus its supreme place in the hierarchy of the standards) was reaffirmed (EC, ESA, October 30th 1998, Sarran and Levacher ). The jurisprudence of the Court of justice of the European Communities (CJCE, March 9th 1978, Simmental) however posed the principle of the primacy of the Community standards, original or derived, on “ all” the standards of internal rights, therefore even the national constitutions: for the time being, it is not the case of the French Constitution.

See too

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