The French Judicial Review

Published On: 19th March, 2024

Authored By: Gaana N
CMRU School of Legal Studies


“Judicial Review in France,” mainly through the founding of the Constitutional Council in 1958, examines the historical development and current relevance of France’s judicial review system. The essay highlights the Constitutional Council’s dual position as a judicial and political body as it charts the country’s transition from a heritage of parliamentary supremacy to the progressive acceptance of judicial review. The analysis highlights areas for improvement, including a more in-depth historical investigation, a closer look at political influences, comparative evaluations, coverage of contentious cases, and a more exhaustive investigation of transparency issues, even as it acknowledges the Council’s growing influence in recent years. Despite these drawbacks, the article provides an insightful analysis of France’s fundamental legal system and is a useful resource for academics, attorneys, and politicians.


The ability of the court to assess the constitutionality of acts taken by other arms of government, usually the legislature and administration, is known as judicial review. It ensures that legislation and government activities correspond with the supreme law, which is frequently a written constitution and acts as a vital check and balance in many legal and political systems. Protecting individual rights: Assures that the constitution’s basic rights are upheld by the laws.[1] Maintaining the Separation of Powers: Prevents any branch from going beyond what is allowed by the Constitution.[2]The development of judicial review in France, particularly through the Constitutional Council, has been a dynamic and significant process with roots dating back to the 19th century. In a legal and political system that has traditionally favored the supremacy of the parliament and legislative authority, France initially hesitated to subject its legislation to judicial scrutiny. This reluctance was deeply embedded in the belief that elected representatives should retain the ultimate authority in shaping the country’s laws. However, as the 19th century unfolded, France witnessed the gradual emergence of judicial review, primarily through the Council of State’s limited role in evaluating administrative actions. This early stage set the stage for the establishment of the Constitutional Council in 1958 during the Fifth Republic, marking a pivotal moment. The Constitutional Council was vested with the authority to review the constitutionality of both legislative acts and executive decrees, leading to an expansion of its role in safeguarding individual rights, interpreting the Constitution, and upholding the separation of powers. This transformation reflects an ongoing interplay between legislative and judicial authority in France, profoundly influencing the nation’s legal and political landscape.


“Judicial Review in France” by Louis Henkin offers a comprehensive analysis of France’s judicial review system, from its historical origins to its contemporary significance.[3] Henkin’s article, featured in Volume VI of the Journal of Law and Politics, serves as a valuable resource for those seeking a deeper understanding of the French judicial review framework.

The article begins with a historical exploration of judicial review in France, tracing its roots to the revolutionary ideals of the late 18th century. The pivotal role of the Declaration of the Rights of Man and the Citizen in 1789 is highlighted, which laid the groundwork for a hierarchy of legal norms, emphasizing the supremacy of fundamental rights. However, while acknowledging this early commitment to judicial review, the author also underscores the delay in its practical implementation. The Constitution of 1791 is recognized as the first to explicitly establish judicial review through the creation of the Tribunal de Cassation. Despite this development, the Tribunal de Cassation did not actively exercise its power, reflecting a historical hesitancy toward robust judicial review. Subsequent French constitutions, including those of 1795 and 1848, made mention of judicial review but failed to fully harness its potential. Nevertheless, the article points out that the Constitution of 1848 marked a significant turning point, as the Tribunal de Cassation began to actively practice judicial review.

The true transformation occurred with the Constitution of 1958, which established the Fifth Republic and gave birth to the Conseil Constitutionnel. This constitutional court, comprising nine members appointed by key political figures, was granted the authority to review laws both before and after enactment. The article provides a clear overview of the Conseil Constitutionnel’s powers and its crucial role in the French legal and political landscape.

A central theme is the dual nature of the Conseil Constitutionnel, which serves as both a judicial institution and a political entity. This duality sets it apart from many other constitutional courts worldwide. Moreover, the article emphasizes the Conseil Constitutionnel’s increasing activity in recent years and its far-reaching impact on various aspects of French society and governance. Decisions rendered by the Conseil Constitutionnel have touched on fundamental issues like individual rights, constitutional interpretation, and the separation of powers.


This analysis will delve into key aspects of the article, highlighting its contributions and implications for our comprehension of the French legal and political landscape.

Historical Evolution of Judicial Review:

This article traces the historical trajectory of judicial review in France. It begins with the revolutionary ideals of the late 18th century, specifically the Declaration of the Rights of Man and of the Citizen in 1789[4], which laid the groundwork for a hierarchy of legal norms. The article then highlights the gradual progression towards a formalized system of judicial review through various French constitutions, emphasizing the significance of the Constitution of 1958 in establishing the Conseil Constitutionnel as France’s primary constitutional court. This historical perspective illuminates the long journey towards a robust system of judicial review and its integration into the French legal framework.

The Role and Composition of the Conseil Constitutionnel:

A central focus of Henkin’s analysis is the role and composition of the Conseil Constitutionnel. The article provides a comprehensive understanding of how this institution operates. The Conseil Constitutionnel comprises nine members with appointments from key figures in French politics, ensuring a balanced representation. Its unique authority to review the constitutionality of laws both before and after enactment distinguishes it within the realm of constitutional courts.

The Dual Nature of the Conseil Constitutionnel

One of the article’s standout contributions is its exploration of the Conseil Constitutionnel’s dual role as both a judicial body and a political entity. Henkin adeptly captures the complex interplay between law and politics within the French legal system. This dual nature of the Conseil Constitutionnel underscores its exceptional significance, as its decisions carry not only legal weight but also profound political implications. This analysis sheds light on how the Conseil Constitutionnel occupies a distinct position in the French political landscape, shaping policy and governance.

Contemporary Relevance and Impact

The article convincingly argues that the Conseil Constitutionnel’s influence has grown significantly in recent years, with its decisions exerting a substantial impact on French law and society. This observation emphasizes the evolving dynamics of the French legal system and the increasing relevance of judicial review in contemporary France. The author’s analysis appreciates the Conseil Constitutionnel’s ongoing role in safeguarding individual rights, interpreting the Constitution, and upholding the separation of powers.

Assessment of the French System of Judicial Review

Henkin concludes his article with a balanced assessment of the strengths and weaknesses of the French system of judicial review. He rightfully recognizes the positive role played by the Conseil Constitutionnel in protecting individual rights and liberties, contributing to the preservation of democratic values in France. However, Henkin also addresses valid concerns regarding perceived political influences on the Conseil Constitutionnel’s decisions and the need for increased transparency.


The article overall has been well explained but while understanding the article some of the points must have been touched upon.

  1. Limited Historical Depth: Henkin’s history of judicial review in France covers a lot of ground but falls short of delving deeply into the complex political and historical factors that shaped the evolution of this practice. A more thorough historical investigation might improve our comprehension of the development of the French judicial review.
  2. The text makes reference to the Conseil Constitutionnel’s dual function as a political and judicial body, but it does not go into great detail on how political issues could improperly influence judicial judgments, thereby damaging the court’s independence.
  3. Lack of Comparative Analysis: A comparison with other nations’ judicial review systems might provide a more comprehensive understanding of the French system’s strengths and faults and identify particular features or areas in need of improvement.
  4. Limited Discussion on Controversial Cases: To highlight the effect and difficulties the court encounters, the article may benefit from covering certain contentious cases or rulings by the Conseil Constitutionnel.
  5. A more thorough investigation of transparency problems inside the Conseil Constitutionnel’s processes would give a clearer picture of the possible flaws. The article just briefly mentions transparency difficulties.
  6. A Study of the Policy Implications of the Court’s Decisions Would Strengthen the Article: The article largely focuses on historical and descriptive elements of judicial review in France, but it might be improved by looking at the policy implications of the court’s rulings, particularly in areas like civil liberties or social policy.
  7. Limited Examination of Legal Issues: A more thorough examination of current legal issues and scholarly discussions on their significance should be done.


“Judicial Review in France” is an in-depth analysis of the French system of judicial review. It serves as a valuable resource for scholars, legal practitioners, and policymakers seeking to understand the historical context, structure, and contemporary significance of judicial review in France. Henkin’s exploration of the Conseil Constitutionnel’s dual nature, its impact on French politics and law, and its strengths and weaknesses offer a comprehensive view of this essential aspect of the French legal system. This article is a testament to Henkin’s scholarly rigor and provides essential insights for comparative constitutional law and the functioning of constitutional courts.


“Judicial review in France” Published on HeinOnline

Journal: Journey of Law and Politics, Volume VI

Issn: 0022-2791


[1] Marbury v. Madison, 5 U.S. 137 (1803)

[2] Federalist No. 51, by James Madison

[3] Louis Henkin, _Judicial Review in France_

[4] National Constituent Assembly, Declaration of the Rights of Man and of the Citizen Adopted by the National Assembly during its Sessions on August 20, 21, 25, and 26, and Approved by the King 1789


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