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6 Comp. L. Rev. 1 (2015)

handle is hein.journals/complv6 and id is 1 raw text is: INTERPRETIVE AND LEGISLATIVE NORMS IN FRANCE AND IN THE UNITED STATES JOHANN MORRI The distinction between interpretive and substantive (or legislative) norms is a common feature of French and American administrative law. In both legal systems, the distinction, apparenly simple, has proved extremely difficult to handle. The article aims at presenting and illustrating the basic yunctions of the distinction in the two countries, comparing the efforts made to define the contents of the distinction by courts and legal scholarship. After reaching the conclusion that neither French nor American administrative have come up with a reasonably satisfying criteria of distinction, the article makes the case that, f [the distinction is still in use, it must be because it serves fundamental purposes of each of these legal sstems. It argues that the underlying and central function of the distinction is not the same in the two legal systems. In France, the central/unction of the distinction is a non-delegation issue. In the USA, its main role is to define and/or limit the scope of the notice and comment procedure, one of the most particular features o American administrative law. INTRODUCTION- In 1962, a renowned French administrative law scholar published an article in which he imagined the comments of a Native American discovering the French administrative law system during a journey to France'. By using an old literary device of the French Enlightenment philosophers' (pretending to be a candid observer from a remote foreign country discovering France3), he tried to give a critical analysis of the French administrative law of his time. But except in the imagination of law professors, .. I am very grateful for the suggestions and comments made by Pr. Christopher Elmendorf (University of California, Davis-King Hall School of Law), and by Nicolas Hervieu, Serge Slama and Minming Wu. While these comments have extremely helpful, I am sole responsible for the views expressed in this article or for the errors it may contain. 1 Jean Rivero, Le huron au Palais Royal ou reflexions naives sur le recours pour exc&s de pouvoir, D. 1962 Chron. 37 2 In 1767, the French philosopher Voltaire published the satirical novel L'ingenu, in which he pretended to tell the story of a Huron -a member of the Wyandot Nation- transported in France in 1690. Needless to say that the depiction of Native Americans expressed in the novel is deprived of any accuracy. It is rooted in the prejudices of the time and, moreover, was intended as a literary artifact even at the time it was written. 3 In Persian Letters (1721), another French philosopher, Montesquieu, pretended to describe the impressions of two Persian noblemen traveling to France, in order to express its criticism of French society.

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