52 Acta Jur. Hng. 1 (2011)

handle is hein.journals/ajur52 and id is 1 raw text is: 

1216-2574/USD  20. 00                                                    ACTA JURIDICA HUNGARICA
 2011 Akademiai Kiad6, Budapest                                          52, No 1, pp. 1-18 (2011)
                                                                     DOI: 10.1556/AJur 52.2011. 1.1


The Preamble(s) of the French Constitution:
Content, Status, Uses and Amendment

Abstract. This article analyses the way of the French Constitutional Council, starting with its famous Association
decision in 1971, transformed a brief reference to historical declarations of rights in the thin Preamble of the
current French constitution (adopted in 1958) into a wide-ranging judge-made catalogue of fundamental rights.
This, combined with two important reforms of the procedure for submissions of statutes to the Constitutional
Council for review (in 1974 and 2008), are gradually establishing the Constitutional Council as an important actor
in the legislative process and a central body for the protection of human rights in France. The article also briefly
explores the scope and limits of this protection. It then discusses recent proposals for amending the Preamble. It
analyses the only amendment so far, namely the inclusion of a reference to the Charter for the Environment,
which aimed at providing a constitutional basis for the protection of environment, as well as other controversial
suggestions, such as those aiming at enabling positive discrimination measures towards minorities, the guarantee
of media pluralism, the protection of privacy and personal data and the respect of human dignity. It concludes on
the use and misuses of comparative law for constitutional reforms.

Keywords: constitutional reform, constitutional preamble, constitutional review, protection of fundamental rights,
comparative law

1. Introductory   remarks:   the 1958  Political Constitution,
   its Amputated Constitutional Judge and its Insignificant Preamble

As  is well-known,  France  has had  a tormented  constitutional history, going through  many
different political regimes, and no less than fifteen constitutions since the French Revolution
in 1789. This  is to say that

     the French  should  know  about  constitutions! One  can differ as to whether the history
     of France  should be considered  a fruitful garden of constitutional thought, a graveyard
     of  constitutional experiments,  a  muse   des  constitutions , or a minefield;  in any
     case  it is beyond  doubt  that the French  are rather experienced   in constitutions and
     constitutional changes.

     The  current constitution, which provides for the basic rules for France's Fifth Republic,
was  adopted  in 1958.  It is the longest lasting French  constitution after the constitutional
laws  of the Third Republic  (1875). It has been amended   twenty-four times.
     As  to the significance  of the Constitution  in French  political life, it is important to
recall that prior to 1958, the system  was  centered  on the  loi which was,  in the words  of
Jean-Jacques  Rousseau,  the expression  of the -volontd gdndrale  (general will).2 As such, it

     * Associate Professor, Central European University (Budapest), Department of Public Policy,
H-1051  Budapest, Ntdor u. 9.
E-mail: Grangermgceu.hu
     I van Nifterik, G.: French Constitutional History, Garden or Graveyard? European Constitutional
Law  Review (EuConst), 3 (2007) 3, 476.
     2 See also Art. 6 of the 1789 Declaration of the Rights of Man.

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