With her 1991 work entitled, La France de l’intégration. Sociologie de la Nation, Dominique Schnapper became well-known in the political sphere, leading to her appointment as an expert on various government commissions. In 2001, it led to her appointment by the President of the Senate to France’s Constitutional Council, following on from a recommendation made by Simone Veil.
Appointed for a term of nine years, she very early on decided to keep a diary of her experiences. She also advised her colleagues of her plan to use this as the basis of a sociological analysis. While none of her colleagues showed any real interest in her project, she notes, they did not try to dissuade her from it either.
Before 1958, which saw the birth of the 5th Republic, France had limited experience in the judicial review of legislation, apart from formal opinions issued by the Council of State, administrative court of last resort with respect to bills before their presentation to parliament. General De Gaulle set up the Constitutional Council as a way of imposing limits on the two parliamentary chambers. While the number of members (nine, in addition to former French presidents who remain life members) is not dissimilar to that of the United States Supreme Court, the resemblance does not go much further. In the French version, only a very small minority of members are lawyers. The French President and the presidents of the two parliamentary chambers share the power of appointing members, each making a nomination every three years. The majority of those appointed are politicians at the end of their careers, at times friends of the person appointing them. They are joined by a handful of senior civil servants, almost always including a member of the Council of State and, less often, an eminent school of law professor or someone close to the French president. Her book provides a clear and powerful sociography of their careers, together with some fascinating observations.
It provides a comprehensive, well-documented and at times technical overview of the evolution of this strange institution over the past 50 years. Up until 1969, while General de Gaulle was President of France, the Council was highly restrained. In 1962 it issued a very daring interpretation of the constitutional provision relating to referendums. It thereby authorised, presidential elections based on universal suffrage. However, soon after Charles de Gaulle’s death and as early as 1971, the Council broadened its scope and asserted its independence with a completely unexpected decision based on the Constitution’s preamble which has since been incorporated into the “bloc de constitutionnalité”.
In successive waves, the Council increased its visibility, notably when presided by the eminent Robert Badinter, and broadened its jurisdiction until the reforms of 2008 which made it possible for individual citizens to question the constitutionality of pre-existing laws. General de Gaulle’s original concept was thus overturned. This officially recognised club, initially set up to police a parliament suspected of adventurism, had become a rigorous government censor. At the same time, it approached the model of the German Federal Constitutional Court, entirely composed of lawyers. And yet, strangely enough, the French Council has never had so few lawyers on its bench since the last round of three appointments: three politicians.
Running throughout this historical account is no-frills sociological thread that some might consider impressionistic. However, in a series of successive steps, we are able to see another story unfold, that of the creation of an institution by the socialisation of its members and the growing weight of doctrine. We learn that Council members were more than often reluctant to extend their powers or the consequences of their decisions. We also discover former politicians who took up office with a desire to impose change but were soon disappointed by both the limits and the modesty of their position within the official ranks. They would go on to interiorise the norms of their organisation. Senior civil servants took up office with a more realistic view of their position and better prepared for their role. Despite being in the minority, they were able to socialise former ministers to such an extent that, with time, no reference was made at all to their former titles and positions. This explains the author’s predilection for calling this group a club. Indeed, in other cases of bodies made up of varied individuals, for example a body made up of elected and nominated members, we also see that the group’s identity rapidly expunges their different backgrounds; any eventual cleavages occur along different lines. More generally speaking, these effects can be added to many others which, since Seymour Liebermann’s classic psycho-sociological analysis, have shown how changes in the role in an organisation lead to changes in the attitudes of its members. Within France’s senior civil service, Ezra Suleiman has shown how becoming a ministerial advisor changes the perspective of those who only the day before were highly critical of actions taken by ministerial cabinets.
In a decidedly central chapter, “A Very Political Jurisdiction”, Dominique Schnapper highlights with literary aplomb, the importance of Council members’ personal relationships with leading political personalities. Legally obliged to respect the confidentiality of their deliberations, she relies on debates from the past alluded to by former Council members. We can see the extent to which the Council surrounds itself with external advocates when a partial or more extensive invalidation appears inevitable. With respect to electoral issues, the Council requires both an extremely close result as well as the existence of major incidents with a high probability of having played an influential role.
We also learn that the division of powers with the Council of State is a source of concern and even thinly veiled criticisms. This should not be of surprise given the Durkheimian view that all organisations are watchful of their own interests.
If we follow the author’s arguments, we can see that doctrine is a reality that seems to have a sort of transcendental power, fully and firmly interiorised by Council members who become stout guardians of their organisation’s heritage. Certain confide that they felt obliged, out of respect for the doctrine, to make decisions contrary to their own beliefs or convictions. Referring to doctrine means admitting that the body of past decisions can be read in retrospect as a coherent whole. Year after year, such a principle becomes more and more self-fulfilling. In other words, a doctrine is a very specific group culture that acts as a foil against any contradictions. This occurs by a process that the author was able to observe and could in fact have conveyed even more clearly from its early beginnings.
The last chapter explores with elegance the idea of a double relativity, that of the law and that of the judge. To achieve this, it was necessary to call on both her legal and sociological skills. Her reflections on constitutional law and constitutional judges can be compared to the reflections on civil law, ground-breaking at the time, by Jean Carbonnier, a pioneer of legal sociology in his Flexible Droit.
In fine one reservation. The sociologist’s contribution would have been more convincing if her analysis of the role of the Council in the overall institutional system was conducted further on. However, this would have involved an entirely different research model, one that is not compatible with that of a participatory observer.
