Constitutional Law: Past Constitutions – Constitutional Genealogy

A modern constitution is only new in its appearance, in its expression, either as a foundation of a State or a society, or a rupture with the political and legal system which precedes it: there is no tabula rasa. In any event, the apparent newness of the constitutional text is often confused with its modernity. I.e. this supposed newness is entirely relative.

In fact, every constitution in force is the product of a history and is rooted in the past. In the first place, this is due to the fact that the constitutional text is not restricted to the limitation of the power of governments in the name of the preservation of the liberty of the governed. It also poses the question of the right to a political existence for a social group conscious of itself, in other words the right to the State of a nation or a people. Indeed, every nation which thus agrees to political and constitutional existence intends to be part of a genealogical continuity, of which the constitution is notably the reflection.  Beyond the potential rupture of the very organisation of political power which a constitution can represent, this genealogical continuity enables the connection of all unique constitutional experiences. This is how the constitutional tradition unique to a nation is created (for example the republican tradition in France).

Since the first appearance of constitutions in the 18th century, the history of States and peoples has also been composed of a very dense set of constitutional texts, the number of which varies according to the tribulations which affect them. It is this past constitutional corpus which we propose to study.

The idea is not to reconstruct this constitutional past. That will only repeat studies and analyses already carried out in the very context of the appearance of the texts in question. This past is past and the same thing applies to constitutional time as to time itself: it is irreversible. Furthermore, the abundance of documents makes this task almost impossible. We will therefore position this study from the perspective of present reality, in other words based on questions which the constitutional present is led to ask of the past and the responses which the ancient constitutional texts can give. These responses will therefore have no other object than to clarify the constitutions currently in force by giving them a historical meaning. They will also enable the establishment of continuities and discontinuities between the constitutional texts of a single country, but also between countries and continents. In the latter case, it is the influences at work which we will endeavour to establish or to re-establish.

That is why this project pertains more to constitutional genealogy than constitutional archaeology. In this regard, its methodology rests on the approach recently adopted by the textbook “Droits Constitutionnels Étrangers” (Paris, PUF, “Licence” collection, 2010): the aim is to understand how constitutions are formed from major founding traditions and what are their historical  roots and, as a result, their evolution.

There is no need to stress the scientific contribution of such a study of past constitutions, whether to better situate a country’s constitutional evolution, or to go beyond the traditional link between State and constitution in favour of a pan-constitutionalism or even a universal constitutional heritage.

At a time when we are witness to a certain splintering, or even perversion, of constitutional law – internationalism of constitutions, independence under international control, resurgence of the co-revolutionary doctrine of the historical constitution –, this study of past constitutions is part of a dialectic of the universal and of the particular through the illustration of a certain permanence of constitutional concepts and pooling of constitutive experiences.   


Administrative Law and Administrative Institutions: Changes in Contemporary Administrative Law

Research at IRENEE in administrative law is part of a global approach into the science of law, which aims to decompartmentalise the perspectives of fundamental legal research and or practical legal research as demonstrated in particular by IRENEE’s partnership with the Administrative Court of Appeal in Nancy. This global approach aims to develop adequate theoretical tools for the scientific study of positive law.

More precisely, the aim is to study the relations which tie public figures to other agents in administrative law, in a dynamic approach as expressed by the relativisation of contemporary administration. The Administration is now subject to movements that are more or less desired, which implicate it as a traditional organisational method for the management of administrative activity. The Administration is therefore in tune with a triple phenomenon: administrations find themselves voluntarily engaged in association movements with others, which modify their similar national or international environment, and particularly European; the administration adopts an attitude of imitation in the face of the private sector which leads to changes in structures and in methods of managing activities; and finally the administrative relationship is profoundly altered with the emergence of the idea of administrative citizenship, and more widely, the phenomena relating to administrative democracy.

This triple transformation in administration vis-à-vis the outside world, whether in its relationship with other administrations, with the private sector or with the administrative “citizen”, accentuates the relativisation of the very existence of administrative law. The result is a certain porosity of borders and it involves an examination of the simplification of administrative law vis-à-vis external models.