How ‘Liberal’ Democracies Attack(ed) Judicial Independence: An Anecdote from De Gaulle’s France

Abstract

It is no secret that former President Charles De Gaulle’s sympathy for judges-and arguably for law and lawyers more broadly-was rather limited. Statements such as “[i]n France the only Supreme Court is the people” or “[r]emember the following: there is first France, then the State and then, as long as these two other major interests are guaranteed, the law” have been attributed to him. While similar proclamations in any national context might raise some eyebrows, they are more problematic in a country that has been historically rather diffident towards judges and where the “government by judges” (le gouvernement des juges) functions as a sort of scarecrow seen as either bringing France back to the arbitrariness of courts under Ancien Régime or as importing American judicial problems. Given such an unfavourable context to an independent and strong judiciary, it comes as little surprise that “De Gaulle’s” Constitution of the Vth Republic-which is still France’s constitution today (hereinafter the 1958 Constitution)-had extremely limited constitutionality control of legislation and did not intend to fully consider the judiciary amongst the actual powers of the State, only referring to it as “judicial authority”. Another reason for this choice seems to be that judges are not elected and therefore cannot be considered a state power but only an authority.