Dissertations / Theses on the topic 'Constitutional courts – France'
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Paour, Raphaël. "Le pouvoir des cours constitutionnelles : analyse stratégique des cas espagnol, français et italien." Thesis, Paris 10, 2018. http://www.theses.fr/2018PA100132.
Full textIf the power of constitutional courts is defined by the influence that they exercise upon other legal bodies, one must consider the review mechanisms at their disposal to exercise that power and the various ways in which other legal bodies can limit constitutional court influence. In Spain, France and Italy, the distribution of judicial review mechanisms and means of legal influence between the courts and the other legal bodies is different. The Power of Constitutional Courts gives an account of constitutional court power based on the distribution of judicial review mechanisms and other means of legal influence. It details specific ways in which constitutional courts have been able to establish their power in the three countries. It explains: the judicial deference of the Spanish Tribunal towards the legislature and its domination of other Spanish courts; the collaborative relationships of the French Conseil constitutionnel and the Italian Court have established with other courts and the more confrontational relationship they have had with the legislature
Silva-Arroyave, Sergio-Orlando. "La suprématie interprétative des juridictions constitutionnelles : étude comparée en droit français et colombien." Thesis, Paris 2, 2017. http://www.theses.fr/2017PA020026.
Full textConstitutional jurisdictions should have wide interpretative powers. However, the scope of these competences varies in different legal systems depending on the ability of other authorities to adopt such interpretations. A constitutional court has interpretative supremacy in a particular State, if its interpretations are binding for all other departments of the State. If its interpretations are just binding for some authorities, this constitutional court would simply have a superior interpretative competence toward those authorities. In order to determine the broader interpretative powers of the constitutional courts, the comparative approach is highly recommended because it makes easier to distinguish the limitations that these jurisdictions may encounter in their respective legal systems. In this way, the scope of the interpretative powers of the French and Colombian constitutional courts will be identified as well as their repercussions in each of its states
Ploux, Antoine. "La motivation des décisions des cours constitutionnelles : étude du discours de motivation des cours belge et française." Thesis, Bordeaux, 2020. http://www.theses.fr/2020BORD0291.
Full textThe motivation of constitutional decisions is a classic subject for legal doctrine but it appears that the usual way, a formal way, of dealing with it does not provide complete satisfaction. The comparison of the motivation between the Belgian and French constitutional courts required to adopt a functional conception of this notion. We approached the motivation of constitutional courts decisions in the most general context of the constitutional court’s discourse and during their motivational process. Following this reasoning, it appeared then that this discourse is integrated in a particular network of pressures but exerted a clear influence. The analysis of this situation allows to reveal the freedom-pressure part of constitutional courts, especially Belgian and French, in the motivational process of their decisions
Espinosa, Romain. "Analyse économique de la norme juridique : des origines constitutionnelles à la mise en oeuvre par le juge." Thesis, Paris 2, 2015. http://www.theses.fr/2015PA020044/document.
Full textThe legitimacy and the stability of political systems have very often been studied in economics separate from considerations about legal norms’ enforcement. My objective is to combine these different approaches, and to place the question of the legal enforcement at the heart of the debate about institutions. This work is made of cinq empirical and experimental investigations that deal with each of the stages of the political and legal process.This first paper analyzes the impact of constitutional rights on public expenditures. The second article explores the influence of self-serving biases on the demand and the supplyof redistribution. The third analysis focuses on the decisions of the French Constitutional Council. The fourth work deals with the recent reform of the judiciary map of Frenchlabor courts. The last study investigates the relationship between the composition of the elected jurors in French labor courts and the way cases are terminated.Our investigations rely on econometric and experimental techniques. They use standard estimation methods (OLS, GLS, Probit, Logit, Within OLS), selection models (Heckman,Triprotibt), techniques for endogeneity correction (2SLS), and methods to estimate systems of equations (3SLS). The experimental analysis makes use of standard statistical tests(permutation tests, proportion tests, two-group mean-comparison tests), and more recent methods to solve heterogeneity (wild clustering)
Estanguet, Pauline. "Rejuger la constitutionnalité de la loi." Thesis, Pau, 2017. http://www.theses.fr/2017PAUU2021/document.
Full textAccording to the organic law relating to the « question prioritaire de constitutionnalité » (QPC), a law may essentially be reviewed by the constitutional council, if it hasn’t already been validated in a former court decision. But exceptionally, a court review may be justified by a change circumstances. Just like every court decision, a court ruling based on both articles 61 or 61-1 of the Constitution must be detailed. Thus, it appears to be necessary to make possible for every litigant to question what had already been ruled. However, this judicial control is about laws that already entered into force and took effect. Indeed, it may represent a significant cause of legal insecurity.Then, the constitutional judge has been spending seven years balancing those issues. On one hand, the possibility to submit a QPC is a real right for the litigant, which efficacy is made possible by an effective access to the constitutional court. On the other hand, the court has to preserve all existing legal situations and acquired rights. Now that the age of reason has been reached, this study is aimed at showing and analysing the behaviour of the judge, and also proposing some adjustments necessary to the development of a quality constitutional justice
Jan, Pascal. "La saisine du Conseil constitutionnel." Tours, 1997. http://www.theses.fr/1997TOUR1009.
Full textTHE CONSTITUTIONAL COUNCIL, CHARGED WITH SECURING THE CONSTITUTIONAL ORDER, IS, TO THIS END, SEIZED OF MUILTIPLE ANS SEVERAL RECOURSES. THE SEISIN OF THE CONSTITUTIONAL HIGH JURISDICTION, UNDERSTOOD AS PROCEDURAL ANS DEFINIED AS THE EXERCICE OF A JURIDICTIONAL ACTION, CORRESPONDS TO CONDITIONS OF RECEVABILITY WHICH CHANGE IN ACCORDANCE TO THE OBJECT OF THE INSTITUTIONAL OR ELECTORAL RECOURSES. THE EFFICIENCY OF THE MECHANISMS OF ACTIONS SELECTION strengthHENS THE RESPECT OF THE RULE OF LAW AS IT REVEALS THE TRANSFORMATION OF THE CONTROL OF THE POLITICAL MAJORITIES
Lebedel, Sophie. "Le précédent dans les décisions des cours constitutionnelles : Étude comparée des expériences française, espagnole et italienne de justice constitutionnelle." Thesis, Toulon, 2012. http://www.theses.fr/2012TOUL0067.
Full textPrecedent, the key-stone of Common law, obliges the Court to comply with analogous preceding decisions, in the absence of justification for abandoning them. This rule is therefore logically absent from the theory of Civil law, according to which, schematically, the Court is only bound by written law. Nevertheless, the study of court decisions in Civil law systems and, more exactly, those of constitutional courts show that they do not hesitate to apply the rules of precedent. It is not a question of a will to be held by a binding and obligatory precedent, but to judge in conformity and within the logic of previously adopted solutions. The authority of constitutional precedent is therefore, more often than not, psychological and the constitutional court can desist from applying it when it deems necessary. Precedent thus becomes a universal judicial instrument, enabling to ensure, regardless of the legal system, the uniformity and the coherence of case-law
Dyevre, Arthur. "L' activisme juridictionnel en droit constitutionnel comparé : France, États-Unis, Allemagne." Paris 1, 2008. http://www.theses.fr/2008PA010266.
Full textDanilenko, Denis. "Le procès constitutionnel et le droit processuel." Aix-Marseille 3, 2008. http://www.theses.fr/2008AIX32037.
Full textIs the procedure before the “Conseil constitutionnel” jurisdictional ? Is it comparable with procedures before other courts ? Although the phenomenon of “juridictionnalisation” of the procedure before the “Conseil constitutionnel” has been examined by some authors, it has nevertheless not been studied thoroughly. This research aims to compare the procedure before the “Conseil constitutionnel” with regard to its normative jurisdiction with procedures before common law tribunals. Procedural law, which deals with an analysis of the different jurisdictional procedures, offers a solid basis for this research. It allows us to tackle the procedure before the “Conseil constitutionnel” in jurisdictional terms thanks to the concepts and principles characteristic to jurisdictional procedures. This approach enables, on the one hand, to assess if the key concepts and principles common to any jurisdictional procedure appear in the procedure before the “Conseil constitutionnel”. On the other hand, the characteristics of the procedure before the “Conseil constitutionnel” are not so distinctive: some of the specificities of this procedure, regarded as unique, can be found in some jurisdictional procedures before other courts and thus are not so characteristic to the constitutional process
Jurion, Roxane. "La jurisprudence économique du Conseil constitutionnel." Thesis, Université de Lorraine, 2017. http://www.theses.fr/2017LORR0176.
Full textThe research analyses the economic content of the decisions of the French constitutional court. Which decisions can be qualified as economic decisions ? Is there a specificity of such economic decisions compared to other kinds of decisions ? We conclude that as far as economic policies are concerned we can observe a marked judicial self-restraint of the court. This judicial self-restraint can be interpreted as a sign of a kind of ″economic neutrality″ of the French constitution. Despite this apparent neutrality, it is possible to detect an underlying philosophy in the Constitutional Council’s decisions related to the judicial limitation of the legislator’s intervention and to the division of powers in the matter of economic policy. The analysis will be compared with the economic thinking, and will take into account the European construction, at a time when European Union impose burdens on Member States’ economic policies, and in a context calling for a redefinition of the structural links between law, economics and policy
Pini, Joseph. "Recherches sur le contentieux de constitutionnalité." Aix-Marseille 3, 1997. http://www.theses.fr/1997AIX32003.
Full textThough more and more popular among states and constitutions, judicial and constitutional review of legislation are still at the centre of controversies and questions. It appears necessary, in order to contribute to the improvement of the knowledge of those as well as to pacify relatively the discussion on the subject, totry to renew the study of them especially by widening the conceptual pattern. Insuch a perspective, the notion of litigation of constitutionality, which can be defined as the disputes directly concerning a matter of constitutionality of legal norms in itself or about some rights or positions constitutionally protected, and also the ways of regulation of these conflicts by a constitutional judge, may be useful. While it makes it possible to avoid the uncertainty of some ot her notions, it actually and autonomously exists as a concept and a matter of study. However, the attempt to define its content and profile through the comparative analysis of judicial and constitutional review systems does not make it possible to sketch out aclear and typical common line, though it shows out some common features and convergences which may question classical distinctions. As far as the try to determine a model of litigation of constitutionality is concerned, it can only be cautiously undertaken : if the fundamental structure and characters are relatively easy to point out, modelling and subsuming are actually more hazardous
Cursoux, Sandrine. "Le revirement de jurisprudence du conseil constitutionnel en contentieux de la constitutionnalité." Saint-Etienne, 2004. http://www.theses.fr/2004STETT071.
Full textThe case law reversal arouses a great interest right away, the stake here is to deal with this reversal regarding the juridictional activity of the constitutional Council. Because it concerns a young institution and the interpretation of the Constitution, the possibility of the constitutional case law reversal has long been hidden , this implies that is necessary to prove its existence thanks to an analysis of the constitutional case law. This reasoning leads to construct a real concept of the reversal of the constitutional Council in litigation of the constitutionality. The research shows also the complementarity that exists between the judge and the doctrine because if the constitutional Council is the instigator of the constitutional case law reversal, the doctrine acts as a revealing party
Merland, Guillaume. "L'intérêt général dans la jurisprudence du Conseil constitutionnel." Montpellier 1, 2002. http://www.theses.fr/2002MON10033.
Full textGordji, Ali-Akbar. "La justice constitutionnelle : mythe ou réalité ? : approche franco-iranienne." Nantes, 2006. http://www.theses.fr/2006NANT4022.
Full textConstitutional justice is at the core of the constitutional law and even the public law in general. Nowadays, to understand the constitutional researchers should not necessarily consult the different chapters of the constitution of a given country. To achieve this goal a thorough examination of the decisions rendered by the constitutional judge could be sufficient. Indeed, these decisions are considered as the starting point tu understand better and as directly as possible the reality of the political systems. To date, the studies on this topic have often been focused on the establishment and the functioning of the constitulional justice in the western countries or in the countries having a juridico-political culture close tu the latter's. The question of the constitutional justice in Iran has rarely been studied by the French researchers. This silence is also the case with the Iranian public law in general. The aim of the present research is thus, through a comparison with the French constitutional justice, to stress on the constitutional justice in Iran. To understand this comparison, the fact that France has adopted a purely laïc political regime, and Iran has opted for a religions political model (Islamic) should be taken into account. The distinction between the two rnodels is more a question of the founder values than the forms. This study exposes, simultaneously, the font and the substance of the question. Firstly, it seeks to discover the formal characteristics of the constitutional justice in France and in Iran. To this end, it puts in a comparative perspective the questions relating to the composition of the «Conseil constitutionnel» and the «Guardian council», the designation modes of the members, the competenees, the procedures followed before them, etc. Secondly, in search of the convergent and the divergent aspects existing between the positions of the constitutional judges, it examines the immensity of the constitutional contentions. These contentions concern, sometimes, the political institutions, and sometimes, the fundamental rights
Severino, Caterina. "La doctrine du droit vivant : étude de contentieux constitutionnel comparé franco-italien." Aix-Marseille 3, 2001. http://www.theses.fr/2001AIX32053.
Full textThe Italian theory of "living law" means that the Constitutional Court uses, abiding by the requirements it has settled, the meaning the reviewed law gained because of its application. This phenomenon has become a more and more interesting subject for French legal scholars. It may be explained by the fact that this "living law" theory shows very well the interaction, sometimes in different ways, that may exist between the Constitutional Court and the others courts of law. The question of transposition of that theory in France arises several questions. The French Conseil constitutionnel seems to use, in some decisions, a comparable reasoning to the one the Italian Corte costituzionale uses when it applies the "living law" theory. This is why, this problem is the central issue of the thesis. .
Mohamed, Ayman Fathy Mohamed. "Le contrôle de constitutionnalité des lois en France et en Egypte." Thesis, Bordeaux, 2015. http://www.theses.fr/2015BORD0048/document.
Full textIn the political, economic, and cultural status quo, constitutional justice has been developed in both Egypt and France. From the legal perspective, it has been realized that various difference between both countries within the mechanism of the constitutional review of laws. Recently, the development of this legal issue in both countries leads to some of similarities between the mechanism in both Egypt and France, especially on the procedural level. Egypt adopted the same French scheme in 2005 with respect to some of the election laws. Further, France adopted the same constitutional review as Egypt via subordinate claim in 2008. But that does not mean that the constitutional review in both countries include only the procedural levels but also the main principle of the legal constitutional reviews in Egypt and France
Dardalhon, Laurence. "Les conventions collectives à l'épreuve du contentieux constitutionnel en droit français." Aix-Marseille 3, 2004. http://www.theses.fr/2004AIX32007.
Full textDivided into two parts, the dealed study, within the framework of a first, constitutional base of normative capacity of the collective agreement consisted the principle of participation. The second part examines the constitutional functions of the collective agreement. Indeed, convention is sometimes authorized to replace the public standards or to derogate from these same standards since it is more favourable to the workers. Thus, it is possible to distinguish the two principal functions from the conventional standard : a function of substitution and a function of exemption. The present study attempts to show the interest of a direct application of the Constitution in the working relationship. With this intention, it takes not only into account the constitutional Council decisions, but also those returned by the base of the social jurisdictions on the base of the constitutional provisions
Carvalho, Filho José dos Santos. "De la théorie à la pratique de l'activisme judiciaire : la technique de l'interprétation conforme à la constitution en contrôle a posteriori : étude comparée Brésil-France." Thesis, Aix-Marseille, 2019. http://www.theses.fr/2019AIXM0008.
Full textFor a long time, the lesson of Kelsen about the constitutional judge as a negative legislator has been spread around the world. Nevertheless, new kinds of techniques for decision of judicial review that give judges more power to deal with breaches in the constitution under mine this historical notion. Indeed, contemporary constitutionalism includes several types of decisions enacted by constitutional courts creating new rights and obligations. As a result, there seems to be an inconsistency between Kelsen's paradigmatic theory and the constitutional practice in some countries. The purpose of this thesis is to analyze this question by means of a comparative law study between Brazil and France. It focus on the technique of decision constitutional avoidance, in which is possible to analyze certain cases of the Conseil constitutionnel and the Supremo Tribunal Federal. At a first moment, in orderto verify how these Courts handle this type of technique of decision and then to identify how the context of each country influences the conduct assumed – self restreint or judicial activism. After considering these aspects, this thesis is developed around establishing a relationship between interpretative prudence and the framework of the constitutional judge, in order to investigate how the social, historical, political and legal contexts can promote or constrain judicial activism
Bezzina, Anne-Charlène. "Les questions et les moyens soulevés d'office par le Conseil constitutionnel." Paris 1, 2012. http://buadistant.univ-angers.fr/login?url=https://www.dalloz-bibliotheque.fr/pvurl.php?r=http%3A%2F%2Fdallozbndpro-pvgpsla.dalloz-bibliotheque.fr%2Ffr%2Fpvpage2.asp%3Fpuc%3D7982%26nu%3D18%26selfsize%3D1.
Full textMartel, Pascale. "Gouvernement et parlement au cours de la fonction législative dans la constitution de 1958." Paris 2, 1992. http://www.theses.fr/1992PA020016.
Full textThe making as well as the adoption of laws, can put altogether sometimes successively and sometimes simultaneously the governement and the parliament. The purpose of this survey is to go into thoroughly respective functions of each of these institutions. First, it will deal with the preparation of the texts and secondly with the adoption of those texts. Accordingly in the first part we will analyse particulary each institution which hold decisive position within the legislative process. That is to say the president of the republic as the political initiator, the governement as the fundamental concepteur, the cabinet as a necessary step, the minister in charge of the relationship with the parliament as a privileged mediator and the parliamentarians whose real legislative initiative is nowadays drifted. The second part will be about the evolution of the texts during the parliament examination dealing with the main work made by the commissions, and with the exercise of the amendment right. Then we will bring out the way how internal structural mecanisms and external interventions condition the substantial result of the legislative proceedings
Andriantsimbazovina, Joël. "L'autorité des décisions de justice constitutionnelles et européennes sur le juge administratif français : Conseil constitutionnel Cour de justice des communautés européennes et Cour européenne des droits de l'homme." Bordeaux 1, 1994. http://www.theses.fr/1994BOR1D021.
Full textThe implementation by the french administrative court of the decisions of the constitutional council, of the court of justice of the european communities and of the european court of human rights is examined in the lights of three theories: that of res judicata, that of persuasive authority of judicial precedents, that of the authority of the "chose interpretee". The french administrative court usually abides by res judicata obtained by the constitutional council, the court of justice of the european communities and the european court of human rights. He acts so, nevertheless, on criteria different from those traditionally known in the french law. Then, it appears that, notwithstanding, his refusal to acknowledge any binding authority to the judicial decisions of the constitutional council, the european court of justice and the european court of human rights, the french administrative court is not unaffected by the persuasive force of the decisions of those courts. Such a reaction may lead one to wonder whether, in spite of the appearances, the french judge is not, in reality, somewhat bound up by a new conception about the authority of judicial decisions: the authority of the "chose interpretee". The latter concerns the authority of the decisions of all juridictions that have to interpret authentically the constitutive norm of juridical order. Doesn't this theory lead the french administrative court to establish connection between res judicata and stare decisis?
Malhière, Fanny. "La brièveté des décisions de justice (Cour de cassation, Conseil d'Etat, Conseil constitutionnel) : Contribution à l'étude des représentations de la justice." Thesis, Montpellier 1, 2011. http://www.theses.fr/2011MON10044.
Full textConsidered for over two centuries as an established tradition, courts' brevity decisions is now challenged by French's supreme courts. Current developments of justice lead judges to highlight the necessity or not to maintain one of their main singularity which is to writ short decisions. This question is part of an overall consideration of the judicial function. The way the decisions are written is indeed related to some representations of justice. Then, it's necessary to update the judicial function's representation which is now also expressed by decisions' brevity. The study of the brevity meanings points out that brevity expresses a denied power of justice and faces the judge's power exercise. The ambivalent nature of brevity shows an historical paradox which is present through the history of French justice. By remaining silent, the judge has so far maintained the fiction of a non creative judge while exercising his creative power. No longer in doubt, the judge's power must be assumed through a more developed writing of its decisions
Vergne, Arnaud. "La notion de constitution d'après la pratique institutionnelle à la fin de l'Ancien Régime : 1750-1789." Paris 2, 2000. http://www.theses.fr/2000PA020044.
Full textHeitzmann-Patin, Mathilde. "Les normes de concrétisation dans la jurisprudence du Conseil constitutionnel." Thesis, Paris 1, 2017. http://www.theses.fr/2017PA01D008.
Full textBased on the analysis of the French Constitutional Council case law, this research studies a specific technique which the constitutional judge uses when interpreting reference norms. Doing so, the constitutional judge creates concretization norms. Concretization norms are built on reference norms of the constitutional law review, and can be viewed as a user manual of these norms. They are infra-constitutional norms. Some of them are binding to the legislator while other command the constitutional judge itself. Indeed, one category establishes the criteria the legislator must follow in order to pass laws in compliance with the Constitution. A second category establishes methods which the constitutional judge will use when proceeding to the constitutional law review. These news rules are a concretization of reference norms on two levels. First, they specify the content of these norms. Second, they facilitate their application. Hence, concretization norms are a judicial tool and a legal norm. Through all these characteristics, concretization norms are used by the constitutional judge in order to extend its jurisdiction but also to stabilize its case law
Troger, Vincent. "Histoire des centres d'apprentissage, 1939-1959 : les enjeux économiques, politiques et culturels de la constitution de l'enseignement technique court." Paris 4, 1991. http://www.theses.fr/1990PA040154.
Full textThe existence of apprenticeship centers, which are actually called "lycées professionnels", was linked both to long term phenomena and events connected with a series of exceptional situation. To succeed in doing the schooling of apprenticeship, the state was steadily supported by the employers of metallurgical industries who needed schools for the training of workers. But the history of apprenticeship centers was also influenced by the intense political tensions of the period between 1939 and 1948, which made workers-training a key factor and contributed towards building up the identity of this institution amid strong contradictions between their professional and socio-cultural aims
Benzina, Samy. "L’effectivité des décisions QPC du Conseil constitutionnel." Thesis, Paris 2, 2016. http://www.theses.fr/2016PA020066.
Full textThe introduction in 2008 by the french pouvoir constituant of a new procedureallowing a constitutional review post legem by the Conseil constitutionnel deeply changed therelations between the constitutional jugde and those who are supposed to implement hisdecisions (specifically the legislator, non constitutional judges and administrative authorities). With the constitutional review post legem, the Conseil constitutionnel’s decisions can nowdirectly impact the legislative process and command the solution of a dispute before a nonconstitutional judge or the review of a request by an administrative authority. The multiplicationof cases where a decision of the Conseil constitutionnel must be implemented could potentiallylead to an increase of ineffectivity of such decisions. Firstly, this study aims to get a betterunderstanding of the obligation to enforce a constitutional decision that derives from theConseil constitutionnal’s decisions binding authority. Then, this research will precisely definethe different obligations which must be implemented that derives from the general obligationto enforce the Conseil constitutionnel’s decisions. Then, we will compare those obligations withthe actual measures taken by the different implementing authorities to evaluate whether thosesdecisions are effective. At last, the study will concentrate on the causes and implication of theeffectivity or ineffectivity of the Conseil constitutionnel’s decisions
Caitucoli, Marie-Hèlène. "Le processus de légitimation du Conseil constitutionnel français à l'épreuve de la démocratie représentative : études des délibérations de l'institution à huis clos entre 1958 et 1986." Paris, EHESS, 2016. http://www.theses.fr/2016EHES0021.
Full textModem democracy specificity is about representation and election of the citizens' representatives. The citizens can then consent to respect the social organisation defined in their name by their representatives. Thus, democratic legitimacy echoes to the equal participation of citizens in principle through elections. Nevertheless, constitutional Courts composed with non-elected members can interfere on the organisation of public life drrough a judicial review allowed to invalidate any voted law. Understanding what can ground their legitimacy to do so can then highlight representative democracy non-explicit features. This thesis offers to address this question from an empirical study free of any presupposition about modem democracy except the above-mentioned general definition. The French constitutional Council (CC) secrete debates have become public since 2008 constitutional reform as long as they took place twenty-five years before and they provide precious information on our topic. Analysing the shared arguments on the 1958-1986 period of time when they relate to the conception the members of the CC express of their institution legitimacy allows to identify an on-going legitimation process. Indeed, the interlocutors of the CC take back the ground for those very arguments in their future requests. This thesis offers to describe such a specific legitimation process and then opens the way to a more general reflexion about the splitting of representation of democratic institutions
Cléquin, Aurore. "L’autorité du juge : Étude de droit constitutionnel comparé États-Unis, France, Royaume-Uni." Thesis, Paris 2, 2019. http://www.theses.fr/2019PA020055.
Full textCourts’ authority stands very high in the United Kingdom and in the United States. The institutional position of the Judiciary in France, at least for judicial judges, is more precarious. The position of French administrative law judges is different and comes closer to the situation of British and American Judges. A comparison between those judges and the constitutional systems they evolve in appears to be an effective way to understand how courts’ authority is built. Two factors are actually decisive. The first one, which is the most important, is related to the judge’s function. It is crucial that the judge is able to say what his judicial duty covers and where are its limits. Similarly, he has to be able to resist executive and legislative encroachments on his function. When those criteria are met, the judge’s authority is necessarily strong. The second factor only comes next. It appears indeed that the judge’s authority is acknowledged and strengthened when his independence is strongly protected, both in its individual and institutional sense. Once those factors are highlighted, one question comes up. Would it be wise to resort to legal transplants to improve the institutional position of judicial judges in France? It is not that easy. Comparative constitutional law is a very useful tool. However, it must be used carefully
Derrien, Arnaud. "Les juges français de la constitutionnalité, étude sur la construction d'un système contentieux : Conseil constitutionnel, Conseil d'État, Cour de cassation, trois juges pour une norme." Bordeaux 4, 2000. http://www.theses.fr/2000BOR40056.
Full textSerges, Giuliano. "La dimension constitutionnelle de l'urgence en France et en Italie." Thesis, Toulon, 2018. http://www.theses.fr/2018TOUL0122.
Full textThe research concerns «the constitutional dimension of the emergency in France and Italy». The PhD Thesis will be divided into two parts.The first part is aimed at the theoretical definition of the emergency. We have paid priority attention to highlighting the difference between the emergency and the others “similar” legal notions (necessity, periculum in mora, celerity, etc. Is it possible defining the emergency in a rigorous way?In the second part we have examined the articles 47, al. 4, and 61, al. 3, of the French Constitution and the articles 13, 21, 72, 73 and 77 of the Italian Constitution. We have also analyzed the state of emergency law in France and in Italy. It is possible to envisage a «democratic emergency»
El, Daghili Salwa. "L' originalité du modèle libyen de la juridiction constitutionnelle par rapport au modèle français." Paris 1, 2009. http://www.theses.fr/2009PA010252.
Full textBraun, Arthur. "Le pouvoir régulateur du régime politique : étude d’une notion de droit constitutionnel institutionnel." Thesis, Université de Lorraine, 2019. http://docnum.univ-lorraine.fr/ulprive/DDOC_T_2019_0139_BRAUN.pdf.
Full textThe expression "regulatory power" is inherited from the French Revolution. As recurrent in constitutional law, it is a third body specifically responsible for ensuring the regular functioning of political institutions. First entrusted to an ad hoc body specially created for this purpose, regulatory power became the prerogative of an idealized constitutional monarch in the 19th century. Strictly confined to the institutional sphere and thus far from the government and partisan quarrels, the king would only be responsible for maintaining the active powers balance. The "neutral power" outlined by Benjamin Constant between 1800 and 1815 is undoubtedly the most famous theoretical translation of this doctrine.In contemporary constitutional law, the notion of regulatory power allows to qualify a specific legal function whose purpose is the correct and smooth functioning of the political system, understood as a complex system composed of various interacting bodies. If this system has a significant social function, which is the government, the regulation pursued by the regulatory power must be seen as an internal activity of an institutional system distinct from society. Many contemporary constitutions have chosen to entrust this mission to a specific authority: the regulator, which is independent of both the government and the political parties. In practice, two bodies, one political and the other jurisdictional, are entitled to this role: the Head of State and the Constitutional Court.The purpose of our research is therefore to study and systematize this particular role sometimes assigned by constitutional law to the Head of State or to the Constitutional Court. In contemporary democratic systems, the institutional imbalance in favor of the Executive often appears blatant. In France, the majority presidentialism that we have known without interruption since 2002 is based on uncertain foundations, to say the least, so much so that a major institutional crisis could arise at any time; the historical and comparative study of the structure and functioning of political power becomes all the more urgent
Lanisson, Valérie. "Femmes et constitution : étude comparée des cas français et américain." Aix-Marseille 3, 2003. http://www.theses.fr/2003AIX32032.
Full textThe constitutional status of women is a new question, which became interesting since the second half of the XXth century. The militancy of a few women permitted them to reach important positions in the public and civil life, and to get certain autonomy in private relationships and in their families. These successes, even if they were relative and limited, constituted the first step to the awareness that women could reach and obtain equality with men. France and United States don't give the same importance to the concept of Equality, America choose Common Law, France uses a system based on Civil Law, and the two States have opposite models for their constitutional justice system. All these differences invited us to study Equality in a comparative and abstract approach, so that we could show that the french and american constitutional notions, interpretations and methods are noticeably different (First part). But, and it is probably the " application paradox ", the concrete, pragmatic and thematic study of women's position in politics, administrations, work relations and family law, shows a real convergence of the solutions in France and United States. Sexual Equality, even if it is not achieved, is really advancing in a similar way in the two States. This research also includes a bibliography and an alphabetical index of contents
Déchaux, Raphaël. "Les normes à constitutionalité renforcée : recherches sur la production du droit constitutionnel." Thesis, Aix-Marseille 3, 2011. http://www.theses.fr/2011AIX32074.
Full textJudicial review of constitutional amendments is not yet accepted in France. The legal community quasi-unanimously agreed on that solution since the early days of the III Republic. In its decision dated from march 26th, 2003, the Constitutional Council has explicitly denied its power concerning constitutional amendments. In view of the situation in neighboring countries Germany and Italy, the French situation remains singular, if not exceptional.The Constitution contains a provision which cannot be amended. Article 89 para 5 thus states: The republican form of government shall not be the object of any amendment.” Far from the debate on supraconstitutionaliy, it is therefore possible to envisage a specific action of constitutional amendment, based on the Constitution itself. These norms are called constitutionally enforced. The idea is to determine whether a hierarchy exists between “enforced constitutionally norms” and “simple constitutionally norms”. This research must be conducted under a positivist and kelsenian approach. It demonstrates that the constituent power creates specific norms that the amending power, along with all delegated power must respect. It should then be assessed if this theory is effective. The analysis of “constitutions changes” during constitutional transition reinforces the theoretical analysis. Comparative constitutional law studies demonstrate that judicial review of constitutional amendments is not a “Government by judiciary”; it further advances the rule of Law
Domingo, Laurent. "Les actes internes du Parlement : étude sur l'autonomie parlementaire (France, Espagne, Italie)." Aix-Marseille 3, 2006. http://www.theses.fr/2006AIX32061.
Full textKloepfer, Wilfried. "Contribution à l' étude des rapports inter-juridictionnels dans le domaine des droits fondamentaux : le Conseil d'État dans ses rapports au Conseil constitutionnel et aux Cours européennes." Toulouse 1, 2002. http://www.theses.fr/2002TOU10032.
Full textThe coexistence of jurisdictions attached to distinct juridical orders raises the question of the nature of the inter jurisdictional relationships, as well as, more specifically, of the situation of the Conseil d' État vis-à-vis the Conseil constitutionnel and the judges in Strasbourg and Luxembourg. A first movement tends to consider that the Conseil d' État is the agent of a jurisdictional monologue. It appears that an ideological superstructure has determined the institutional infrastructure. The former results, from one hand, from the contemporary rhetoric about human rights. On the other hand, it is orchestrated by a doctrinal strategy that pursues the prominence of the law while denying the autonomy of the juridical science. The jurisdictional monologue is constructed within the institutional infrastructure. The cornerstones of the construction are the Constitution and the Fédération, as sources, respectively, of the international law unity, and the European law. But the notion of the authority of judgments and the autonomy of the Conseil d' État are not likely to show a hierarchical inter jurisdictional link. Thus there is a deconstruction of the jurisdictional monologue. A second movement considers that the Conseil d' État is an actor in a jurisdictional dialogue. In this perspective, there is a positioning and a communication by the judges. The judges' positioning is dependent upon the jurisprudential strategies implemented. The strategies vary among jurisdictions based on the jurisdictional latitude which positions the judges in the dialectic of freedom and in the constraint of the activity of interpretation. The judges' communication evidences, from one hand the creation of a judges' dialogue which, without satisfying the habermassian postulate of a strategy and domination free discourse, adopts the demand for a narrative coherence. On the other hand, it also attests of the transformation of the production system of the law. Hence, the idea of a complexification of the law is validated, underlined by the change from a pyramidal logic to a network logic
Kouomou, Simo Landry. "Le changement de circonstances dans la jurisprudence du Conseil constitutionnel." Thesis, Paris 1, 2017. http://www.theses.fr/2017PA01D051.
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Valls, Julien. "Cours constitutionnelles et normes législatives financières : les expériences espagnole et française." Toulouse 1, 2001. http://www.theses.fr/2001TOU10041.
Full textThis comparative law study aims at situating the numerous decisions taken by the French Conseil constitutionnel about financial law regarding international standards. The Spanish Tribunal Constitucional is an accurate counterpart for such a comparison, as its wide competence makes it a very significant example of european constitutional court
Padovani, Julien. "Essai de modélisation de la justice constitutionnelle : réflexions à partir du recentrage du contentieux constitutionnel français autour des droits et libertés." Thesis, Aix-Marseille, 2019. http://www.theses.fr/2019AIXM0446.
Full textAre theoretical models still a good vehicle to think about constitutional justice? This question is at the bottom of this study, recording the doctrinal neglect of this methodological tool. Modelling has indeed faded away in recent times, after having flourished in the end of the last century on the basis of its founding proposal formulated by Charles Eisenmann. This study reconnects with these works, in particular, with those of Francisco Rubio Llorente, suggesting that constitutional litigation should be studied through a teleological prism. Following the author's proposal, distinguishing between a law-centred model and a rights-centred one, the research focuses on the French constitutional justice system. It highlights a reconfiguration of judicial review around rights and freedoms, accelerated by the « question priroritaire de constitutionnalité ». It thus provides the material that can be used to build a new modelling. Because of its limitations, the original doctrinal proposal is indeed reformulated by highlighting the tension between separation of powers and human rights as the two kinds of purposes assigned to constitutional litigation. The stakes of such modelling are numerous. In particular, it makes it possible to draw attention to the nature of the control carried out and to the extent of power granted to constitutional judges, emphasizing the legitimacy issue of constitutional justice. This research is exploratory in nature. It provides, not an analysis of positive law, but a tool that can enable such an analysis. It is thus part of an approach trying to rehabilitate modelling in legal studies, based on an understanding of models as descriptive tools
Dondi, Sebastiano. "Pouvoirs et contrepouvoirs : les limites juridiques au pouvoir majoritaire dans la dynamique du regime politique en Italie et en France." Thesis, Paris 10, 2013. http://www.theses.fr/2013PA100056.
Full textThis PhD dissertation consists in a comparative study of veto players (or counter-powers) that, according to Italian and French Constitution, aim at affect the legislative activity of the executive and majoritarian power and of its majority in the Parliament, i.e. laws and decrees-law. They are summarily: the referendum, the opposition parties, the head of the State, the Conseil d’Etat and the constitutional justice. The research, after the initial chapter regarding an innovative classification of veto powers which describes them with a dogmatic approach, explores in depth the existing relations among veto players and their interactions with Power. The methodology is based on an empirical and systematic analysis of some classic case-studies
Il lavoro di ricerca è uno studio comparato tra Italia e Francia dei contropoteri che, secondo Costituzione, intervengono sul prodotto del lavoro del Potere maggioritario, le leggi e i provvedimenti di rango primario. Si tratta del referendum, l’opposizione parlamentare, il capo dello Stato, il Conseil d’Etat e la giustizia costituzionale. La tesi, dopo un capitolo iniziale dedicato ad una innovativa classificazione dei poteri di veto idonea a inquadrarli dogmaticamente, si propone di indagare in profondità le relazioni che legano fra di loro gli organi di contropotere e come questi interagiscano con il Potere. La metodologia utilizzata è innovativa e si basa su un’analisi empirica basata su casi esemplari e basata sul metodo sistematico
Dromard, Michaël. "Les doctrines institutionnelles des Responsables Politiques Français vis à vis de la notion de Cohabitation au cours de la 5ème République : 1958-2017." Thesis, Paris 2, 2018. http://www.theses.fr/2018PA020080/document.
Full textThe thesis recalls the many positions of the French political officials with respect to the concept of cohabitation during years 1958-2017 and highlights their institutional contradictions which appear according to situations and political circumstances given. It thus emphasizes the many institutional divergences of the right-hand side on the subject : the cohabitationnist refusal of the Gaullist and Pompidolian regims, the Giscardian assent of 1978, the division within the right during Mitterrand years between 1981 and 1995, the union in the denunciation during the first mandate of Jacques Chirac between 1995 and 2002 and finally a succession of contradictions during years 2002-2017. The thesis also records certain institutional divergences on the side of the socialist left : a cohabitationnist will during years 1958-1981, a serious reserve during years 1981-1986 then 1988-1993, a cohabitationnist satisfaction during years 1997-2002 and also a succession of contradictions during years 2002-2017. The thesis shows so the way in which the political leaders have evolved their institutional doctrines according to situations and political circumstances given and also tries to explain their numerous personal strategies and their institutional reflections with respect to the cohabitation
Morin, Asli. "La convergence des jurisprudences de la Cour de cassation et du Conseil d'Etat : contribution au dialogue des juges en droit du travail." Thesis, Paris 2, 2012. http://www.theses.fr/2012PA020065.
Full textThis dissertation aims at describing how the two Supreme Institutions — the Board of State and the Court of Cassation —, despite their respective traditions and status were able to make their Jurisprudences convergent. Beginning with an historical Introduction, the study goes in details into the reciprocal attraction of the the Board of State and of the Court of Cassation based on shared goals (Part I). This convergent movement is discussed according to both Jurisprudences (Title 1), then in relation with the Jurisprudences of the Disputes Tribunal of the Constitutional Council and of the European Courts (Title 2). Part II offers a methodological approach explaining how the sources of these Jurisprudences are selected in order to solve normative conflicts (Title 1). A cross-movement consisting in loans and exchanges of technics between both Institutions occurs for the sake of Law unity and in defense of the public and individual Rights (Title 2)
Benezech, Ludovic. "La diffusion des droits fondamentaux dans l’ordre juridique interne sous l’influence de la Convention européenne des droits de l’Homme. : contribution à l’étude de la fondamentalisation des droits." Thesis, Université Clermont Auvergne (2017-2020), 2019. http://theses.bu.uca.fr/nondiff/2019CLFAD009_BENEZECH.pdf.
Full textThe law is currently facing the increasing emergence of fundamental rights. A neologism of doctrinal origin, fundamentalisation is expressed by the phenomenon of the spreading of fundamental rights within all branches of law. This global movement therefore raises many questions of coherence and notional unity. One of these questions is whether it responds to a possible systematization.The safeguarding and development of fundamental rights, « not theoretical or illusory rights, but rights that are practical and effective », entirely control the letter and spirit of this phenomenon. The changes brought about by the fundamentalisation of rights are not only semantic, they are above all substantial. The effectiveness, the proportionality, the right balance and the casuistic spirit in particular thus appear to be inherent in this movement which invites to rethink the established and structuring principles of the French legal order.Thus, the interest of this research lies less at the level of the study of fundamental rights as such than at the level of the analysis of the dynamics of their extension. The real aim of this study is to analyse in detail the reality, unity, scope and purpose of the fundamentalisation of rights within the French legal order
Aubertin, Julie. "La délimitation des frontières entre les domaines administratif et politique en droit public français." Thesis, Lille 2, 2014. http://www.theses.fr/2014LIL20013.
Full textThe distinction between administrative and political domains was always a paradigm of French legal thought, yet it became complicated by the strengthening of both the Rule of Law and local autonomy. While the State appears as a political entity with an administrative dimension, local authorities are administrative entities whose political dimension is not recognized by the traditional conception of local autonomy. Nevertheless, by trying to separate administrative bodies from political bodies, local authorities entail political characteristics without being equated with state political authorities (which are the only authorities that can exercise sovereignty). Subsequent to this organic demarcation, the material delimitation of both domains, which focuses on the legal functions of these bodies, their actions and responsibilities, confirms that the State and local authorities are at the boundary between these two domains. Increasingly, the administrative dimension of the State can be contrasted directly with the irreducibility of policy. The political dimension of local entities, which is expressed through decision-making power, cannot question the unitary State. Based on an analysis of the doctrine and jurisprudence, the delimitation of boundaries between the two domains allows us to define ultimately the concepts of administration and policy
Rassu, Federica. "L'invocabilité des directives européennes et son incidence sur les ordres juridiques italien et français." Thesis, Poitiers, 2013. http://www.theses.fr/2013POIT3004.
Full textDeveloped by the European Court of Justice, the invocability of EU directives defines the conditions allowing legal subjects to exercise the rights conferred by a directive in their legal relationships. The ECJ has managed to introduce different types of invocability into the member States national legal orders, and notably in Italy and France, by, on the one hand using some pre-existing elements of the national legal orders, such as consistent interpretation and the principle of State liability, and making them evolve in a European way. And, on the other hand the ECJ has also created new and, finally, revolutionary tools, such as invocability of substitution and invocability of exclusion of the national law incompatible with a EU directive. The implementation of these different types of invocability has had a deep impact on the role of national courts, who have seen their mandate extended. The legal sphere of legal subjects had also been influenced, in unpredictable and sometimes detrimental ways
Iftimiei, Andra. "La constitutionnalisation du droit pénal roumain et français : étude de droit comparé." Thesis, Bordeaux, 2014. http://www.theses.fr/2014BORD0103/document.
Full textThe chosen topic sets forward the interest of an interdisciplinaryapproach as well as the approach from the perspective of comparative law, thusconferring originality, but also an innovating vision on the intersection of two lawbranches. We propose the analysis of criminal law constitutionalization due to thegeneral trend in which criminal law is equally subscribed, namely that ofinternationalization, Europeanization and constitutionalization of law. Moreover, thestudy of the two law branches is relevant given the highly intimate connectionsbetween them, through rendering more effective the protection of fundamental rightsand liberties.As research method we subscribed the entire thesis to a well-known method ofRomanian and French university school which embraces a new binary structure:problematization – solutions or hypothesis – demonstrations. The problem orhypothesis raised by the thesis is ”What is the starting point and how does the process of constitutionalization of the criminal law acts/functions?”, implicitlyadmitting the existence of such a phenomenon. The solutions or demonstrations arereflected as answers to the central questions, forged on the research plan of thethesis: highlighting the relations between criminal law and the Constitution,respectively of the means of constitutionalization and the effects of this phenomenon.Following the principles exposed by Legal Sociology regarding the integration of aprocess in the limits of a phenomenon, we reached the conclusion that in the case ofconstitutionalization, it fulfills all necessary requirements in order to be catalogued assuch. An argument in this respect is represented by the spread of this phenomenonboth from the spatial perspective (being encountered both in the European space aswell as in the international space) and from the perspective of the branches of law,which are subject to the process of constitutionalization (accordingly, we identified aseries of illustrations from Administrative Law, Labor Law, Economic Law, EuropeanLaw of Contracts or the Right to a Healthy Environment).The crystallization of the constitutionalization notion is carried out by reporting toother terms, so as to configure the delimitation of the concept. In order to delimit theconcept of constitutionalization we conducted a reporting to codification,constitutionalism, conventionality and constitutionality, underlining the existingdiscrepancies between these terms. It is estimated that there are seven stages ofconstitutionalization: 1) rigid constitution, 2) jurisdictional guaranteeing of theConstitution, 3) the compulsory force of the Constitution, 4) ”over-interpretation” ofthe Constitution, 5) interpretation of laws in accordance with the Constitution, 6)direct application of constitutional norms, 7) influence of the Constitution on politicalreports.The binary structure of the doctorate thesis proposes the analysis of theconstitutionalization phenomenon from a dual perspective: the premises ofconstitutionalization (materialized in the supremacy of the Constitution, theconstitutional grounds of criminal law, as well as constitutional guarantees in criminalmatters), and the proper constitutionalization of criminal law (which we equallystructured on the means of achievement of constitutionalization and the effects of thisphenomenon)
Leal, Saul Tourinho. "Direito à felicidade: história, teoria, positivação e jurisdição." Pontifícia Universidade Católica de São Paulo, 2013. https://tede2.pucsp.br/handle/handle/6202.
Full textThis thesis has the purpose to investigate whether there are connections between the contemporary constitutionalism and happiness. It addresses the Independence of the United States of America, the French Revolution and the independence of Brazil. After such historical perspective, it describes the utilitarian school, represented initially by Jeremy Bentham and, subsequently, by Stuart Mill. It asserts that utilitarianism, allied to the principle of human dignity, is the theoretical basis of the thesis that allows happiness to be a constitutionally protected right and, moreover, providing the basis for it to appear in legal reasoning developed by the judges as grounds for judicial decisions. Subsequently, this thesis examines a dogmatic part in which it attempts to identify the existence of a right to happiness within the wording of the Constitution of 1988. In this part, it describes a right to happiness dismembered into five biases: (i) broad right to happiness, (ii) the right to the pursuit of happiness, (iii) the right to be provided with happiness (iv) sealing the perverse pleasures, (v) happiness as telos. Addressing the constitutional jurisdiction, it examines the American and European-continental models then shows how the theory of happiness has been used in trials of major national issues in Brazil, like the same-sex unions, policy of quotas, the Marijuana March and crimes trifle. It also discusses the abuses committed by invoking the theory of happiness, illustrating with the example of the Kingdom of Bhutan. Finally, it presents the proposal of hedonic damages. The thesis concludes there is a legally guaranteed right to happiness , but alerts that the theory of happiness is not able to solve all the cases, indicating that, in situations in which there are informational deficits, it is recommended judicial restraint and deference to the Legislature
RESUMO: A tese apresenta a proposta de investigar se há conexões entre o constitucionalismo contemporâneo e a felicidade. Aborda a Independência dos Estados Unidos da América, a Revolução Francesa e a Independência do Brasil. Após essa perspectiva histórica, passa a apresentar a escola utilitarista, inicialmente representada por Jeremy Bentham e, na sequência, por Stuart Mill. Afirma que o utilitarismo, aliado ao princípio da dignidade da pessoa humana, é a base teórica da tese, permitindo que a felicidade seja um bem protegido constitucionalmente e, além disso, propiciando que ela apareça nos raciocínios jurídicos desenvolvidos pelos julgadores como fundamento de decisões judiciais. O trabalho passa, então, a uma parte dogmática na qual tenta identificar a existência de um direito à felicidade por meio da leitura da Constituição Federal de 1988. Nessa parte, afirma haver um direito à felicidade desmembrado em cinco vieses: (i) direito amplo à felicidade; (ii) direito à busca da felicidade; (iii) direito prestacional à felicidade; (iv) vedação a prazeres perversos; (v) felicidade como telos da decisão judicial. Tratando da jurisdição constitucional, apresenta os modelos norteamericano e europeu-continental para, em seguida, mostrar como a teoria da felicidade tem sido utilizada nos julgamentos dos grandes temas nacionais no Brasil, a exemplo das uniões homoafetivas, das políticas das cotas, da Marcha da Maconha e dos crimes de bagatela. Trata ainda dos abusos cometidos por meio da invocação à teoria da felicidade, ilustrando com o exemplo do Reino do Butão. Por fim, apresenta a proposta dos danos hedônicos. A tese conclui haver um direito à felicidade a ser garantido judicialmente, mas adverte que a teoria da felicidade não é capaz de resolver todos os casos, indicando que, em hipóteses nas quais há déficts informacionais, é recomendado moderação judicial e deferência ao Poder Legislativo, por meio da utilização da técnica chamada apelo ao Legislador
Korsakoff, Alexandra. "Vers une définition genrée du réfugié : étude de droit français." Thesis, Normandie, 2018. http://www.theses.fr/2018NORMC018.
Full textThe purpose of this thesis is to test, in the specific context of French law, the veracity and durability of feminist and gendered review of the refugee definition, which consists in denouncing the failure to take into account persecutions suffered by women and sexual minorities in the election process. It is a mixed conclusion that emerges from the study because, despite the numerous international and European pressures calling for a gendered analysis of the concept, these criticisms inherited from the 1980s still appear, to a large extent, to be relevant. Admittedly, the exclusion of gender-related persecution that they denounced has somewhat weakened, because persecutions suffered by women and members of sexual minorities are no longer excluded, as a matter of principle, from the scope of the refugee definition. However, there is still no political or jurisdictional will to fully integrate them into the analysis. Indeed, the efforts made to take them into account are still insufficient, leaving subtle obstacles to their integration, obstacles that are all the more difficult to identify and overcome
PONTHOREAU, Marie-Claire. "La reconnaissance des droits non-ecrits par les cours constitutionnelles italienne et francaise : Essai sur le pouvoir createur du juge constitutionnel." Doctoral thesis, 1991. http://hdl.handle.net/1814/4754.
Full textExamining board: Prof. B. de Witte, I.U.E., superviseur ; Prof. L.M. Diez-Picazo, I.U.E. ; Prof. J.C. Escarras, Toulon ; Prof. A. Pizzorusso, Pise ; T. Renoux, Aix-Marseille ; Prof. M. de Villiers, Nantes
PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017
MARZAL, YETANO Elia. "Constitutionalising Immigration Law: The reformulation of the rights of aliens by the courts in Germany, France and Spain. Precarious and emergent rights." Doctoral thesis, 2004. http://hdl.handle.net/1814/4706.
Full textExamining board: Prof. Francesco Francioni (European University Institute, Florence) ; Prof. Danièle Lochak (Université Paris X-Nanterre) ; Prof. Christian Tomuschat (Humboldt-Universität, Berlin) ; Prof. Jacques Ziller Supervisor (European University Institute, Florence)
PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017
The object of this research is the reconstruction of the existing legal response by European Union states to the phenomenon of immigration. It seeks to analyse the process of conferral of protection. One main dimension is selected and discussed: the case law of the national courts. The study focuses on the legal status of immigrants resulting from the intervention of these national courts. The research shows that although the courts have conferred an increasing protection on immigrants, this has not challenged the fundamental principle of the sovereignty of the states to decide, according to their discretionary prerogatives, which immigrants are allowed to enter and stay in their territories. Notwithstanding the differences in the general constitutional and legal structures, the research also shows that the courts of the three countries considered – France, Germany and Spain – have progressively moved towards converging solutions in protecting immigrants. The research contributes to a better understanding of the different legal orders analysed.