Dissertations / Theses on the topic 'Pouvoirs implicites (Droit constitutionnel)'
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Courtemanche, Olivier. "Les principes constitutionnels implicites : étude jurisprudentielle de leur nature, de leur rôle et de leur autorité." Master's thesis, Université Laval, 2008. http://hdl.handle.net/20.500.11794/20457.
Full textCaron, Christina. "Le principe constitutionnel de l'honneur de la couronne en droit autochtone canadien." Thesis, Université Laval, 2012. http://www.theses.ulaval.ca/2012/29253/29253.pdf.
Full textMauger, Florian. "Les pouvoirs implicites en droit administratif français." Thesis, Paris 2, 2013. http://www.theses.fr/2013PA020002/document.
Full textBroadly defined, implicit powers are powers that the judge deduces by interpreting the text of an express provision beyond the very meaning of the terms.The link between the power and the text from which it is deduced may vary: the power can be admitted on the basis of a specific provision or can derive from an extended view of the remit of the authority which receives this power. However, the same reasoning is at work in each case: we must presume that the author intended that his text shall fully take effect. Then we also assume that the authority has received not only all the powers explicitly described by the text, but also all those which are necessary to achieve the goals the author has assigned to this authority. Once this principle of interpretation set, the judge evaluates the requirement of an implicit power in relation with one or a body of provisions. Implicit powers have been admitted by the administrative case law. However, their designation is most often doubtful. Furthermore, the terms used by the judge fortheir recognition tightly connect their acceptance to the de facto necessity of the measures taken, despite a necessary differentiation between the one and the other. At last, the fact that this powers most often originate from a text determines their status, for the spirit of the text, if not the letter, still limits them
Baniyahya, Abderrahman. "La Séparation des pouvoirs en droit constitutionnel marocain." Lille 3 : ANRT, 1985. http://catalogue.bnf.fr/ark:/12148/cb37594098k.
Full textBeaugendre, Charles. "La notion de compétences implicites : étude de droit comparé." Amiens, 2003. http://www.theses.fr/2003AMIE0050.
Full textThe concept of implicit powers covers a series of reasonings. It was imagined by the Federalists in the U. S. A, and recognized by the Supreme Court, at first under the form of implied powers. The concept has diffused in other federal States, as well as in France, a centralized State. It has also been used by international organisations such as the European Union. However, there are political and institutional obstacles to its diffusion. The concept of implicit powers comprehends accessory powers, implied from express powers on one side, and powers implied from the law system understood as a totality. This concept also includes the theory of "implied limitations" which comes from the American theory of "implied prohibitions": the powers are also defined negatively
Brossard, Pierre. "L'article 38 du Traité instituant la Communauté européenne issu du Traité de Maastricht : la consécration conventionnelle d'une création jurisprudentielle : recherche sur le principe de subsidiarité et ses rapports avec la théorie des pouvoirs impliqués." Angers, 1996. http://www.theses.fr/1996ANGE0007.
Full textThe principle of subsidiarity has become a principle of european law with the article 38 of the european community treaty. The purpose of our work is to show that this article wich is supposed to protect member states against the growing communautaries competences will not succed in his task. The principle will fail because of his ambivalence. In his classical meaning, it must protect the inferior level against the superior level's intervention. But, in his modern meaning, it justifies the intervention of the superior level so that it can help the inferior one. The analysis of the practice shows that in domestic affairs, in international law and in european law the subsidiarity was an inefficient barrier in such cases. The theory of the implied powers is responsible for this failure. This jurisprudential creation born in the u. S. Law and transposed in international and european law cohabits with the principle but has an inverted function : it legalizes the growth of competence of the superior level so that it has the necessary powers to take action for the fulfilment of the purpose of the constituent instrument (constitution or treaty). Well then, the implied powers have always succeeded in their confrontation with the subsidiarity (in his classical meaning). It will be the same with article 3b. Beyond, it seems possible to demonstrate that because of his ambiguous formulation, the subsidiarity of that article 3b is essentially a conventional ratification of the theory : the modern meaning of the principle is in fact nothing but a conventional illustration of the theory
Le, Pillouer Arnaud. "Les pouvoirs non constituants des assemblées constituantes : essai sur le pouvoir instituant." Paris 10, 2003. https://buadistant.univ-angers.fr/login?url=https://bibliotheque.lefebvre-dalloz.fr/secure/isbn/9782247099085.
Full textEl, Fadili Mohammed. "Le Conseil constitutionnel et la théorie de la séparation des pouvoirs au Maroc." Aix-Marseille 3, 2009. http://www.theses.fr/2009AIX32029.
Full textDilloard, Arnaud. "Les observations du Gouvernement devant le Conseil constitutionnel." Paris 1, 2012. http://www.theses.fr/2012PA010329.
Full textFall, Ismaïla Madior. "Le pouvoir exécutif dans le constitutionnalisme des États d'Afrique /." Paris : l'Harmattan, 2008. http://catalogue.bnf.fr/ark:/12148/cb413770248.
Full textBibliogr. p. 279-305.
Béquain, Guénaël. "Le Conseil constitutionnel et l'application des engagements internationaux." Bordeaux 4, 2002. http://www.theses.fr/2002BOR40026.
Full textFroehlich, Muriel. "Diversité territoriale et uniformité du droit des droits et libertés dans la jurisprudence du conseil constitutionnel." Montpellier 1, 2005. http://www.theses.fr/2005MON10009.
Full textVartanian, Karine. "Le droit de la guerre d'Algérie : réflexions sur l'exceptionnalité." Paris 10, 1995. http://www.theses.fr/1995PA100145.
Full textThe Algerian conflict whose incidences completed to weaken the fourth republic and which threatened to wipe out the new regime was the circumstance which made this period topple over an exceptional era. To face it, a specific legislation was passed, as a matter of urgency, giving permission for a transfer of competence to the benefit of executive. In accordance with this special prescriptive set, a reinforced preventive regime in association with extreme repression policies was made use of. However, this special measure was revealed insufficient ot reach the targets which were those of war. Consequently is real nature was to be a legal shield supporting practices which hardly were. Eventually, the exceptional legality worked out that way looked like a specific cure to the Algerian war. Nevertheless, those who thought such a thing hardly accepted this observation and some special texts were described as permanent. But the working out, just as the utilization of exceptional legislation during the Algerian war implies that this qualification was the consequence of a will hiding the arbitrary of its measures. Moreover, the management or exceptional texts, after the Algerian war tends towards to reinforce this conviction, since the permanent texts, but the
Mouton, Stéphane. "La constitutionalisation du droit en France : rationalisation du pouvoir et production normative." Toulouse 1, 1998. http://www.theses.fr/1998TOU10033.
Full textConstitution progressively has an influence on legal order. Nevertheless, this new legal phenomenon brings up several analysis which don't come to an agreement about his nature and his real bearing. Constitution has an ambivalence which gives her a specific norm. This specificity has repercussions on constitutionnalization of law. The return on legal order to constitution necessarily involves an evolution of mode of formation of general will. Thereby, the law was the final origin of legality. The starting point of such a process can only be explained by an evolution of sovereign power. The constitutionnalization of law has a political foundation (first part), which brings out her juridical manifestations (second part). She is a new process of rationalization of power which tries to determine the legal production of the executive, the legislature and jurisdictional power on and after basic rights of people which are in constitution. The control of constitution makes respect of this firm. But, with regard to political specificity of the missions of this new control, the constitutional council can't become a supreme court. This role only consists in checking that different powers which can create rights are respectful of constitutional principles. Like that, constitution assures unity of legal order. She gives her a test of organization and coherence. All the rights of people find in constitution legal principles which determine them. This process permits to explain the influence of constitutionnalization of law in legal order without making of constitution a norm which determine all rules of law
Geynet-Dussauze, Chloë. "L'obstruction parlementaire sous la Ve république : étude de droit constitutionnel." Thesis, Aix-Marseille, 2019. http://www.theses.fr/2019AIXM0199.
Full textIs constitutional law able to suppress filibustering manoeuvres as it was intended to do so by the constitutional reform of 23 July 2008? Ten years later, they are more living than ever. That is why the present study choses to look for a legal concept of parliamentary filibustering. It starts by identifying what can constitute filibustering manoeuvres in its diverse forms thanks to a prima facie definition. This identification shows they are an enduring and polymorphous phenomenon. However, once identified, the phenomenon can be legally characterised: it constitutes an abuse of constitutional rights. This characterisation then enables to look for appropriate legal frameworks for parliamentary filibustering. If many of them were created in past years, they never manage to adequately limit the use of filibustering manoeuvres by members of Parliament, as it is shown by the present study. Their shortfalls thus lead to admit the necessity of thinking anew about them by tracking down the causes of filibustering techniques. Their use seems to be conditioned by the place and functions devolved to minority members in Parliament, and more largely to Parliament itself. Two logics are thus to be combined to restrict the use of filibustering. The first is a political one considering the fusion of powers favouring the executive. It can be implemented by giving more power to opposing minorities in the Houses of Parliament as its was partially done by the constitutional reform of 2008. However, this cannot be the sole answer: an institutional logic must also be pursued in order to ensure organic balance between the different branches of governement
Benoit, Florian. "Terrorisme, séparation des pouvoirs et droit à la justice fondamentale. L'évolution du droit constitutionnel canadien dans le contexte sécuritaire résultant du 11 septembre 2001." Thesis, Université Laval, 2008. http://www.theses.ulaval.ca/2008/25469/25469.pdf.
Full textEssono, Ovono Alexis. "Théorie de l'interprétation et pouvoir créateur du juge constitutionnel français." Toulouse 1, 2000. http://www.theses.fr/2000TOU10081.
Full textFlorian, Benoît. "Terrorisme, séparation des pouvoirs et droit à la justice fondamentale : l'évolution du droit constitutionnel canadien dans le contexte sécuritaire résultant du 11 septembre 2001." Master's thesis, Université Laval, 2008. http://hdl.handle.net/20.500.11794/20087.
Full textSouty, Vincent. "La constitutionnalisation des pouvoirs de crise : essai de droit comparé." Thesis, Sorbonne Paris Cité, 2015. http://www.theses.fr/2015USPCA042.
Full textAnalysis of the evolution of norms relating to emergency powers, essentially beginning in the mid-twentieth century, is an excellent way of highlighting the far reaching renewal in this particular area both in terms of international law and in terms of internal law within individual States. A dynamic relationship can be observed between these two spheres in that the experiences of individual States contribute to the development of international law which in turn leads to an evolution of internal law. The emergence of the concept of the rule of law and the need for States to ensure respect for individual rights and freedom serve as guidelines for this dynamic process. Thus is born an international legal regime governing emergency powers, the establishment of a coherent set of rules concerning powers available at times of crisis. The objective of such a regime is to make emergency powers an essential part of the rule of law, much like the separation of powers or the existence of judicial remedies. With regard to domestic law, the majority of States, or at least those under the jurisdiction of the Inter-American and European Courts of Human Rights which constitute the body of this comparative study, retain the notion of institutionalization of emergency powers. Constitution making takes account of international developments in this particular field, putting in place and developing a variety of mechanisms with the aim of establishing emergency powers within the principle of the rule of law. The result is a work of constitutional engineering aimed at meticulously framing emergency powers, thereby guaranteeing the existence of these powers but also ensuring that they are not used for nefarious purposes
El análisis de la evolución de las normas jurídicas relativas a los poderes de crisis, principalmente a partirde la segunda mitad del siglo XX, permite poner de manifiesto la profunda renovación de la materia, tantodel punto de vista del derecho internacional como del derecho interno de los Estados. Existe un procesodinámico entre las dos esferas : la experiencia de los Estados contribuye al desarrollo del derechointernacional que, a su vez, participa en la evolución del derecho interno. Este proceso dinámico, guiadotanto por la emergencia del concepto de Estado de Derecho como por la necesidad de los Estados degarantizar el respeto de los derechos y libertades de los individuos, engendra la creación de un régimenjurídico internacional del estado de excepción, es decir un conjunto coherente de reglas relativas a lospoderes de crisis. Este régimen se destina a hacer del estado de excepción una institución del Estado deDerecho, al mismo nivel que la separación de poderes o que los recursos juridiccionales destinados aproteger el principio de juridicidad. A nivel interno, al menos la mayoría de los Estados que se someten ala jurisdicción de la Corte Interamericana ou a la del Tribunal Europeo, que son el objeto de este estudiocomparado, acatan la idea de institucionalización de los poderes de crisis. Los constituyentes toman encuenta las evoluciones internacionales en la materia y desarrollan numerosos mecanismos destinados ainscribir el estado de excepción en los principios del Estado de Derecho. El resultado es un trabajo deingeniería constitucional que circunscribe los poderes de crisis minuciosamente, esperando garantizar deesta manera la existencia de estos poderes asI como la limitación de los abusos
Daniel, Jérôme. "Contribution à l'étude de la constitutionnalisation." Paris 2, 2000. http://www.theses.fr/2000PA020068.
Full textPetit, Camille. "L’obligation de protéger du chef d’État : contribution à l’étude de la « responsabilité de protéger » en droit constitutionnel comparé et en droit international." Thesis, Paris 2, 2017. http://www.theses.fr/2017PA020036.
Full textThe political concept of the “responsibility to protect” was adopted in 2005 to prevent and p ut anend to criminal atrocities. The apparent consensus over its first pillar, the State’s obligation to protect its populations, has resulted in a lack of institutional analyses regarding its combined comparative constitutional and international aspects. Importantly, the State’s obligation rests in particular with the Head of State. The obligation to protect is common to all heads of state, but it also differentiates among them, depending on whether their obligation is State-oriented (with the aim to protect the State, even if that requires the suspension of the rule of law) or Rule-of-law oriented (with the aim to protect a liberal constitutional order while always subjecting political actionto the rule of law). The thesis begins with an analysis of the sources of law relating to the Head of State’s obligation to protect, as it was successively theorised, constitutionalised and internationalised. It then turns to the execution of this obligation, which derives from the Head of State’s prerogatives, the relevant immunities involved and available institutional review over his orher activities. The study of the sources reveals that the Head of State (at the interface between the domestic and the international legal orders) is bound by a specific obligation, which exceeds the confines of the obligations of either the State or the individual. This obligation is both negative and positive as it requires both not to commit crimes against the population, and to prevent and put an end to such crimes. Its international dimension supplements the missing parts in the Constitutions.The execution of this obligation, by the implementation of the Head of State’s prerogatives, is subject to an increasing political and judicial control. However, this control remains under construction due to a lack of systematic and institutionalized international political responsibility. The thesis concludes that the “responsibility to protect” could be usefully “individualized” and enriched by institutional supervision and judicial review of the Head of State’s obligation to protect
Tourret, Bruno. "Aperçus sur l'interprétation à travers la jurisprudence de la Cour de Cassation et du Conseil Constitutionnel." Rouen, 1990. http://www.theses.fr/1990ROUEL096.
Full textThe legal interpretation of the rules of the law has a double aspect : submission and freedom. The doctrinal developments, as well as the practise, developed by the Supreme Court and the Constitutional Council allowed us to analyse the jurisdictional interpretation of the rules of the law like a game
Lemée, Mathilde. "Les bases constitutionnelles du droit administratif (1789-1940) : une théorie à l'épreuve de l'histoire." Thesis, Rennes 1, 2017. http://www.theses.fr/2017REN1G037.
Full textThe constitutional bases as presented by Georges Vedel in 1954, enable to understand the construction process of the administrative law as a very specific creation. The rules of constitutional law explain why the administrative right is overriding the ordinary law, as well as the reason why the administration benefits from its own specific jurisdiction. If Vedel – and all those who have studied the theory he left – have perfectly examined this phenomenon in contemporary law, the constitutional law actually started to influence administrative law way before 1954. Indeed, these two subjects have always been closely related and the doctrine included a reflexion about the organisation of powers and the notion of State, to base its definition of administrative law. The historical study enlightens the close relation that exists between a constitution and the administrative law. It replaces the theory back to the temporal context in which it tooks place, then showing how crucial it has been all along the 19th century. Then, it is the very nature of administrative law that is clarified. To this end, we should go back to the study of the law of August 16th and 24th 1790, which proceeds to the separation between the administrative and judicial authorities, as well as to the Constitution of year VIII, which creates the Conseil d’État. The doctrine is particularly examined to be able to understand the relationship between administrative and constitutional law, as well as the constitutional texts and the parlementary debates. Therefore, it appears that the constitutional bases enabled the construction of the administrative law in 19th century, in stating the specificity of this emerging law, while ensuring its development in a way that favours the political institution. However, from 1870, the argument loses its importance in favour of new conceptions of the notion of State and administrative law. This trend will only progress in the first half of the 20th century
Del, Moro Thierry. "Contribution à l'étude des modalités d'interprétations concurrentes de la Constitution du 4 octobre 1958." Toulouse 1, 2002. http://www.theses.fr/2002TOU10001.
Full textThe study of the terms of concurring readings about the 4th october Constitution shows the existence of a constitutional split : in one hand, a jurisprudence-Constitution which tends to lay stress on the fact that the unity of readings is the result of norms-decisions imposed by maximal or minimal constraints; in the other hand, a juridical act-Constitution which demonstrates that the Constitution Council, missing in the construction of the enunciation meaning, leaves to the dominating President of the Republic the ability to impose to other authoritative Constitution readers his own reading. In the end, the 1958 Constitution appears as a normative act composed by three classes of norms : those which determine the Constitution Council powers, those endorsed by the Council and those which are not
Célard, Alain. "Le partage du pouvoir réglementaire de l'État : (contribution à l'étude du système normatif du droit public français)." Lille 2, 1995. http://www.theses.fr/1995LIL20010.
Full textAlthough the doctrine of public law has long been highly concerned with the power to implement regulations, the question of the distribution of the power to implement regulations has nevertheless not it would seem received the full attention it deserves. On the other hand the urgency of this question and perhaps its significance were perceived as relatively unimportant before it became apparent that there was a progressive penetration of the rules of constitutional law into those of administrative law. But from the time that constitutional law has been seen to be imposing certain options, notably in the field of jurisprudential action, the question of the distribution of the state's power to implement regulations must be considered both by accounting for the points of view of the authorities concerned by this distribution of power, and the principles which dictate the mode of distribution
Michel, Anne. "L’argument de la nature des choses en droit. Étude de la rhétorique du Conseil constitutionnel." Thesis, Université Paris-Saclay (ComUE), 2016. http://www.theses.fr/2016SACLS484.
Full textIn France, questions about the part of judicial power are renewed by the recent introduction of constitutional justice administrated by a judge ad hoc created on purpose. The relative youth of Constitutional Council, the improvement of control techniques and the establishment of a new right of appeal open the field of research. Nevertheless, it must be observed that these studies fail to analyze one particular aspect of constitutional justice: the rhetoric arguing and, more specifically, the naturalistic justification. Now, as far as we know, it seems that no consequent works have been produced on this issue. The contentious aspect of this naturalistic topic had not been precisely analyzed contrary to the philosophical aspect of it in jurisprudence. And yet, we must observe the presence of this particular argument – under different forms – in Constitutional Council decisions. Beside, the undifferentiated uses of terms like “nature”, “essence”, “substance”, “in itself” etc. in both legal and common language can explain the lack of recent study on this subject in so far as this arguing is most likely appearing as a discursive tool, devoid of any scientific interest. In this regard, this assertion confirms and strengthens our interest for this topic which can be resumed in this terms: “how to define a legal system that fills in its own legal loophole by referring to nature of things ?”
Richaud, Coralie. "Le précédent dans la jurisprudence du Conseil Constitutionnel." Thesis, Montpellier, 2015. http://www.theses.fr/2015MONTD059.
Full textAlthough foreign to our legal model, the rule of precedent is no longer a taboo for judicial actors who finally dare to speak of a practice hitherto remained unofficial and even heretical in our legal tradition. Attentive to the reception and respect for their decisions, the French supreme judges have revived the debate around the precedent. As part of a global questioning of the judicial function, use of precedent expresses a certain representation of the art of judging. Therefore, it is necessary to examine the reasons that lead French supreme judges to refer to their precedent in spite of the historical and theoretical prohibited. Judge’s memory manifestation, the reference to the precedent is inherent in the judicial function which explains that the judge would resort. Rooted in its past and actor of his present, the judge can assert his own power and break away from the traditional representation of his office. By calling its precedent, the judge summoned the source of his power law, enabling it in turn to establish itself as a conscious being of himself and of its normative power
Gindre, David Carine. "La loi du pays en droit constitutionnel français : expression de la spécificité calédonienne dans un État unitaire en mutation." Paris 1, 2005. http://www.theses.fr/2005PA010288.
Full textRoure, Sandrine. "La notion constitutionnelle d'électeur : essai d'analyse de la jurisprudence constitutionnelle et électorale." Montpellier 1, 2004. http://www.theses.fr/2004MON10049.
Full textTourbe, Maxime. "La pensée constitutionnelle de Woodrow Wilson (1856-1924)." Cergy-Pontoise, 2009. http://www.theses.fr/2009CERG0467.
Full textThe 28th President of the United States (1913-1921) and founding father of the League of Nations, Woodrow Wilson, is mainly known for his oeuvre in the field of international relations. On the path from the University to the White House, his work in the fields of political theory and constitutional law is nevertheless imposing. This doctoral dissertation aims at exploring the constitutional thought of Woodrow Wilson and situating it in the context of progressive constitutionalism. It provides a thorough analysis of the Wilsonian critique of the separation of powers in the American system. It would like to show that this critique is based, under the auspices of legal realism, on an original and subtle idea of the « Living Constitution » and of its constraining force
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
Kamal, Mathilde. "Le Conseil constitutionnel et le temps." Thesis, Montpellier, 2018. http://www.theses.fr/2018MONTD001.
Full textUsually promoted as a “Time Master”, the Constitutional Council is in a more complexrelationship with temporality. As to the Council, Time is both a constraint and a resource. Timeis first a constraint because it ties the constitutional trial in very short delays, either that theCouncil rules a priori or a posteriori. Years passing by, the Council has nevertheless dealt withthe constraint, managing to rule “on time”, developing methods to tame the temporal constraint.On the other hand though, Time can be considered as a resource, expressing itself in theconstruction of an innovative jurisprudence that aims to frame the temporality of laws or in theupgrowth of a jurisprudence linked to the modulation of the time effects of its rulings. Thisstudy underlines such a polarized relationship between “Time-constraint” and “Time-resource”
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
Disperati, Tatiana. "L'actualisation de la Constitution par le juge constitutionnel. Étude de droit comparé : France, Espagne, Italie." Thesis, Toulon, 2016. http://www.theses.fr/2016TOUL0109.
Full textNot planned by law, the updating of the Constitution often revives the fear of a government of the judges. In fact, according to a widespread acceptance: the Constitutional Council would exceed the general framework of its mission every time it deviates from the original meaning of constitutional statements. The sole duty of the Constitutional Council would be to examine a relationship of compliance with regard to a constitutional standard, which would be imperative upon him. This approach of the office of the constitutional judge is reducing and neglects relationships between time and the Constitution. The comparative study of Spanish, Italian and French experiences leads to rethink the office of the constitutional judge by considering it in light of the time variable. In that respect, adaptation of the constitutional standard to social reality, allowed by the freedom of interpretation of the constitutional judge, contributes to the Constitution's preservation and longevity. Indeed, longevity requires, in addition to stability, which ensures the Constitution's continuity, mutability of the constitutional substance. Now, ensuring the Constitution's supremacy implies, in a perspective of timelessness, to preserve its longevity. From then on, updating the Constitution is an implicit duty of the constitutional judge, aiming to en sure the Constitution's longevity through its interpretation. A duty that the constitutional judge endeavours to supervise strictly in order to respect the balance of powers inherent to a State subject to the rule of law
Wade, Mame Ndiaga. "Accès au juge constitutionnel et constitutionnalisation du droit : approche comparée avec l'Allemagne, l'Italie et l'Espagne." Thesis, Aix-Marseille, 2015. http://www.theses.fr/2015AIXM1071/document.
Full textThe direct access of individuals to constitutional justice has the tendency in Germany and Spain, contrary to France and Italy where it does not exist, to modify the current and objective nature of the mission of constitutionalisation of the constitutional judge through the subjective goals individual and direct recourses. It triggers, on the other hand, on the side of the constitutional judge another function than the simple constitutionalisation of law that remains objective in the case of the indirect access, which is leading to the fundamentalisation of law, which has very subjective features. This is explaining the competition between the constitutional judge and the ordinary and European courts that leads the first to behave in Supreme Court in Germany and Spain where those review procedures exist. The fundamentalisation, which is a wider process than the constitutionalisation one, also oblige the constitutional judge to adapt and to get involved in the “circulation of legal solutions”
Cattoir-Jonville, Vincent. "La fonction militaire du chef de l'État en France, de 1871 à nos jours : contribution à l'étude du pouvoir présidentiel en République." Lille 2, 1994. http://www.theses.fr/1994LIL20004.
Full textWhat is generally underlined in studies on the presidential power in France since 1871 is the split between the third and fourth republics on the one hand and the fifth republic on the other hand. Particularly as far as the head of state's actual powers are concerned. The analysis of the head of state's military function in the long run reveal, on the contrary, a real continuity in the presidential institution. On the military level, the fifth republic should rather be considered as the heir to a tradition founded by Adolph Thiers - and kept up as well as can be since then - than as a split. Thus, on this level, the fifth republic is the outcome of the slow construction of an institution. A cyclical presentation of that institution, as regards the military function, can then be put forward. The setting-up of a strong presidential power (called "presidential government" or "principate") would evolve towards a magistrature of influence where the importance of the head of state's military role would still be significant, before ending in a comparative retirement of the head of state from the military field. As a reaction to that weakening, a strong presidential power would then reappear (the fifth republic would be one of those last stages)
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
Beye, Mamadou. "L'influence de Nicolas Machiavel et Carl Schmitt sur le droit constitutionnel de l'état de crise : étude comparée à la lumière des droits anglais, américain et français." Thesis, Normandie, 2017. http://www.theses.fr/2017NORMLH30/document.
Full textA cross-reading of the writings of Machiavelli and Schmitt not only allows us to decode certain past events, it also illuminates our understanding of the most recent challenges to the security of the state. Indeed, both authors conceptualize states of emergency – understood as responses to disorders threatening the preservation of the state not adequately covered by positive law – and their analyses demonstrate points of agreement as well as divergence. Comparing and contrasting them makes salient their lines of force. Both authors shed important light on the Anglo- American and French revolutionary movements of the seventeenth and eighteenth centuries as exceptional situations. Moreover, they also provide insight into the more recent emergency situations encountered by these states in confronting the terrorist phenomenon. The interest of such a perspective is twofold. On the one hand, the confrontation of the Machiavelo-Schmittian theory with concrete events demonstrates – despite insurmountable anachronism – their undeniable influence on the operations of law in crisis situations. On the other, from the perspective of their practical application, the theories of Machiavelli and Schmitt both prove inadequate in their apprehension of the exceptional phenomenon, notably with regard to the means that might be deployed to curb the threat. With this in mind, it is imperative to understand both the relevance of the political thought of these two authors, and take the measure of the limits of their theories. A proper understanding of the pertinence and limits of their theories with regard to the present situation should enable us to devise improved legal tools in response to the current crisis
Bacquet-Brehant, Valérie. "L'article 62, alinéa 2 de la constitution du 4 octobre 1958 : contribution à l'étude d'une norme dépourvue de sanction." Paris 2, 2003. http://www.theses.fr/2003PA020059.
Full textTsampi, Aikaterini. "Le principe de séparation des pouvoirs dans la jurisprudence de la Cour européenne des droits de l'homme." Thesis, Strasbourg, 2017. http://www.theses.fr/2017STRAA008.
Full textWhat of the idea that a constitutional principle concerning the institutional organization of the State, such as the separation of powers, could be found in the jurisprudence of an international court of human rights, namely the European Court of Human Rights ? Even if it were to be audacious to prove that the judges of the Strasbourg Court apply a precise theory of separation of powers, it, nonetheless remains relevant to answer the question whether the solutions adopted by the aforementioned judges outline a coherent vision of what should be, in their view, the relations between the branches of government. Yet, one should always bear in mind that the theory of the separation of powers, as conceived in the contemporary liberal State, implies the consecration of only a minimum nucleus of solutions
Charité, Maxime. "Excès de pouvoir législatif et excès de pouvoir administratif : Etude comparée de l'office des juges constitutionnel et administratif français." Thesis, Orléans, 2019. http://www.theses.fr/2019ORLE0001.
Full textIn France, general norms litigation is nowadays divided into two main groups, the actions for abuse of power directed against the normative acts and the control of constitutionality of the laws. Sharing a certain number of similarities, they are analyzed not only as "objective litigation", but also as "cancellation litigation". Thus, in order to fulfill their role, French constitutional and administrative judges must both, first, establish a norm-to-norm report and, if necessary, cancel the general legal act contrary to a superior legal norm. These similarities contrast with the different conditions in which the two judges of the Palais-Royal are called to judge. This permanent tension between the similarities they share and the different conditions in which they are called to judge makes the relationships between the role of the Constitutional Council and that of the abuse of power’s judge oscillate between unity and duality. Precisely, the present comparative study, named "Abuse of legislative power and abuse of administrative power" after the study of Dean Vedel in the first numbers of Constitutional Council Review, aims to demonstrate that, as the stages of litigation progress, the approach of the Constitutional Council and that of the administrative judge get closer to the point of identifying. The inscription of this comparison in the framework of a theory of legal constraints allows us to show that if, in the search for abuse of power, the role of French constitutional and administrative judges is dominated by duality, it is, in the sanction of abuse of power, marked by a deep unity
Alhaj, Embarak Husam. "La séparation des pouvoirs dans le monde arabe : étude comparative des expériences du Maroc, de l'Algérie, la Tunisie, la Libye et l'Égypte : "Un principe à l'épreuve du pouvoir exécutif"." Thesis, Paris 10, 2018. http://www.theses.fr/2018PA100015/document.
Full textThe principle of separation of powers is one of the most important principles on which the idea of modern democracy is governed by the rule of law. It is a fundamental pillar of the structure of a democratic political system based on cooperation and balance between powers. This principle was expressed by Plato, Aristotle, John Locke, Montesquieu, and Rousseau. In the wake of the American and French revolutions, and their applications has become the most important guarantee to prevent the domination and tyranny of rulers as well as respect for human rights and freedoms and justice.This research aims at enlightening those interested in studying the law in its importance and prestige in the constitutional rules of the state. (Tunisia, Egypt, Algeria, Libya, and Morocco) and its impact on their constitutions, to determine whether the separation of powers is theoretical or practical, and to examine the specificity of these countries in applying this principle
Sterck, Julien. "Identité constitutionnelle des États membres et primauté du droit de l'Union européenne : étude comparée de l'Irlande et de la France." Thesis, Bordeaux 4, 2013. http://www.theses.fr/2013BOR40009/document.
Full textComparing the Irish and French legal orders leads to describe the appraisal of the primacy of European Union law by the notion constitutional identity. In contrast to the claims of the European Court of Justice, the constitutional regime regarding European rules, both in Irish and French law, only provides for immunity and ultimately affirms the supremacy of the Constitution as the norm expressing national sovereignty. Still, Irish and French courts display a conciliatory attitude focused on aligning the material content of domestic and European norms. Rather than essentialism, the notion of constitutional identity represents a discourse on the Constitution whereby the identity status qualifies those constitutional norms which can defeat constitutional provisions dedicated to the prevalence of European rules as a result of an interpretative balancing process.While manifesting different affirmations of national sovereignty, the common objective of Irish and French courts is attaining increased control of the application of European Union rules. The institutional dynamics distinguishing the notion of constitutional identity as an interpretative process involve both an empowerment of the judiciary and a specific form of dialogue with the European Court of Justice regarding the conciliation between the primacy of European Union law and the supremacy of the Constitution. Judicial monologues protecting constitutional identity mean possible exclusions of the domestic application of European law and constitute an invitation to the European Court of Justice to agree to a peaceful co-existence of the two legal orders defined as a unity of words with a diversity of meanings
Tavares, Filho Newton. "Juger les lois : l'activisme juridictionnel du tribunal fédéral suprême du Brésil dans le cadre de la constitution de 1988." Thesis, Paris 1, 2016. http://www.theses.fr/2016PA01D016.
Full textThis dissertation joins a vibrant conversation in legal sciences about judicial activism and the place of supreme courts and constutional tribunal in today's representative democracies. It explores the judicial activism of the Brazilian Supreme court under the Constitution of 1988. Following the tradition of French law schools, the dissertation is divided two parts. The first part examines the scope and context of the Supreme court's activism. It posits that an expansion of the Court's role in relation to the Legislative, Executive and Judicial Branches, starting ine the 1990's, originated in many historical, institutional, normative and doctrinal innovations that took place in Brazil after democratization in the 1980's. Notably, the promulgation of a democratic Constitution in 1988 and the adoption of new theoretical concepts regarding the role of the Judiciary in a democracy were key factors that allowed the court to rethink its place among Brazil'q supreme organs of State. The second part identifies ans examines the concrete manifestations of the Supreme Court's activism. Focusing on the qualitive analysis of the Court's decisions, the dissertation delineates the evolution of selected key themes in the Court's case law, considering it within the context of the competences conferred by the Constitution to other branches of government. Thus, the separation of powers as defined by the Constitution of 1988 is the heuristic device employed to organize the analysis and demonstrate the expansion of the Court into the domains of the Legislative, Executive and Judiciary powers
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
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
Serges, 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»
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
Van, Waeyenberge Arnaud. "Les nouveaux instruments juridiques de la gouvernance européenne." Doctoral thesis, Universite Libre de Bruxelles, 2012. http://hdl.handle.net/2013/ULB-DIPOT:oai:dipot.ulb.ac.be:2013/209759.
Full textAfin d’identifier les caractéristiques, les contours et les nouvelles formes de normativités de ce modèle alternatif, cette recherche a adopté une approche pragmatique de l’étude droit et étudie empiriquement et systématiquement six politiques publiques européennes :la stratégie européenne pour l’emploi (SEE) et la Méthode Ouverte de Coordination (MOC), le programme européen REACH; la politique européenne de l’eau; la politique comptable européenne; la politique de régulation des services financiers; et la lutte contre le réchauffement climatique et le marché européen du carbone. Ces politiques publiques sont étudiées au moyen d’une approche par les instruments d’action publique qui s’inspire de la démarche et des recherches effectuées par Michel Foucault sur la « gouvernementalité ».
Cette analyse nous aura permis de démontrer que la transformation de la méthode communautaire classique se constate à au moins trois niveaux. Au niveau des acteurs, on assiste à un renforcement de la place des acteurs privés et de la société civile dans les politiques publiques étudiées. La transformation de l’action publique européenne réside également dans l’utilisation abondante de nouveaux instruments d’action publique - plus techniques que politiques et plus incitatifs que contraignants (du type benchmarking) - qui impliquent systématiquement une collaboration entre acteurs publics et privés à différents niveaux du processus décisionnel (coproduction normative). Enfin le mode de sanction est devenu une « contrainte par l’image » reposant sur la figure du « mauvais élève de la classe » véhiculée principalement par des publications de classements basées sur une classification des bonnes pratiques. Corrélativement, cette transformation se constate également dans les phases d’élaboration, d’exécution et de contrôle du droit de l’Union européenne.
Une fois les caractéristiques et les contours de ce modèle alternatif dessinés sur base des politiques publiques étudiées, cette recherche s’est ensuite tournée vers une présentation des discours (politiques et juridiques) et écoles de pensées (Law and Economics / New Public Management / Démocratie délibérative / Expérimentalisme démocratique) permettant de justifier son existence et, par là, de fonder sa légitimité. Enfin, si ce nouveau modèle peut prétendre à une certaine légitimité ou nécessité et s’il n’apparaît pas envisageable de revenir en arrière, sa non-concordance avec le traité est problématique. En effet, ce modèle pose une série de questions relatives au manque de contrôle sur l’activité des institutions de l’Union et à la sauvegarde de l’ordre juridique constitutionnel européen. Plus précisément, l’étude de la question de la protection juridictionnelle effective et du respect du principe de l’équilibre des pouvoirs permet d’identifier un certains nombre d’écueils et de proposer des suggestions d’amélioration pragmatique du modèle décisionnel européen au regard des nouveaux instruments juridiques de la gouvernance européenne.
The starting point of my doctoral research is that the Classic Community Method, as described in the Lisbon Treaty, does not enable one to understand the manner in which law is currently produced in the European Union. I claim that the Community Method is in fact challenged and transformed by new legal instruments that, far from being isolated initiatives, are part of an alternative model of governance.
My research adopts a programmatic approach as to identify the features, contours and new forms of normativity of this alternative model. It studies empirically and systematically six European public policies through “an approach by instruments” inspired in the writings of Michel Foucault on "governmentality”.
This analysis shows that the transformation of the Classic Community method occurs at least at three levels. First, there is a strengthening of the role of private actors and civil society in policy making. Second, the transformation of European public action also lies in the abundant use of new policy instruments - rather technical and political incentives than binding rules (benchmarking) - that involve a systematic collaboration between public and private actors at different levels of decision-making (co-regulation). Third, control and sanctions rely greatly on a “constrained by image” system based primarily on publications of rankings and classifications of good practices.
After I present the features and contours of this alternative model, my research analyzes the political and legal discourses, as well as the schools of thought (Law and Economics / New Public Management / Deliberative Democracy / Democratic Experimentalism), that justify its existence and, therefore, its legitimacy.
Finally, my doctoral work rises the question about the lack of control over these regulatory activities and brings to light the safeguards that should be taken by the European Court of Justice to respect European Union’s Constitutional law
Doctorat en Sciences juridiques
info:eu-repo/semantics/nonPublished
Béridot, Nathan. "L'exercice du pouvoir judiciaire par la Cour suprême du Japon : Contribution à la réflexion sur l'État de droit au Japon." Thesis, Paris, INALCO, 2020. http://www.theses.fr/2020INAL0031.
Full textThe Japanese Constitution of 1946, enacted after the Defeat, represents a major change to the institutional organization by asserting the principle of popular sovereignty, a real separation of powers and fundamental human rights. In order to ensure the respect of these principles, this Constitution also endows Japan with a Supreme Court which holds the power of judicial review. Thus, the Supreme Court was called to play a major role within the after-war institutions. However, after more than seventy years of exercise of the judicial power, the observations do not meet its initial premises. Many authors note that, far from playing the major role the Constitution was destined for, this jurisdiction would be one of the most “passive” and “conservative” in the world. This work intends to discuss this qualification, which many authors agree with, both Japanese and foreign
第二次世界大戦後、1946年に公布された日本国憲法は、国民主権の原則とともに権力分立の原則を採用し、基本的人権を保障した。これらの原則を尊重するために、日本国憲法は司法機関による違憲審査制を導入し、最高裁判所に重大な役割を期待した。しかし、違憲審査権が行使されるようになってから70年以上がたった今、期待された結果は十分に達せられなかったとみられている。憲法が重大な役割を期待したことに反して、最高裁判所は世界で最も「消極主義」的であると評価されてきたからである。本論文は、日本と外国の学説が同意する、こうした性格を論じたものである。