Decree Powers and Constitutional Law in France under the Third Republic

Otto Kirchheimer

American Political Science Review, 1940, vol. 34, issue 6, 1104-1123

Abstract: In the World War period and after, the use of extraordinary powers by the executive for legislative purposes became so widespread in Europe that constitutional theorists began to find it convenient to give up the doctrine of legislative supremacy. The constitutional basis for these extraordinary powers has been found in one of two ways: either the parliament may authorize the government to exercise certain legislative functions by way of delegation, or certain provisions in the constitution may be interpreted as giving the executive the right under certain circumstances not only to take specific administrative steps, but also to issue rules of a more general character. In either case, the question invariably arises as to how far the delegation of power may go, or as to the degree to which alleged constitutional emergency provisions may be used to supersede parliamentary legislation.In France, no constitutional emergency power is provided in the “organic” laws of 1875 which could give a starting point for independent rule-making activity. A law of April 3, 1878, defined very closely the conditions under which a state of siege may be declared and surrounded such a declaration with elaborate provisions for parliamentary supervision. It is apparent that this statute does not allow the government to decree rules of a general character.

Date: 1940
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