Editorial
| DOI | 10.1093/slr/3.1.1 |
| Pages | 1-6 |
| Date | 01 March 1982 |
| Year | 1982 |
| Published By | Oxford University Press |
Editorial
They Order Things Differently...
From time
to
time the compilation of the Materials
on
Legislation section of the
Review is
a
source
of great editorial temptation. It is to inflate the summary of a
particular item to such an extent that it would become a lengthy paraphrase
rather than a relatively brief precis. Apart from breaching the principle of
proportionality in
its
application to the Materials on Legislation
section,
such a
step might well trespass on the territory of
the
contributors. But the editorial
page* are an appropriate place for the treatment of an article which deserves
more than a summary in a later section. To adopt and adapt a saying first
uttered a century ago, the only thing to do when faced by such a temptation is
to succumb to it
The article which prompted the generalisations in the previous paragraph,
and consequently
this
editorial, is fascinating in its tide and distinguished in its
authorship. It appeared in the October 1981, issue of the
International
and
Comparative Law
QjmteHj,
it is
entitled
"The
Role of the Conseil
d'Etat
in
Drafting
Legislation," its author is M. Bernard Ducamin and it was translated by Sir
William Dale. Add to these bibliographical details that die learned author is a
Conseilleurd'Etat
who was
for
eight years Secretary General of the
ConteU
d'Etat,
and that his article was delivered as a lecture in Colombia in 1980, and die
editorial temptation becomes irresistible.
The Constitutional Background
In a couple of succinct pages M Ducamin traces die
origins
of the Conseil
d'Etat
from die thirteenth-century royal counsellors on juristic matters (robustly
termed "law-men") to die end of
the anden
rtgant,
pointing out that since die
king was die source of all justice diere was only a distinction in form between a
regulatory
ordonnance
prepared by die Conseil
d'Etai
for
die royal signature
and
a
decision, similarly prepared, for die king's decision of a litigated
dispute.
Then,
in its Napoleonic reincarnation in 1799 die
Conseil
d'Etat
played an important
part in die drafting of those great Codes which are such large landmarks in die
civil law. But consultation on Parliamentary Bills (though not on decrees) fell
into desuetude over a century ago. Then in 1941, under die de Gaulle
Provisional Government, die
foundation
of a
Comttfjuridique to
prepare laws for
liberated territories led eventually to die present consultative role of die
Conseil
d'Etat
in die preparation of
laws.
This is a brief summary of what is in itself a brief summary, but
M. Ducamin's constitutional scene-setting is useful not only
for
die logic of his
artide but also
for
readers from other jurisdictions. For example, die functions
of royal counsellors in die mediaeval period invites a comparison with die
origins of die institutions of government under die common law system,
sometimes summed up (though perhaps too succincdy) in die phrase The
king has his
court in his council in his parliament"
But,
spanning die centuries,
St. Stephen's and Westminster Hall were very distinct sources of power at die
end of die eighteenth century—events at die end of die seventeendi century
1
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