The Online Library of Liberty

A project of Liberty Fund, Inc.

• Pubusher's Note
• Foreword
• Preface to the First Edition
• Preface to the Eighth Edition
• Introduction
• Outline of Subject: the True Nature of Constitutional Law
• Part I: The Sovereignty of Parliament
• Chapter I: The Nature of Parliamentary Sovereignty
• Chapter II: Parliament and Non-sovereign Law-making Bodies
• Chapter III: Parliamentary Sovereignty and Federalism
• Part II: The Rule of Law
• Chapter IV: The Rule of Law: Its Nature and General Applications
• Chapter V: The Right to Personal Freedom
• Chapter VI: The Right to Freedom of Discussion
• Chapter VII: The Right of Public Meeting 1
• Chapter VIII: Martial Law
• Chapter IX: The Army 1
• Chapter X: The Revenue 1
• Chapter XI: The Responsibility of Ministers
• Chapter XII: Rule of Law Compared With Droit Administratif 1
• Chapter XIII: Relation Between Parliamentary Sovereignty and the Rule of Law
• Part III: The Connection Between the Law of the Constitution and the Conventions of the Constitution
• Chapter XIV: Nature of Conventions of Constitution
• Chapter XV: The Sanction By Which the Conventions of the Constitution Are Enforced
• Appendix
• Note I: Rigidity of French Constitutions
• Note II: Division of Powers In Federal States
• Note III: Distinction Between a Paruamentary Executive and a Non-parliamentary Executive
• Note IV: The Right of Self-defence
• Note V: Questions Connected With the Right of Public Meeting
• Note VI: Duty of Soldiers Called Upon to Disperse an Unlawful Assembly
• Note VII: The Meaning of an “unconstitutional” Law
• Note VIII: Swiss Federalism 89
• Note IX: Australian Federalism 101
• Note X: Martial Law In England During Time of War Or Insurrection 121
• Note XI: Constitution of the Tribunal Des Conflits 159
• Note XII: Proceedings Against the Crown
• Note XIII: Parliament Act, 1911 [i & 2 Geo. 5. Ch. Ch. 13.]

Note XI

CONSTITUTION OF THE
TRIBUNAL DES CONFLITS159

The Conflict Court consists of the following persons:

• I.A President, the Minister of Justice (Garde des sceaux).160 He rarely attends, though he may attend, preside, and vote.
• II.Eight elected judges, namely:—
  • a.Three judges of the Court of Cassation (Conseillers à la Cour deCassation) elected for three years by their colleagues, i.e. by the judges of the Court of Cassation.
  • b.Three members of the Council of State (Conseillers d'état en service ordinaire)161 elected for three years by their colleagues (i.e. by the Conseillers détat en service ordinaire).
  • c.Two other persons elected by the foregoing six judges of the Conflict Court, enumerated under heads a and b.

These two other persons ought in strictness to be elected neither from the judges of the Court of Cassation nor from the members of the Council of State, but they are in general elected one from the Court of Cassation, the other from the Council of State.

These eight persons, who are re-eligible and usually re-elected, or, if we include the Minister of Justice, these nine persons, constitute the judges of the Conflict Court.

Then there are two substitutes (suppleants) elected by the judges coming under the heads a and b who act only when one of the judges of the Conflict Court cannot act.

There are further two so-called Commissioners of the Government (Commissaires du Gouvernement)162 appointed for a year by the President of the Republic; the one for a year from the Masters of Requests (Maîtres des requêtes), who belong to the Council of State, the other from the class of public prosecutors, belonging to the Court of Cassation (avocats généraux à la Cour de Cassation).

[159]See Berthélemy, Trailé Élérnentaire de Droit Administratif (5th ed.), pp. 880, 881; Chardon, L'Administration de la France, p. 411.

[160]A Vice-President, who generally presides, is elected by and from the eight elected judges of the Conflict Court.

[161]Conseillers d'état en service ordinaire are permanent members of the Council of State. They are contrasted with Conseillers en service extraordinaire, who are temporary members of the Council, for the discharge of some special duty. See Berthélemy, p. 126.

[162]The name may be misleading. These commissioners are, it is said, absolutely free from pressure by the Government. They are representatives of the law, they are not strictly judges, the opinions which they express often disagree with the opinion of the representative of the Government, viz. the prefect, who has raised the conflict, i.e. has brought before the Court the question whether a judicial court has exceeded its jurisdiction by dealing with a question of administrative law.