supreme court
supreme courses, jurisdictional bodies located at the
top of the legal hierarchy of a country.
The concept of court supreme varies deeply according
to the legal systems of the States. Indeed, the role of a court is truly
"supreme" when there is only one higher jurisdiction in the legal
organization of the State (case of the United States and Canada), having an
extremely broad competence in all the fields of the legal, legal system and
policy of this State. Contrary, it may be that a court is known as supreme
because it is located at the top of an order of jurisdiction, but that the
existence of another court, also supreme for another order of jurisdiction,
comes to limit its supremacy to the level of the whole of the legal and
political institutions of the State (case of France, Italy and Belgium).
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SUPREME COURT OF THE UNITED STATES
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Supreme court of the United States
This majestic marble building of
Washington D.C. shelters, since 1935, the supreme Court of the United States.
It is the American architect Cass Gilbert who is the author of this neo-classic
structure, symbol of the power of the Court.
In the first direction, it is quite clear that the
Supreme Court of the United States is the supreme Court par excellence. Sitting
in Washington, capital of the federal State, this one have a plenitude of
competences, which means that it is not only qualified to rule out of legal
matter on all the litigations in call formed in front of it, but also to appreciate
the validity of the laws compared to the American Constitution. It is thus at
the same time a constitutional court and a legal court. There does not exist,
in the United States, of another of the same jurisdiction row, whose role would
come to imitate or limit to it his. All the courts and run of call of the State
are lower to him. Its supremacy on the whole of the legal institutions is thus
particularly of primary importance. The role of the American Supreme Court,
whose international fame is with the measurement of its power in the legal
system of the United States, is exemplary. It is justified by the history and
the American tradition, but also by the political structure of this State,
which is a federal State: the American Constitution of 1787 works out a
division of the capacity between the States known as federate and the federal
State, which is superimposed on the federate States. This distribution of the
capacity on two levels, that of the federal State (or central State) and that
of the federated State, must be protected, in order to preserve the political
form of the State. In the American system, it is thus allocated to the Supreme
Court to guarantee the federalism. One generally finds the same type of Supreme
Court in the States with federal structure; their role is particularly
essential (the ex-USSR, Canada), as well at the legal level as with that of the
political institutions.
The characteristics of the composition and the work of
the American Supreme Court show the extent of its competences. It is made up of
nine members (justices) irremovable (in
practice, it happened that certain of these judges resign at the seventy years
age, whereas that is not obligatory), in order to guarantee their independence
compared to the political power. The judges of the Supreme Court are named by
the president of the United States, which despite everything is a particularly
manifest factor of dependence, even if it is corrected by the principle of
irremovability. They are generally selected according to their
socio-professional competences. Their nomination must be confirmed officially
by the Senate and it happened that this one refuses that of an applicant, which
represents a true public affront for the president (two refusal under Nixon,
three Reagan pennies).
Judges of the supreme Court of the
United States
The supreme Court of the United States
is made up of nine judges, of which president (Chief Justice), named with life
(by the president of the United States with the approval of the Senate) and
irrevocable. In 2006, sit there (sitted, of left on the right) Anthony Kennedy,
John Paul Stevens, John Roberts (the president), Antonin Scalia and David
Souter; upright, of left on the right: Stephen Breyer, Clarence Thomas, Ruth
Bader Ginsburg and Samuel Alito.
Matthew Cavanaugh/EPA/Landov
Under its constitutional matter competences, the Court
can check if the law passed by a legislative body (the Congress) is in
conformity with the Constitution. Thus, if the Court estimates that the law is
not in conformity with the Constitution and/or its amendments, it can declare
it unconstitutional and draw aside it. It is what one calls the
judicial review. This competence was
not registered in the Constitution of 1787; it neither was envisaged, nor
prohibited, but the Supreme Court quickly conquered this capacity in an
extremely famous and very daring stop with respect to the capacity, which
constitutes all the base of the American constitutional law: the Marbury stop
counters Madison of 1803. The Supreme Court has by this decision subjected the
capacity to the Constitution, such as it exists in its form written, and worked
out a technique of questioning possible of the law, the
judicial review, by jurisdictional
control. From now on, it is allowed that the law, whereas it was already voted
by the Congress, can be called into question,
a posteriori, as for its constitutional validity by the
Supreme Court. Thus the American Supreme Court gained in power and authority.
Today, the principles of the tender of the capacity to the Constitution and the
jurisdictional control of the laws are acquired, and of many foreign countries
adopted them as democratic principles.
In addition, the Supreme Court has jurisdiction in the
disputes which are carried in call in front of it. In this respect —and contrary in the majority of the courses
higher of the States—, a system of selection of the businesses which it will
examine in last spring is carried out. As a higher legal judge and of last
call, the Supreme Court examines, indeed, only the businesses likely to contribute
a share to the state of the right, and its decisions, which relate to essential
aspects of the American social life (right to the abortion, death penalty,
rights and personal freedoms), are the subject generally of a very great
mediatization.
France does not know court equivalent to the American
Supreme Court, which explains a certain number of reasons, especially
historical, but also cultural. The French tradition is that of the unit State,
i.e. there is one capacity, exchange and exclusive. There is one Parliament and
its competence is national; in spite of the phenomenon of decentralization, the
French Republic is an indivisible republic (article first of the Constitution
of October 4, 1958). In addition, France inherited the French revolution a
duality of the jurisdictional orders, by the famous law of August 16-24, 1790,
which states solemnly that "the legal functions are distinct and will
remain always separate administrative offices".
Consequently, there exists in France of the legal
jurisdictions, which rule on the litigations of private law (interesting the
relationship between the individuals, like the commercial law, law the labour
or civil law), and of the administrative jurisdictions, which rule on the
litigations of public law, i.e. relating to the activity of the State
(administrative law). The respect of the principle of separation is thus
ensured. Each one of these kinds knows a specific hierarchy; at the top is the
supreme jurisdiction, the Supreme court of appeal and the Council of State.
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Supreme court of appeal
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The Supreme court of appeal is located at the top of
the courts and Courts of Appeals of the legal order; in Paris, it is a judge of
the right only. In that, it is not a jurisdiction of third degree (after the
second degree, which is the call); its role is confined with the examination of
the right, in opposition to the bottom. Seized of "appeals in
cassation" (name given to the recourse formed in front of it), it thus
will decide if the right correctly were interpreted and applied in the
litigation by the lower jurisdictions, but it will not decide a qualification
of the facts of the litigation. It is also in that that the Supreme court of
appeal is supreme, because it is the highest jurisdiction: the rejection by it
of the request for a part involves the final classification of the business.
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The Council of State
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The Council of State, created by article 52 of the
Constitution of 22 Frimaire year VIII (December 13, 1799), is the supreme
jurisdiction in the dispute of an administrative nature. He is a judge of
cassation: there its higher role in the administrative hierarchy is expressed.
This role for the first time was allotted to the Council of State by the law of
November 18, 1940 —what is recent
compared to the seniority of the institution. It is thus with the Council of
State alone which returns the task to say if the right were indeed applied by
the administrative courts and the courses administrative of call which are
lower to him, to the image of the function allotted to the Supreme court of
appeal in the legal order. The possibility of forming an appeal in front of the
Council of State unlimited and is recognized, even if no text envisages this
possibility expressly.
In addition, the French Constitution of 1958 (in its
title VII) entrusts for the first time the examination of the conformity of the
laws to a jurisdiction, a constitutional court, which one locates apart from
the legal hierarchy, as "a class with share": it is about the
constitutional Council. Its supreme character is thus dubious, even if its
decisions are supreme since they are not likely of call.
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The constitutional Council
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The constitutional Council is qualified to examine
whether the law in preparation before the Parliament is in conformity with the
Constitution. This examination will be however carried out only if the
constitutional Council is received, which depends on goodwill authorities
having the right of sasine (the president of the Republic, the Prime Minister,
the president of the French National Assembly, the president of the Senate, or
sixty deputies or senators, according to article 61 of the Constitution). If nobody
seizes the constitutional Council, then any judge, of the Supreme court of
appeal or the Council of State, will not be able to declare the law not-in
conformity with the Constitution.
The truly jurisdictional statute of the constitutional
Council was the subject of very many debates, since this one examines the
conformity of the laws before their promulgation, and not afterwards, and that
no litigation opposed truly parts. The control of the constitutional Council is
a control exerted a priori, contrary to the
control carried out a
posteriori in the United States by the Supreme Court.
In France, there is not thus supreme court to be
strictly accurate, since as well Supreme court of appeal as the Council of
State are supreme within their own system of jurisdiction, and than the
constitutional Council does not enter any hierarchy other than his. The meeting
of attributions of these three bodies would correspond to the whole of
competences reserved for the American Supreme Court, but the political system
French interdict which are thus gathered so much of capacities between the
hands of only one body.
Indeed, the fear of a "government of the
judges" encourages the States not to give too supreme character to only
one jurisdiction. The democracy, according to the traditional design, requires
that the capacities be strictly separate from/to each other (even if a
collaboration between them is wished), and the example of the Supreme Court of
the United States shows that the capacities of which it lays out make it
possible him to create right in a very great measurement, and thus to encroach
on the capacities of the executive and the legislature. The French
revolutionary tradition makes law the supreme reference, and only the
representatives of the people can adopt it. The judges are confined with the
simple role of interpretation (and not of creation) of the right.
In the United Kingdom, it is the House of Lords which
fills the supreme role of jurisdiction, but it is connected more with one
jurisdiction of third degree (in that, it approaches the American Supreme Court
in its legal function).It is not qualified to decide conformity of the law to
the Constitution (which usual and is not written), Great Britain estimating
that this would call into question the mode of the democratic parliamentarism
which it applies.
Exceeding the framework of the national institutions,
at community level, the function of the European Court of justice led certain
authors to discuss the question of knowing if this jurisdiction were supreme
compared to the whole of the Member States and their national jurisdictions.
Indeed, the European Court of justice, whose seat is in Strasbourg, has the
role essential to make apply the Community legislation inside the Member
States, which necessarily passes by the respect of its decisions by the highest
national jurisdictions, even supreme (in order to respect the principle of the
precedence of the Community law on the national laws, posed by the decisions of
the Court, Costa against ENEL, July 15, 1964). The hierarchy which was
essential plays in favour of the European Court of justice, but the prejudicial
mechanisms of the recourse (reference by the national judge of a question in
interpretation or appreciation of validity of a Community standard at the
Court) supported collaboration between the supreme jurisdictions of the Member
States and the European Court of justice. An abstract hierarchy thus emerged
thanks to this collaboration, which is a positive sign in favour of Community
construction.
If the unit of the jurisdictions seems to be a
significant factor, even necessary to the democracy in a State, the concept of
court supreme is indissociable political and legal system of the State in
question.
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SUPREME COURT OF CANADA
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Thus, the Supreme Court of Canada made the experiment
of a certain number of contradictions and difficulties, which result from its
lack of constitutional legitimacy. The will to create a court with the image of
that of the United States sufficiently did not take into account the
specificity of Canada as a dominion of the British Crown, which a long time
obstructed the mission of the Supreme Court of Ottawa. The Canadian Supreme
Court was created in 1875 by a simple law of the Parliament, under a general court
of call. Just as that of the United States, the Canadian Supreme Court
includes/understands nine judges; it acquired the plenitude of its competences
only with the adoption by Canada of a Charter of the rights and freedoms
allowing him émanciper and to sit its legitimacy within the institutions of the
Canadian State.
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SUPREME COURSES AND DEMOCRACY
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The authority of the supreme courses thus varies
according to their attributions, such as they are conferred by the Constitution
(or the law, if necessary), and from the implementation of the institutions of
the State by the political actors. The introduction of supreme courses fulfills
the requirement of certain democratic principles. Indeed, the ideology of the
democracy, such as it was described by Montesquieu, claims that the capacities
are counterbalanced, in order to prevent the hegemony of only one source of the
capacity. The supreme courses (with the legal direction) are intended to
support the interest of the citizen, who can act in front of them, by the way
of the recourse successive. Lastly, the supreme courses ensure the transparency
and the credibility of the right near justiciable, ordinary citizens. The
meeting of the constitutional and legal matter capacities between the hands of
only one body, as in the United States, is very exceptional. Being given the
role, considered to be very excessive by certain commentators, of the American
Supreme Court, few States, indeed, are ready to as many recognize with only one
jurisdiction capacities. No system is universal, nor transposable of a State
with another, as shows it the Canadian example, and the creation of a supreme
Court requires that the institutions of the State attach solids guaranteed of
independence and recognition to the institution, so that this one can fill its
role and enjoy legitimacy and autonomy essential to its mission.
