Government lawyers and the training of senior civil servants. Maintaining law at the heart of the French state

Abstract

To assess the influence of law and jurists in the conduct of contemporary French state, this article examines the role of the Council of State at ENA (École Nationale d'Administration), the main school for top civil servants. Although the study reveals the decreasing part of law in the bureaucratic capital over the past fifty years, it also shows how government lawyers have resisted this downsizing process. The teaching of a subject called ‘legistics’ provides top officials with a different view of law. Dedicated to promoting the political utility of law, legistics complies with managerial values while it sticks to the Weberian model of bureaucracy. As a result of the introduction of legistics, new techniques of legal drafting have been spreading within French public administration. Legistics thus plays a role in the contemporary reshaping of public legal practices, as well as in the renewing of legal legitimacy in the reform of public affairs.

Acknowledgements

This article forms part of a comprehensive research project on the legal education of French elites, which is funded by the French research agency ANR: http://www.cmh.ens.fr/elidroit/hoprubrique.php?id_rub=4. The authors thank Angèle Christin, Fiona Cownie, Jean-Michel Eymeri-Douzans, Didier Georgakakis and Lynn Mather, as well as the journal referees for their feedback on previous versions of this article.

Notes

Since the late nineteenth century, councillors of state have taught at the École Libre des Sciences Politiques (renamed Institut d'Études Politiques de Paris, aka Sciences Po Paris, in 1945), which gradually monopolized the high-level civil service training before the ENA was created. From 1958 to 2007, one councillor of state out of five had taught, generally at either Sciences Po Paris or the ENA (Rouban, 2008, p. 40).

The members of the Council are split into three career groups, depending on their seniority. Auditors (auditeurs) are young alumni from the ENA. They become masters of petitions (maîtres des requêtes) four years after their hiring. Senior members are called conseillers d'État. To simplify our text, we refer to all of them as councillors of state.

The best-ranked students were offered the most prestigious state positions, especially within the Grands corps. Four hundred and fourteen énarques entered the Council from 1958 to 2008 (Rouban, 2008, p. 43).

A ‘curriculum committee’ was also established. It was composed of the ENA directory staff, the Director General for Administration (who was a member of the Council of State from 1963 to 2005), members of the faculty and students. Its proposals had to be approved by the board.

The first ENA director, Henri Bourdeau de Fontenay, was a lawyer, closely linked to Michel Debré and Pierre Racine. He joined the Council of State at the end of its mandate at the ENA in 1963.

The following section is mainly based on ENA and Council of State archives, stored at the Contemporary Archives Centre (Centre des Archives Contemporaines). They are referred to as: CAC + ENA or CE + [box number].

CAC, ENA, 19790447-198, curriculum committee meeting, 17 December 1959; 19790447-12, board meeting, 18 November 1960.

CAC, ENA 19790447-12, board meeting, 15 May 1959.

Ibid.

Until 2007, law faculties, which are public university undergraduate programmes, possessed a monopoly over legal education.

CAC, ENA 19790447-198, curriculum committee meeting, 15 July 1953.

Law faculty graduates accounted for more than 60% of ENA students in the 1950s and 1960s.

CAC, ENA, 19790447-198, curriculum committee meeting, 8 November 1956.

CAC, ENA, 19960234-1, board meeting, 16 June 1987.

A course called ‘Public Management’ was created in 1981 and lost the epithet of ‘public’ in the 1986 schooling reform, while training in communication, oral expression and negotiation was made compulsory.

He gave a class at the ENA in 1958, returned in 1969, and belonged to the teaching team that supervised the seminar on public decision. In 1983, he chaired the evaluation of reports on ‘Innovation and Government’. He was closely linked with Pierre Racine (CAC, ENA, 19790447-50, documentation of the Direction).

CAC, ENA, 19790447-7, board meeting, 28 June 1957.

CAC, ENA, 19790447-199, curriculum committee meeting, 9 December 1961.

CAC, ENA, 19790447-200, curriculum committee meeting, 23 September 1975.

CAC, CE, 2005574-45, ‘Extract of the Annual report 84–85’.

As Caillosse (1999) demonstrates, its jurisprudence has been opening to economic reasoning and to the values of performance and efficiency.

Councillor of State Yves Cannac (1983) wrote: “For many reasons, the Council of State is able to produce useful studies. On the one hand, it is sufficiently invested in government and administrative action, and sufficiently in the background. On the other hand, it masters a well defined ‘speciality’ – public law – and has a broad enough and ‘pluridisciplinary’ view of state life.”

The promotion of the consultative function must be linked to criticisms towards administrative jurisdiction, and the wish, expressed by many of its detractors, to suppress it. As a councillor notes in an internal report: “The juxtaposition, as well as the equal vitality of the judicial and consultative functions, is one of the principal arguments to counter the idea […] of renouncing to the autonomy of administrative law.” Nicole Questiaux, Document de travail sur les sections administratives, May 1992, CAC, CE 20080196/43.

Apart from the ENA, there are schools for lower-ranking civil servants, for local civil servants and for state engineers.

Ordonnance du 31 octobre 1945, article 24.

CAC, ENA, 19960234-1, Board Meeting, 16 March 1986.

CAC, ENA, 19920145-2, Letter from Dominique Latournerie to Simon Nora, 25 August 1982.

CAC, ENA, 19920145-2, file: ‘Great conferences’.

This does not mean that the figure of the administrative judge has completely disappeared. It stands in the shadow, through the threat of ‘litigation risk’: a badly written text could generate litigation, as professors often remind students.

Rouban (2008, p. 33) calculated that 87% of councillors of state had law degrees in 1958. This figure dropped to 48% in the 2000s.

CE Ass. 24 March 2006 Société KPMG et autres. For reasons of convenience, we will keep the French formulation of court decisions.

These two topics relate to the pressure towards performance, which has been extensively studied by political scientists, notably Heinrich and Lynn (2000).

As part of a continuing education programme, some ministries organize sessions dedicated to legistics. The ENA legistics professor offers those courses to three ministries.

Known as the Department for Administration, it is touted as a means to improve the quality of regulation: www.conseil-etat.fr/cde/node.php?articleid=596.

As stated in its 2010 activity report, the Council of State was asked 289 questions by the administrative courts. It made 230 decisions and 60 referrals to the Constitutional Court.

Décision n° 99-421 DC du 16 décembre 1999, décision n° 2007-561 DC du 17 janvier 2008; décision n° 2005-530 DC du 29 décembre 2005; décision n° 2004-500 DC du 29 juillet 2004; décision n° 2000-435 DC du 7 décembre 2000; décision n° 2005-530 DC du 29 décembre 2005; décision n° 2003-473 DC du 26 juin 2003.

Loi du 8 février 1995 sur les pouvoirs d'injonction et d'astreinte du juge administratif; loi du 30 juin 2000 sur les référés administratifs; ordonnance du 4 mai 2000 (code de justice administrative).

The 2008 symposium issue gathered 15 authors, six of whom are councillors of state. This group is the largest among authors from the civil service.

“Hâtez-vous lentement, et, sans perdre courage, Vingt fois sur le métier remettez votre ouvrage: Polissez-le sans cesse et le repolissez; Ajoutez quelquefois, et souvent effacez”, L'Art poétique (1674).

CE Ass. 20 octobre 1989, Nicolo.

Loi n° 2000-597 du 30 juin 2000 relative au référé devant les juridictions administratives.

Sacilor Lormines v. France, European Court of Human Rights, Third Section, 9 November 2006. Although the Council of State was not condemned by this judgment, it decided to separate formally its function of advice and its function of judgment (décret n° 2008-225 du 6 mars 2008 relatif à l'organisation et au fonctionnement du Conseil d'État).

As in other OECD countries, French regulatory policy has been evaluated within the framework of OECD regulatory reform initiatives. The reports on France (OECD, 2004, 2010) depict the Council of State as an important actor in the improvement of French regulation.

http://ec.europa.eu/governance/better_regulation/key_docs_en.htm. The report was translated in French (Mandelkern, 2002). Mandelkern also chaired the High-Level Advisory Group on Better Regulation appointed by the European Commission in 2000. Another councillor of state, Jean Maïa, now belongs to the High-Level Group of National Regulatory Experts set up by the European Commission in 2006.

According to Ribadeau Dumas (2007, p. 84), three junior councillors of state are legal advisers in different European departments; one senior councillor is the Jurisconsulte of the European Council (another had the same job at the European Commission). The European Court of Human Rights was headed by a French Councillor until November 2011. Others have seats at the International Court of Justice, the Court of Justice of the European Union and the European Civil Service Tribunal.

Warsmann (2008, p. 12) and Maïa (2008, p. 21) referred to the Parliamentary Counsel office in the UK. Gilberg (2008, p. 48) listed several books on legistics in the US, Belgium and the Netherlands. Bergeal (2008a, p. 35) mainly wrote on the Canadian example.

This goal is assessed in the Regulatory Reform Act 2001 in the United Kingdom. In the United States, since 1978, the Governmental Accountability Office has led periodical ‘sunset reviews’ to remove unused laws and revise laws according to their effects.