RUDN Journal of Law (Dec 2016)
The Public Interest as Constitutionality of Laws Criterion: French Doctrine and Practice
Abstract
The article is devoted to genesis, doctrinal interpretation and practical application of the concept of the public interest in French law. The modern interpretation of the public interest goes back to the concept of the common will J.-J. Rousseau. French doctrine does not consider the public interest as a set of private interests, but on the contrary, opposes it to them. The public interest is understood as the common will of the nation and has priority over the interests of individuals. Public interest is both a base, and a restriction of the activities of public authorities, which should ensure its implementation, but can not act beyond necessity for that. The French Conseil d'État and administrative courts used the concept of public interest in order to control the legality of public administration activity. The act of executive authority, pursuing goals that do not meet the public interest, recognized as illegal and subject to cancellation. On the basis of analysis of decisions of the Constitutional Council and researches of French lawyers the author justifies the assertion according to which the public interest is considered one of criteria applied for assessment On the basis of analysis of decisions of the Constitutional Council and researches of French lawyers the author justifies the assertion according to which the public interest is considered one of criteria applied for assessment of quality of laws. The Constitutional Council is guided by the principle of proportionality. If the law provides for the limitation of rights and freedoms, they must comply with the objectives of public interest and is not excessive. The Constitutional Council shall consider the nature of the rights and their constitutional importance, applying different standards of the public interest to various rights. The author emphasizes that the French doctrine and case law have not developed a universal definition of public interest, its meaning is largely reduced to correspond to the common will, and the criteria of the public interest established by the resolution of specific cases. Despite the fact that some legal theorists doubt the effectiveness and validity of the public interest concept when it comes to creating new laws and regulations as well as for the Constitutional Council, the Conseil d'État and the administrative courts decision-making, this bodies continue referring to this concept within the framework legality control of executive acts and constitutional review of laws.
