CONSTITUTIONAL CONVENTIONS BETWEEN THE LAW AND POLITICS
Constitutional conventions have gained the ground of constitutional law for a long time now. It is already stated in the Dicey’s work that rules which make up constitutional law include two sets of principles: the law of the constitution and conventions of the constitution.
- Britain is particularly known for its constitutional conventions due to their central place in the workings of the government. However, the “unwritten” nature of the British constitution should not mislead us to assume that conventional rules are originality of countries without formal constitution. In the United States conventional rules have never been at question and there are those who claim that the conventional element in the constitution of the United States is as large as in the British constitution.
- Australia and Canada are other notable examples of countries where conventions have acquired status civitatis.
- Furthermore, conventional constitutions are not restricted to the countries of the Common Law. They can also be found in the members of other legal families, even in those which are particularly known for their reverence of written sources of law, and the three French republics – the Third, Fourth and Fifth – are undoubtedly among them. In other words, it is essential to realize that in all countries usage and convention are important and that in many of them which have Constitutions unwritten rules of conduct play as important a part as they do in Britain.
- Dicey was certainly not the first to write about the constitutional conventions,
- But it was his seminal work Law of the Constitution which gave the classical exposition of the conventional rules and set the stage for the further discussions about their nature and defining characteristics. This article embraces the basic premises, implied already in the Dicey’s writings, that conventional rules are the result of the consensus among political and constitutional actors concerning the interpretation of legal norms. Certainly, conventional rules will be multifarious and different, in proportion to the open texture of the Constitution, but they can also go contra constitutionem, if the circumstances prove to be favourable to such a development. Accordingly, conventions are developed through practice of constitutional organs in a particular interplay with the written norms of the constitution interpreting, innovating, contradicting or annulling them. Seen as an integral part of the constitutional system, constitutional conventions fundamentally undermine the traditional notion of the constitution. Contrary to general belief that the constitution is a system of legal rules, it appears to be rather a set of constitutional organs which mutually limit each other in the process of constitutional interpretation.
This concept of the constitution is tested then against the conventional evolution of the Fifth French Republic. Rich panoply of conventions, developed on the margins of the constitutional text, for the past fifty years, have made the French constitutional system swing
from the presidentialist to the semi-presidential form depending on the purely political contingencies: existence or non-existence of the cohabitation. Consequently, a distinction is drawn between a constitutional regime and constitutional system.6 Constitutional regime is a legal structure, a body of rules organizing the distribution and exercising of powers. This juridical ensemble necessarily comes into interplay with another ensemble of political forces, electoral majorities, and usages, briefly speaking – political life (la vie politique). As a result, there is a third ensemble – a constitutional system – made up of conventional rules, which are in themselves a product of the interaction of the constitutional regime and political life. Applied to the case of the Fifth French Republic, it can be inferred that it has a semi-presidential constitutional regime and a presidentialist constitutional system. Semi-presidential regime and presidentialist system, the latter coming from the former and the political life developed on the basis of it, those are the categories that the Fifth Republic has introduced and which enable its better understanding.
2. DEFINING CHARACTERISTICS OF CONSTITUTIONAL CONVENTION
Constitutional convention is established in the interplay of different, but interrelated factors. They are constitutive elements of a convention and define its character. These elements are: consensus iuris and political principle underlying the convention. A precedent supporting the rule should also be added here, as an element of the convention, although it can not be considered as a factor of its creation.
2.1. SUBJECTIVE ELEMENT – CONSENSUS IURIS
Consensus on the terms of the rule is a subjective element of the convention. Namely, convention presupposes an agreement between political actors and constitutional observers concerning the interpretation of the relevant legal norm. It follows that convention is established on the basis of interpretation of the pre-existing legal sources (formal constitution, statute, custom etc) and that it rests essentially upon general acquiescence.
2.1.1. Pluralistic nature of a convention
General agreement, as one of the two constituting factors of a convention, has always been highly valued. Mere practice has never been considered sufficient for a conventional rule to be established. The plurality of the convention makers and their consensus, explicit or implicit, are, therefore, essential for its existence. This is why Sir Ivor Jennings insists that we have to ask ourselves if “the actors in the precedents believe(d) that they were bound by a rule”.In other words, convention without conviction degenerates into a usage.
Conditioned by an opinio iuris, convention can not arise out of political violence. A forceful action of a single political authority imposing its own will on other constitutional actors in a way that they can not democratically object to it, can not be considered as a convention.Accordingly, a unilateral behaviour can only be qualified as a practice and never as a convention. At the same time, this does not prevent a unilateral interpretation from becoming eventually a conventional rule, once there is a subsequent agreement convalidating it (l’accord ultérieur). In the same way, there can be dissenting voices to an accepted conventional rule, which may prevail one day, overturn an old convention and replace it with a new one.
The protagonists involved in the creation of a conventional rule include primarily political actors and constitutional organs, but also academic community, judges and the concerned public. An empirical investigation of their consensus would necessarily include parliamentary debates, press conferences, television speeches, published diaries as well as academic works which politicians readily and subjectively quote. The role of the academic community is usually underestimated, although constitutional authorities have been irreplaceable in synthesizing precedents and politicians’ beliefs in order to determine where the consensus of opinion lies and what reasons are at stake in a particular situation.
2.1.2. Convention is a result of interpretation
Although it is readily accepted that a conventional rule reflects a public consensus, not too many authors emphasize that it is a consensus iuris – an agreement on the interpretation of a written legal norm. A consensus between political actors is usually treated independently from a formal constitution and other legal sources. Dicey’s remark that conventions are, in main, precepts for determining the spirit in which all the discretionary powers are exercised by the executive, “otherwise than under statutory authority,”speaks for itself. Partially quoting the other authority, Geoffrey Marshall is content to say that “there may be an agreement among the people concerned to work in a particular way and to adopt a particular rule of conduct”.
On the other side, Jennings argues that “conventions grow up, around and upon the principles of the written constitution”.Similarly, Sir Kenneth Wheare suggests that by convention it is meant “a rule of behaviour accepted as obligatory by those concerned in the working of the Constitution”. Speaking of the political practice (which squares with the notion of the constitutional convention), Laferrière clarifies that a formal constitution may entrust constitutional actors with a discretionary power, enabling them to act pragmatically, within the limits of the given political reality, and to develop, in the end, a political practice.
However, the most significant investigation into the interrelation between conventional and legal rules we find in Pierre Avril’s Les conventions de la constitution. His principal standing is that conventions are not outside the law, since precedents embodying them are not mere facts, but rather legal acts. Convention makers are political actors indeed, but they are, at the same time, constitutional organs, acting within the constitutionally conferred powers.What Avril’s arguments amount to is that there are, within the single body of law, three distinguishable layers of norms: a superior layer, consisting of substantial and procedural rules, stated in the Constitution itself; an inferior layer, encompassing those norms which are the result of the application of the former; and, an intermediate layer, grouping essentially constitutional norms determining the mode in which the prerogatives of the constitutional organs (superior norms) are to be exercised in creation of the inferior ones. These intermediate norms precondition the application of the Constitution and therefore make part of l’ordre constitutionnel normatif.
2.1.3. Conventional establishment of the Fifth French Republic
If one is to distinguish a constitutional regime from a constitutional system, or a normative constitutional order as Pierre Avril put it, then the origins of the Fifth Republic’s constitutional system are to be looked for in the 1962 referendum on the mode of election of the head of state. This referendum gained the legal force in a conventional manner, through popular voting, having as a consequence the formal revision of the 1958 Constitution and convalidation of the previous presidentialist practice. The success of De Gaulle’s sudden initiative to introduce direct presidential election demonstrates how convention arises out of public consensus, on the bases of the interpretation and application of the pre-existing legal norm.
There was little doubt, in the doctrine, that the decision to call a referendum, on a constitutional issue, by invoking article 11 of the Constitution which determines as the object of the referendum “any project of law concerning the organization of public organs” (tout projet de loi portant sur l’organisation des pouvoirs publics), was unconstitutional. Its arguments were principally based on the fact that the procedure for the revision of the Constitution was defined in a special chapter entitled “De la révision”, which would be made pointless if there was an alternative procedure for the constitutional revision. Those who defended presidential decree on referendum insisted that the wording of the article 11 was not clear since it did not specify whether the term “any project of law” referred to the constitutional, organic or ordinary law and that in the silence of the Constitution article 11 can be invoked for the revision of any category of law. Le cartel des non, synonym for the political elite of the Forth Republic, took part itself in the battle, opposing vigorously the announced changes and denouncing the establishment of the new system of government as coup d’Etat and enlightened bonapartism.
The final verdict was given on October 28 1962 by the voters who endorsed (13 million to 8 million), the project of the direct election of the President of the Republic.The effect of the referendum was that not only the substance of the constitutional revision was legitimized, but also its procedural aspect. In other words, the popular support, the expressed consensus of the people, put an end to the constitutional dispute and transformed a simple practice into a convention. As Sieyes pointed out: “In whatever way a nation wishes something, it suffice that she wishes it. All the forms are good and its will is always the supreme law”. The Constitutional Council understood well this logic and declared inadmissible the demand for the review of the constitutionality of the approved law, stating that the laws “adopted by the people on a referendum are a direct expression of the national sovereignty”.
It comes out, as René Capitant emphasized, that the convention is a rule of behaviour directly decided by the nation. If nation is sovereign and if it holds the supreme power, from where all other powers derive, than it expresses itself through a convention and founds the legal order. No matter what limits written law fixes for its modification, the possibility of a conventional revision always remains open and the abrogating force of the revolutions is only an aspect of the normative force of the convention.
2.2. IDEAL ELEMENT – UNDERLYING POLITICAL PRINCIPLE
Besides the consensus iuris, conventional rules are characterized by belonging to the accepted system of values of their time. In that sense, not any public agreement will be described as a convention, but only the one which is backed up by a vital constitutional reason. Since the importance of the political reason, as well as the level of consensus supporting it can vary, it is possible to distinguish different categories of conventional rules.
2.2.1. The importance of the political reason lying behind the convention
The creation of a convention is due to the reason of the thing – it accords with the prevailing political philosophy. Namely, conventional rules enable the operation of the political principles which define the essential characteristics of the constitution. A whole string of precedents without such a principle will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it. Accordingly, a convention is formulated on the basis of an acknowledged principle of government which provides a reason or a justification for it.
Being the part of the established system of values, convention is distinguished from a simple practice which may go against the dominant ideology. Simple and single practice, even when it is supported by a consensus iuris, can only be an indicator of the possible change in the prevailing political philosophy and can not be, in itself, a way to establish new constitutional order. Accordingly, conventions presuppose an ideal element – a principle of political morality which lies behind a rule. The role of the principle is to determine which conventional rule will prevail in case of their conflict. The fundamental importance of the principle, on the other hand, can be measured by the degree to which the constitution would function differently in its absence.
In liberal democracies convention is in its origin pluralistic and in its end supportive of the rule of law and the rule of people. Dicey noticed that all conventions have one ultimate object: to secure that the Parliament and the Cabinet shall in the long run give effect to the will of that power which is the true political sovereign of the State – the majority of the electors. Or more briefly, convention “helps to make the democratic system operate”.
2.2.2. Categories of conventional rules
Andrew Heard distinguishes five different types of informal rules, on the basis of the variation of the factors creating them: general consensus and underlying political reason. Their relation to the political principle is the most important factor discerning the sort of obligation which should be attached to certain behaviour or which rule should prevail when several of them are in conflict.
Fundamental conventions are basic to the constitution and must be continuously observed. Any breach of the terms of these rules would produce significant changes in the operation of the constitution since they embody vital constitutional principles and are supported by general agreement. Meso-conventions must be respected, although their specific terms may be altered without any drastic change to the functioning of the constitution. These rules ultimately protect widely accepted and important constitutional principles, but do not necessarily incorporate those principles closely. Semi-conventions prescribe a desirable manner of conduct, but may be occasionally disregarded without significant impact. These breaches may occur because the terms of the rule are sufficiently far removed from the political principle they support; or because the principle to which the rule is related does not have a significant role in the basic ordering of constitutional processes.
These three types of conventions all share a common characteristic – the general level of agreement which supports them. There is a fourth group of infra-conventions, which are not true conventions, but rather proposals of behaviour, since they lack general acceptance over the principles involved. They are supposed by some actors to be conventions and are contested by others, which takes away binding authority from them. Finally, there are also usages or patterns of behaviour which are respected out of mere habit, convenience or ceremonial symbolism. They are not based on or aimed at supporting any particular constitutional reason, and, therefore, there is no sanction in the event that a usage is not respected, beyond the general opprobrium.
2.2.3. Principles underlying presidentialist and semi-presidential system in the Fifth French Republic
Referendum on the election of the head of state was not just a conventional revision of the Constitution, but also a legitimization of the ongoing presidentialist practice. That practice, triggered by the Algerian crisis and reflected in the broad interpretation of the presidential powers, was the sign of the new constitutional system. In that sense and paradoxically, at first glance, a non-revision – failure of the referendum – would have meant revision of the arising presidentialist system.
One of the most salient characteristics of the Fifth Republic’s presidentialism is the responsibility of the Prime Minister before the President of the Republic, contrary to the explicit wording of the constitutional text, establishing in that respect parliamentary system of government. Namely, it is a fundamental convention, supported by a number of precedents, which obliges Prime Minister to withdraw once the President requests it from him.
Consequently, throughout the whole Fifth Republic, there was only one spontaneous resignation of the Prime minister – Jacques Chirac’s in August 1976, after an irreversible break up with the President Giscard d’Estaign – all others were provoked by the head of state.Six resignations took place, although there was no constitutional norm requiring them, out of a pure and unambiguous respect for an unwritten rule of presidential supremacy.But what was the underlying political principle, supporting it?
What explains such a conventional remodelling of the Constitution is a need for a more stable executive power. To be understood, presidentialist evolution of the Fifth Republic has to be read in the light of the governmental instability of the Third and Forth Republic. The corollary of the 1962 referendum was that the presidential majority should go along with the parliamentary one, i.e. that executive and legislative power should be separated and that Government should derive from the head of state and not from the Parliament.In that sense, presidentialism secures the democratic accountability of the Government.
On the other side, when there is no overlapping between the presidential and parliamentary majority, fundamental convention operates differently. It imposes cohabitation between the President and Prime Minister and preserves, in that way, its democratic essence. In those moments, it becomes clear, more than ever, that although it occupies a central place in the system, presidential election offers to the winner nothing more than a possibility, whereas it is legislative election which accords the real power. The change of the roles between the head of state and head of Government produces instant effect, with the most literal interpretation of the constitutional text, where every ‘i’ has to be dotted and every ‘t’ crossed. The President confines himself to the power to veto (faculté d’empêcher) and Prime Minister recovers his constitutional power to decide (faculté de statuer), as Montesquieu would say. All this constitutional transformation becomes possible due to the change of the political context, in which the President’s political party becomes minority in the Parliament and head of state has no other choice but to appoint the new Prime Minister from the majority over which he has no control.
2.3. OBJECTIVE ELEMENT – SUPPORTING PRACTICE
A series of precedents supporting the opinio iuris is an objective element of a conventional rule. The two factors – consensus and practice – were traditionally analysed together and considered to be interdependent and complementary. However, with time, it has become clear that the practice does not create the conventional rule, as much as it enables its manifestation, what differentiates it from custom.
2.3.1. Declining importance of practice
What is usually understood by practice, as analogous to a custom, is a series of time-honoured precedents, repeating regularly and continuously. One of the ways the conventions are established, according to Marshall, is “a series of precedents that are agreed to have given rise to a binding rule of behaviour”.
However, the majority of the doctrine is concordant with the view that when a course of conduct persists in over a long period of time and gradually attains obligatory force, it is common to call convention of this kind a “custom”; a convention, on the other side, may appear much more quickly, when there is an agreement among the people concerned to work in a particular way and to adopt particular rule of conduct. Following the same line of reasoning, Pierre Avril affirms that although a formation of a convention can be compared to that of a custom, a single precedent can give rise to a convention, whereas a custom comes out of a repetition. Bringing together two factors of convention making – political principal and practice – Jennings concludes that “a single precedent with a good reason may be enough to establish the rule”.
Finally, certain authors totally disregard the value of a behaviour pattern in their analyses of the conventional rule. Andrew Heard is one of them, arguing that the emphasis placed on practice tightens the reins of history on constitutional development and allows for the ambiguity and contradiction, inherent in precedent.
2.3.2. Convention and custom distinguished
The taxonomy of the distinctive features and varying factors of convention making enables its differentiation from other unwritten rules of behaviour, such as custom. Julien Laferrière points out the easiness of the confusion and the importance of the distinction between the two: custom arises out of repeating precedents leading to a legally binding rule of conduct, whereas conventions (“pratiques politiques” in Laferrière’s terminology) are the result of the exclusive application of one of the possible solutions offered by the constitution.
Similarly to a convention, custom presupposes a (quasi) uniformity of practice founded on a consenus – an opinio necessitatis. Another common characteristic is that custom, just like convention, is based upon a reasonable social necessity (ratio quae suasit consuetudinem). This inherent reasonableness, associated with an objective utility rather than a subjective logic, is a necessary element of all customs which are entitled to judicial consideration.
Nevertheless, there are notable differences between the two types of unwritten rules. Firstly, custom is an independent source of law – it is a self-contained, self-sufficient and self-justified law whenever it is, as a matter of established fact, proved to be recognized social practice. In that sense, “the primary function of judicial analysis is to examine the nature and reality of existing custom, not to invent new customs or arbitrarily to abolish those which are proved to exist in immemorial practice”. Secondly, for a custom to be recognized it must have existed from time immemorial. only reliable proof of resistance to the changing conditions of different ages”. English law, to take an example, set an arbitrary limit to “legal memory”, fixing it to A.D. 1189, the first year of the reign of Richard I.
2.3.3. Varying influence of practice in the constitutional system
of the Fifth French Republic
In the preceding chapters we have seen how the presidentialist system of government was established and developed in the Fifth French Republic. At its corner stone are two conventional rules: one by which people convalidated presidential interpretation and revision of the Constitution and the other which made Government organically dependent upon the head of state. These conventional rules led to the unity of the hierarchically structured executive power, headed by the President of the Republic.54 At the same time, the examples of the revision of the Constitution and subjection of the Prime Minister to the President of the Republic are also telling in the sense that they demonstrate the varying influence of the precedents in the establishment of the convention. Namely, some conventions develop out of a single precedent, whereas others have more precarious destiny.
The responsibility of the Prime Minister was confirmed by a number of events, but it appears that the conventional rule was already created in the first precedent which gave rise to the withdrawal of the head of Government under the insistence of the head of state. As doctrine formulated it, the single precedent with a good reason and when there is an agreement among the relevant actors, to work in a particular way, can be sufficient to establish a convention. The conditions under which Michel Debré left the office of the Prime Minister, in 1962, were all the more important since it was the first resignation in the Fifth Republic, that it was not provoked by the Parliament and that the letter of the resignation as well as that of the President of the Republic were published in the Journal Officiel.
The resignation of Jacques Chaban-Delmas in 1972, a second precedent, was even more telling of the unilateral nature of the Prime Minister’s withdrawal. It came out as a result of the Chaban-Delma’s attempt to distance himself from the President Pompidou by asking the vote of confidence from the Parliament, breaching the fundamental conventional rule according to which head of Government is derived from the head of state. The backlash was instant. Only five weeks after he received the landslide support in the Parliament (368 votes to 96) Chaban-Delmas had to resign stating in his letter addressed to the President of the Republic: “You have informed me of your intention to change the Government. Therefore, I have the honour of presenting you the resignation of the Government…”. Other resignations were just the repetitions and variations of the first two precedents, supporting the thesis that the given fundamental convention was already established in the early days of the presidentialist system.
On the other side, the status of the article 11, with regard to its application in the constitutional issues, remains unclear, in spite of numerous and various precedents. The 1962 referendum represented undoubtedly a conventional revision of the Constitution, but it remained unanswered if the article 11 could be used in the future, for the same purposes. Commentators noticed that the participation in the 1965 presidential election of the parties and candidates who initially denounced the 1962 referendum as the coup d’Etat was in itself the ratification of the de facto change. An additional confusion was created in 1969 with the negative referendum, organized in accordance with the article 11, which permitted two opposing interpretations: first, that the voters’ “non” was exclusively directed to the substances of the proposal, and second, that they also decided on the procedural aspects – application of article 11 in the constitutional issues.
Finally, the debate came to its end in 1988 after President Mitterand, once the principal critic of the 1962 and 1969 referenda, admitted that the application of the article 11 for the purposes of the constitutional revision could be considered as conventionally accepted. Nevertheless, the doctrine seems still to be split: while Avril qualifies aforementioned precedents as a mere practice, lacking general agreement to be regarded as a convention; Meny subscribes to the idea that the application of the article 11 in the constitutional issues has become a matter of convention, but suggests that the new constitutional referendum pursuant to the article 11 would definitely confirm its conventional status. Under present conditions it appears that the application of the article 11 in the constitutional matters can be classified as an infra-convention since it is an embryonic rule with a potential to acquire sufficient support to be transformed into a higher class of convention.
Convention is a non-written rule of conduct developed in the interplay of different factors. At its basis are general acquiescence and vital political principle. In that sense, conventional rule is an agreed interpretation, of the pre-existing legal norm, among the principle constitutional organs, acting conformably to the dominant political philosophy. Practice is only an expression of a conventional rule, a manifestation of its existence, not the factor of its creation. However, practice is a necessary precondition for the recognition of a convention and, under given circumstances, a single precedent may suffice for a conventional rule to be established. (In that respect, parallels can be made with the German Historical School which considered law and custom as a reflex of the Volksgeist, existing by itself, as a sociological fact.) Arising out of agreement between the major political actors, conventional rule can be easily created, but it can also easily degenerate in a mere usage, if it loses its supporters. The dynamics of the convention appearance and disappearance is determined by its interrelation with the underlying constitutional principle – the closer it embodies a vital political reason, the longer it will last.
It comes out that the conventional rule is an unavoidable link between the law and politics. It is a synthesis, a union of the two. An ensemble of conventional rules in one country makes its constitutional system, differing from the constitutional regime, made up of legal norms. As Duhamel pointed out, constitutional system can not be equated with the political life, it is a result of the interaction between the constitutional regime and political life, which varies from one country to another and even within a single country, according to the political contingencies. In that sense, French constitutional system is typical: one can distinguish a presidentialist system, characterized by the unity of the executive power, with the head of state at its apex, in situations when the presidential and parliamentary majorities overlap; and semi-presidential system, which implies a stricter application of the constitutional text and dissociation of the Government from the President of the Republic, in cases of cohabitation. Accordingly, the formal constitution is nothing more than a system of organs which determine their own powers through their mutual interplay.
- 1. A. V. Dicey, Introduction to the Study of the Law of the Constitution (Indianapolis: Liberty Fund, 1982), cxl
- 2. A. Heard, Canadian Constitutional Conventions (Toronto: Oxford University Press, 1991); Ch. Sampford, “ ‘Recognize and Declare’: An Australian Experiment in Codifying Constitutional Conventions,” (1987) 7 Oxford Journal of Legal Studies.
- 3. K. C. Wheare, Modern Constitutions (London: Oxford University Press, 1966), 122.
- 4. O. Hood Phillips, “Constitutional Conventions: Dicey’s Predecessors,” (1966) 2 The Modern Law Review.
- 5. Jennings, The Law and the Constitution, (London: University of London Press, 1944), 131.
- 6. Andrew D. Heard, “Recognizing the Variety among Constitutional Conventions,” (1989) 1 Canadian Journal of Political Science, 70.
- 7. Sir Kenneth Wheare, Modern Constitution (1951), p. 180, quoted in: G. Marshall, Constitutional Conventions – The Rules and Forms of Political Accountability (New York: Oxford University Press, 1984), 9.
- 8. J. Laferrière, « La coutume constitutionnelle – son rôle et sa valeur en France », (1944) Revue du droit public, 25-26.
- 9. P. Avril, Les conventions de la constitution, (Paris: Presses universitaires de France, 1997), 149.
10. D. Chagnollaud, J.-L. Quermonne, Le gouvernement de la France sous la V République (Fayard, 1996), 112-113.
11. G. Berlia, « Le problème de la constitutionnalité du référendum du 28 octobre 1962 », (1962) 5 Revue du droit public, 938-939.
12. P. Lampué, « Le mode d’élection du Président de la République et la procédure de l’article 11 », (1962) 5 Revue du droit public, 933.
13. J.-J. Chevallier, G. Carcassonne, O. Duhamel, La Ve République 1958-2002 – Histoire des institutions et des régimes politiques de la France (Paris: Armand Colin, 2002), 95.
14. J. Gicquel, Essai sur la pratique de la V République (Paris: Librairie Général de droit et de Jurisprudence, 1977), 39. Gicquel uses the term « custom » instead of « convention », but it is clear that in this context they are synonymous.
15. Loi référendaire (20 DC) in: L. Favoreu, L. Philip, Les grandes décisions du Conseil constitutionnel (Paris: Dalloz, 2001), 174.
16. R. Capitant, « La coutume constitutionnelle », (1979) 4 Revue du droit public, 970. Capitant uses the term « custom » instead of « convention », but it is clear that in this context they are synonymous.
17. O. Hood Phillips, P. Jackson and P. Leopold, Constitutional and Administrative Law (London: Sweet and Maxwell, 2001), 143.
18. C. K. Allen, Law in the making (Oxford: Clarendon Press, 1939), 78.