Conseil Constitutionnel
A body set up under the constitution of the French
Fifth Republic
to ensure the regularity of elections and referenda and, in certain cases, to rule on the constitutionality of laws. There is no appeal from its decisions as the intention was to confine the legislature, formerly the repository of national sovereignty, within a new more limited role. Accordingly, the
Conseil
can rule on the constitutionality of parliamentary laws but executive actions are reserved for the
Conseil d'état
. Appointed for nine years and in equal proportions by the President of the Republic and the two parliamentary presidents, the
Conseil Constitutionnel
acted at first to uphold executive supremacy. After 1974 President Giscard d'Estaing provided for more generous access by deputies and senators to the
Conseil
. This right was increasingly exercised through the 1980s by the parliamentary opposition, while successive administrations, Socialist and Conservative, have complained of ‘government by judges’. In 1985
Conseil Constitutionnel
ruled that the constitution was superior to parliamentary legislation. The government now finds itself subject to judicial constraints from an unexpected quarter, while parliament and opposition, much circumscribed by the constitution, have been quick to exploit their new privileges.
IC
Conseil d'état
The
Conseil d'état
is the highest administrative court in France with final jurisdiction over cases involving misuse of administrative power. Executive action is subject to its review, as is the conduct of the bureaucracy, and it may make recommendations on administrative reform. It must also be consulted in advance concerning certain types of legislation initiated by government for submission to parliament, while the government may seek advisory opinions. Individual citizens have access to the
Conseil d'état
, ensuring a degree of personal accountability for administrative acts and providing a check on the use or abuse of discretionary powers. Acts may be annulled where the administration has exceeded its powers or has not complied with formal procedures. Under the
Fifth Republic
the
Conseil d'état
has consciously acted to extend its judicial control to keep pace with the expansion of executive power: a reversal of its role under previous republics where it was more concerned to strengthen a weak executive. The
Conseil d'état
is among the leading
grands corps
, with its members serving the state at all levels and in the highest offices.
IC
consensus
Max
Weber
defined consensus as existing when expectations about the behaviour of others are realistic because the others will usually accept these expectations as valid for themselves, even without an explicit agreement. For
Marxists
, consensus is a highly ideological concept used to perpetuate class rule by attempting to disguise the extent of conflict within society. The idea of consensus became associated with the debate about ‘the end of ideology’, and the supposed replacement of conflict about basic values and goals by harmony about the ends to be attained. In analyses of postwar politics in Britain and other Western countries, consensus came to be used to refer to cross-party agreement about procedures and constitutional conventions, but also about broad policy objectives such as the maintenance of a national health service and a welfare state, and the use of neo-Keynesian techniques of demand management to ensure full employment. Kavanagh and Morris define consensus in the sense that it was used in postwar British politics as ‘a set of parameters which bounded the set of policy options regarded by senior politicians and civil servants as administratively practicable, economically affordable and politically acceptable’. Conflict between the parties was then confined to a few symbolic but highly charged issues such as
nationalization
. Such broad agreement about objectives tended to make much policy-making a technical argument about incremental adjustments to existing policies, enhancing the opportunities open to
interest groups
to exert influence within a generally agreed set of goals. Thus, postwar agricultural policy was based on the bipartisan assumption, embodied in the 1947 Agriculture Act, that farmers should be assisted to maximize production, the ways in which this objective was to be achieved being negotiated between government and the National Farmers' Union in an annual price review. Postwar consensus politics in Western polities reached its most highly developed form in the long-lasting postwar coalition of the two main parties in Austria (1945–66), and the shorter but politically significant ‘Grand Coalition’ in West Germany (1966–9). The grand coalition in Germany stimulated the emergence of an extraparliamentary opposition on the left and right made up of citizens who felt excluded from the dominant centrist consensus. In Britain, increasing economic difficulties in the 1970s called into question consensus politics based on funding increased public expenditure out of growth. Under Margaret Thatcher's leadership, the Conservative Party moved away from consensus politics to a conviction politics based on strongly held beliefs seen as distinct from those of the Labour Party, while the Labour Party moved sharply to the left in the early 1980s. The 1990s saw a partial return to more consensual politics. Even during the Thatcher period, consensus about political procedures was largely maintained, and some measure of agreement about decision-making procedures is necessary if a polity is to survive as a working entity.
WG
consent
Acquiescence or agreement. More elaborately, the attachment of an agent's will to a proposal, action, or outcome, such that the agent accepts (some share of the) responsibility for the consequences and/or legitimizes an action or state of affairs which, in the absence of consent, would lack legitimacy or legality. For example, the difference between rape and ordinary sexual relations depends upon consent. Legal systems do not always allow consent to remove the illegality of an act, in the sense that the consent of the ‘victim’ will not always be treated as a defence. This may be because the law exhibits
paternalism
, or because it is intending to enforce a moral code which sees particular acts as wrong irrespective of their consensual nature. The presence of consent has been an important test of political legitimacy in many theories, it being argued that the state or government would have no right to direct a person's behaviour unless that person's consent to be governed had been given. Consent conceptually embraces a wide range of attitudes, from grudging acquiescence to enthusiastic agreement. Arguments about the legitimizing force of consent need to accommodate this fact. When consent is given explicitly and expressly, its legitimizing force is at least plausible. Difficulties arise, however, when the presence or absence of consent has to be inferred from a person's actions (or inactions), because that explicitness is absent. Is anything short of active dissent to be construed as tacit consent?
Locke
recognized this problem, although the answer he provided to it has not been regarded as satisfactory. He distinguished between express consent and tacit consent. A person gave tacit consent by behaving (or failing to behave) in particular ways. Since the giving of consent has been taken to have these important consequences for responsibility and legitimacy, attention has naturally focused on the circumstances in which consent is given: for example, are those circumstances free from coercion or improper influence? Does the agent have a genuine choice? Is the consent given by a person with adequate knowledge of what his or her decision involves? This last question has produced the notion of informed consent: that is, consent given by a person who has the information required to give meaning to the attachment of his or her will to the proposal, action, or outcome. Clearly, a person with incomplete or inadequate knowledge might consent enthusiastically to a proposal that would be rejected if that person had a fuller understanding of what was involved. Because of the connection between consent and the conferral of legitimacy, both the state of mind and the maturity of the agent have to be considered. For example, contracts entered into under undue stress might be considered voidable; children are debarred from consenting to many proposals because they are considered to lack the necessary decision-making competence. Many attempts have been made to refine our understanding of consent, leading to further distinctions between actual and hypothetical consent, between prospective and retrospective consent, and between strong and weak consent.
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