Les travaux préparatoires from a French Perspective: Looking for the Spirit of the Law
Volume 78 (2014) / Issue 2, pp. 346-360 (15)
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The French Constitutional Supreme Court attributes a constitutional value to the objective of making the law more accessible and more understandable, in order to facilitate its acceptance by the country's citizens. The European Court of Human Rights has also ruled that the law must be adequately accessible and that a norm cannot be regarded as »law« unless it is formulated with sufficient precision to enable citizens to regulate their conduct. Yet, it is admitted that when the letter of the law is obscure, ambiguous, or incomplete, denying the judge the power to search for the ratio legis may be considered to be a denial of justice. But where can we find the ratio legis, if not in the travaux préparatoires? The identification of a theory of travaux préparatoires requires, first of all, a definition of that term. This, in turn, requires an overview of the legislative process, from the informal ministerial drafting phase to the formal phase involving the debates before the two chambers of Parliament. The true spirit of the law, i.e.the will of Parliament, can only, of course, be established by documents that are accessible to the public. The principle of secrecy overshadowing parts of the legislative process presents a considerable obstacle. The merits of interpreting a statute by reference to its travaux préparatoires are disputed. A comprehensive investigation into the legislative history of a statute, including its historical context, takes more time than busy practitioners often have. None the less, the travaux préparatoires have established themselves as an important interpretative tool when courts have to determine the conformity of a national statute with an international Treaty, or with the Constitution.