Non-Statutory Executive Powers in France: A Comparison between Two Regimes

Throughout history, leaders of democratic states have drawn on traditions of unilateral making of measures in the foreign and domestic fields, in the absence of a clear statutory authorization to do so. None of these traditions settles comfortably with modern constitutionalism. My comparative project dedicated to this common governance feature addresses the following questions. How have systems approached the question of unilateral executive action? Can similarities be found, or has this issue, so strongly linked with domestic politics and power structures, developed independently in each system? Finally, how can patterns of convergence or divergence be explained, at least tentatively? To address these questions, I dedicate the first part of this paper to a short expose of the nature of non-statutory powers and the constitutional problem embodied in their invocation. I then offer a comparative analysis of two prototypical, contradicting structural solutions, those of the Fourth and Fifth French Republics, which stand at the two poles of a continuum between prohibition and permission. Despite the differences, the emerging frameworks share a systemic recognition of some forms of unilateral non-statutory powers under similar constraints, reflecting a shared vision of the executive as formally submissive to the legislature but simultaneously enjoying political dominance and some legal dominance, a vision that has little to do with formal structure.