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Réflexions sur le concept de fondamentalité en droit public français

Abstract : The French legal system is very protective of freedom and it disposes of manyinstruments of protection in this area. Among these, the concept of human rights has emergedonly recently in France and there is no consensus about its definition. In the tradition ofhuman rights and civil liberties, fundamental rights appear at first glance as standards for theprotection of legal freedom and with a higher legal value. The aim of our study is tounderstand what is the meaning of this concept in French public law. To achieve this goal, wehave made several epistemological choices. Our work’s framework is deliberately restrictedto public law. It led us to focus on the study of jurisprudence of the Constitutional Counciland the Council of State. We excluded from our approach the interpretation of fundamentalrights by the Supreme Court (Cour de cassation) and by Europeans Courts. Given the lack ofnormative definition of the fundamentality, analysis of case law is the only way to getanswers about this concept. We also chose to determine if case law about fundamentalitycould be a strategic tool for the judge and not a political instrument. The complexity of thisconcept lies in the fact that the fundamentality is not uniform. It comes on a plurality ofnorms, rights, freedoms, principles, guarantees and rules which makes difficult theunderstanding of this concept. Therefore, we sought to understand the points of convergencebetween these different occurrences because all these occurences can be qualified by the word"fundamental". Our ambition is to study the reality of law, to determine what is the legalreality of the concept of fundamentality in French public law.
Keywords : Fundamental rights
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Submitted on : Tuesday, September 16, 2014 - 8:42:16 AM
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Céline Coudert. Réflexions sur le concept de fondamentalité en droit public français. Droit. Université d'Auvergne - Clermont-Ferrand I, 2011. Français. ⟨NNT : 2011CLF10360⟩. ⟨tel-01064280⟩



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