SEPARATION OF POWERS AND JUDICIARY 609 



What I am here to investigate is the reason for this difference from 

 the French conception of the separation. The reasons are invariably 

 the same. Your historical traditions are on this point totally at vari- 

 ance with ours. The English judicial regime did not know the strug- 

 gle between monarchy and the courts of law. Political struggle never 

 took place in the judicial domain, while the latter unfortunately 

 was the only ground which remained for it in France. In England 

 political struggle existed only where it belonged exclusively, that is, 

 in political bodies. It is due to this fact that the principle of the 

 " rule of law," with absolutely general application, could, without 

 difficulty, be maintained both in England and in your country, even 

 when it had to be exercised against the administration. 



If, however, the two systems were to be subjected to a critical test, 

 the French system, such as it has grown out of many and happy 

 improvements, could perhaps bear a favorable comparison with the 

 Anglo-American system. 



Administrative judicial bodies, on the one hand, have come to be 

 real courts, subject to fixed rules and to a regular procedure, and 

 sitting with as much independence as judicial courts have. On the 

 other hand, these judicial bodies, which include past or future ad- 

 ministrative officials, are, on this account, composed of specialists 

 quite familiar With administrative matters; this is not an undesirable 

 condition, since it can only redound to the benefit of the accused. 

 Lastly, owing to their intimate connection with the administration, 

 such judicial bodies are able to go further than any court could into 

 the details of administrative action. I cannot unfortunately submit 

 any evidence of the above assertions, for it would demand from me 

 more time than I have at my disposal to lay before you the famous 

 theory of '" appeal on the ground of excessive use of power," an 

 admirable creation of our highest administrative judicial body, the 

 state council, which presents a more effectual protection for individ- 

 ual rights than can be afforded by any other system. 



It will suffice that I have pointed out the existing contrast between 

 your separation and ours in regard to the relations of the adminis- 

 tration with the judiciary, and that I have indicated the causes for 

 such a contrast. 



(2) Relations between the Judiciary and the Legislative. Here 

 again the same causes have produced the same effects. The French 

 separation of powers is as different from the American separation 

 in regard to the relations of the judiciary with the legislative as in 

 regard to those of the judiciary with the executive. 



Proof of this I shall seek in the consideration of the well-known 

 question of unconstitutionality of laws, which, from a legal stand- 

 point, is brought under the same conditions in France as in the 

 United States, the two countries living under written constitutions. 



