ABSTRACT
In France, by fulfilling its role as a ‘negative legislator,’ the Constitutional Council is sometimes called upon to exercise a normative function that competes with that of the legislator. If its role as guardian of the Constitution is generally accepted by the public authorities and, increasingly, by public opinion, it would be wrong to assert that its normative function is also accepted. In this paper, we critically examine the Council’s influence on the legislator’s work. How does the Constitutional Council participate in the drafting of the bill? Very often, it no longer acts only as a ‘negative legislator,’ characterized by the diptych ‘annulment/rejection,’ but as a ‘positive legislator.’ Indeed, on its own initiative, the Constitutional Council has developed methods to escape the abruptness of this diptych. It is concerned to ‘save’ the law from the annulment. However, very often these methods lead it to the limit of rewriting the law. The study of some decisions shows how the Council rewrites the law in defiance of the will of the legislator. In the end, it amounts to questioning its political legitimacy to do so.
