Commanding Legality

Abstract

AbstractThe emergence of constitutional review in France has attracted substantial attention from scholars of public law. Yet little has been written about the political implications of the expansion of rights-based review on the part of France’s highest administrative jurisdiction, the Conseil d’Etat. The argument is made in this article that repeat litigation by French lawyers defending the cause of immigrants is an important site for observing the symbolic power of legal forms. The analysis focuses on cases challenging immigration-related administrative regulations and shows how the process of repeatedly adjudicating these issues has focused attention away from litigants and their claims at the same time that it has reinforced the centrality of the Conseil d’Etat and its formalist jurisprudence in administrative governance. This detailed examination of the practical operation of France’s highest administrative jurisdiction leads to the surprising conclusion that this distinctly nonadversarial form of adjudication has contributed over the long term to institutionalizing a juridification of immigration-related administrative policy making.