Interpretive and Legislative Norms in France and in the USA

Abstract

The distinction between interpretive and substantive (or legislative) norms is a common feature of French and American administrative law. In both legal systems, the distinction, apparently simple, has proved extremely difficult to handle. The paper aims at presenting and illustrating the basic functions of the distinction in the two countries, comparing the efforts made to define the contents of the distinction by courts and legal scholarship. After reaching the conclusion that neither French nor American administrative have come up with a reasonably satisfying criteria of distinction, the paper makes the case that, if the distinction is still in use, it must be because it serves fundamental purposes of each of these legal systems. It argues that the underlying and central function of the distinction is not the same in the two legal systems. In France, the central function of the distinction is a non-delegation issue. In the USA, its main role is to define and/or limit the scope of the notice and comment procedure, one of the most particular features of American administrative law.