Quelle importance empirique pour le paradoxe doctrinal ? Une enquête sur la jurisprudence du Conseil constitutionnel français

Legal theory has often compared the functioning of collective courts with that of a single-judge court. With the doctrinal paradox, Kornhauser et Sager [1993] have pointed an unexpected difficulty of the workings of the former: in some cases of collective deliberation, two very natural methods of collective decision, sometimes called issue-based voting and outcome-based voting, here labelled as the reason-based and the conclusion-based method, clash with each other. American commentators have investigated the record of the US Supreme Court with a view of finding whether this paradox was a mere theoretical possibility or arose in actual fact; this latter conclusion has prevailed. The present article confirms it after reviewing the record of the French Constitutional Council (Conseil constitutionnel), which shares some features of a supreme court. Besides making this empirical contribution, the paper takes up the comparison of the two methods and suggests a conciliation of the two methods that is partly based on observing how the Council operates in practice. Classification JEL: D71, K40.