Does doctrinal paradox matter? an empirical inquiry on the french constitutional court[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, some times 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.