Legislation by Ordinance. A specific method of assigning or devolving power[La législation par ordonnances. Un mode d’attribution ou de dévolution spécifique du pouvoir]

Article 38 of the French Constitution allows the government to legislate in place of Parliament with its enabling legislation, "fictitiously" passing itself off as Parliament. This is all the more useful given that successive governments in recent months have also almost systematically used another procedure, article 49-3, to consolidate their political existence. These two constitutional provisions alone bear witness to the complex relationship between Parliament and government that the 1958 Constitutional Treaty established to streamlining the parliamentary system of the Fifth Republic. However, recent "governmental instabilities" are challenging the original status quo, so that power-sharing between Parliament and Government is now becoming a major issue. This contribution contextualizes the use of this method of legislation by Ordinance, drawing on the historiographical resources of the First World War, complemented by those of the Roman Republic, in order to make an in-depth study of this mechanism, using a reversal decision by the Constitutional Council in 2020 as a starting point for understanding the controversies it raises.