Sovereignty in the Belgian Constitution revisited: Introduction

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A recent volume makes the case for a revision of the standing interpretation of sovereignty in the Belgian Constitution. The book is the result of a four-years’ interdisciplinary collaboration between philosophers, lawyers, historians and political scientists to establish a historically and intellectually sound reinterpretation of sovereignty, and to formulate scenarios for political renewal in Belgium.  Today’s post provides an introduction to the book’s subject matter and its central arguments. In succeeding posts, contributors will elaborate on some of the main findings.

An ill-defined concept

Sovereignty remains an ill-defined concept in the Belgian Constitution. Its Article 33 states: ‘All the powers emanate from the nation. They are exercised in the manner prescribed by the Constitution’. But the article fails to define who or what the nation is, leaving an essential constitutional point open to interpretation. Strangely, however, the exact meaning of sovereignty has hardly led to debate among Belgian constitutionalists.

One particular interpretation dominates both textbooks and the jurisprudence of the Council of State: national sovereignty, as opposed to popular sovereignty.  Whereas the former emphasizes the expression of the People’s will through its elected representatives, the latter considers that the representatives themselves ‘create’ the national will on the part of an abstract, timeless Nation. One result of this interpretation is that referendums and other forms of direct democracy are not considered to be allowed under the Belgian Constitution. Parliament alone is competent to represent the will of the timeless Belgian nation, which does not coincide with the concrete Belgian people at any given moment in time.

Raymond Carré de Malberg

Yet for both historical and intellectual reasons, the national sovereignty interpretation of the Belgian Constitution is not satisfactory. National sovereignty is a particular concept in the history of political philosophy, that originated within French doctrinaire liberalism in the second quarter of the nineteenth century. Its most influential formulation is found in the work of French constitutionalist Raymond Carré de Malberg (1861-1935).

Belgian constitutionalists have enthusiastically applied Malberg’s insights to the Belgian Constitution, projecting his views as far back as 1830. This reading turns out to be anachronistic, however: a systematic analysis of public law textbooks shows that the national sovereignty interpretation dates from the end of the nineteenth century and only became dominant in Belgium around 1950.

The People vs. the Nation

Contrary to many neighbouring countries, Belgium does not possess a strong constitutional culture, nor an established tradition of constitutional history writing. Although the debates of the founding fathers have not been ignored altogether, a systematic analysis from the point of view of intellectual history is certainly lacking. Reading the actual constituent debates proves that a conceptual differentiation between national and popular sovereignty was not present in the minds of the members of the Belgian National Congress.

The drafters of the Belgian Constitution certainly were deeply committed to a representational conception of political power, in which direct intervention by the people was ruled out. Their conception of politics was moreover highly elitist, with census suffrage enfranchising no more than 1% of the male population. At the same time however, the National Congress considered itself to act on behalf of the (concrete) Belgian people, rather than an abstract nation.

Moreover, the popular origins of the Belgian Revolution were recognised by the insistence on a Lockean right of resistance on the part of the people. In fact, the founding fathers have provided a series of participatory channels through which public opinion was given a role in politics. The freedom of the press, the right of petition and trial by jury all provided (literate) people with ways to participate in the political debate and, above all, to carefully monitor the ruling class. Indeed, the maintenance of the constitutional principles was entrusted to the population at large.

Republican liberalism?

This insistence on public opinion and on popular control of politicians has a distinctive republican ring to it. That may come as a surprise, given the strongly liberal reputation of the Belgian Constitution. Yet however liberal the mindset of large parts of the Belgian and French elites in 1830, republican arguments did continue to hold sway. They explicitly did so in the work of Benjamin Constant, who was the Belgian founding fathers’ strongest source of intellectual inspiration (alongside Montesquieu). In line with his liberal horror of power concentration, in the form of either monarchical or popular despotism, Constant was in favour of distributing sovereignty in such a way that no one person or instance was in a position to claim ultimate power.

The division of power over the three branches of government in the Belgian Constitution, and the elaborate system of checks and balances it contains, certainly mirror this ideal. At the same time, Constant advocated the involvement of the population at large in politics, in order to safeguard political liberty and personal freedom. The inclusion of the aforementioned ‘channels of participation’ in the Belgian Constitution should be viewed in this light.

Civic participation and political renewal

Given these insights, the time seems ripe for a revision of what the authors of this volume like to call the ‘national sovereignty myth’. According to them, both the doctrine and the jurisprudence of the Council of State need to let go of the idea of national sovereignty. This means, among other things, that the long-standing ban on referendums at the national level is liable to be abolished.

Many observers share a sense that a contemporary ‘crisis of democracy’ is undermining popular support for the model of liberal democracy in the West. Political scientists and activists have formulated all kinds of methods to bridge the infamous gap between elected politicians and the people they represent. Among the initiatives for political renewal are forms of direct, participatory and/or deliberative democracy, some of which have been successfully applied in European countries. In Belgium too, important initiatives for political renewal have been taken at the local and regional levels. Letting go of national sovereignty would allow Belgium to bring the national level up to date with the times, while staying true to the spirit of the founding fathers.

Brecht Deseure is a postdoctoral research fellow at King’s College London.

Brecht Deseure, Raf Geenens and Stefan Sottiaux (eds.), The People versus the Nation. Sovereignty, Civic Participation, and Constitutional Law in Belgium (Abingdon & New York: Routledge, 2021).

The interdisciplinary project was conducted at the Leuven Centre for Public Law and the Institute for Philosophy.

Brecht DESEURE, "Sovereignty in the Belgian Constitution revisited: Introduction", Leuven Blog for Public Law, 3 December 2021, (geraadpleegd op 17 January 2022)

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