The false opposition in Belgian public law between national and popular sovereignty

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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. In this post Christophe Maes considers the false opposition between the concepts of national and constitutional sovereignty in Belgian constitutional interpretation. The far-reaching consequences of this commonly made division appear to rest on unstable foundations.

The Belgian Constitution states that “All powers emanate from the Nation” (Art. 33 – former Art. 25). For decades, public lawyers and Belgian courts have read in this clause a specific conception of ‘national sovereignty’, meaning that sovereignty lies with the unified and indivisible nation. The nation referred to is an abstract entity that includes the Belgian citizens of today, but also those of past and future generations. Since this transgenerational nation cannot directly speak for itself, it is in need of representation.

This conception of representation is opposed to the notion of popular sovereignty, where sovereignty belongs to the actually existing people. National and popular sovereignty are thus conceived as two mutually exclusive principles, of which the former supposedly dominated at the time of the constitution’s creation in 1831. This generally accepted interpretation has far-reaching implications, since it attributes the legal decision-making power exclusively to the political representatives, and it thus rules out instruments of direct democracy. However, this conception has recently become the object of academic discussion.

Nation vs. people

Through a systematic analysis of the constituent and public debates at the time the Belgian Constitution was drafted, Brecht Deseure and I found that a conceptual distinction between national sovereignty and popular sovereignty was not present in the constituent National Congress. Although the term sovereignty was rarely explicitly discussed by the congressmen, there can be no doubt that their affirmation of national sovereignty was in the first place meant as a negation of the monarchical principle. National sovereignty consecrated the ultimate right of the people to rise against, and legitimately depose, a despotic king. In other words, national sovereignty was meant to legitimise state power from below.

Regardless of this absence of a distinction between national sovereignty and popular sovereignty, rivalling conceptions of ‘nation’ and ‘people’ can nevertheless be identified. These interpretations were often aligned with the political fractions within Congress. Progressive (‘democratic’) Catholics and republicans capitalised on an abundant use of the term ‘people’ to emphasize the democratic-republican nature of sovereignty. Some of them even came to question the wording ‘emanate’ in the draft constitution, as this potentially implied the permanent renouncement of the people’s power to its representatives.

Conservative Catholics, on the other hand, continuously associated ‘people’ with mob-rule and French revolutionary Terror and accordingly, militantly warned against too ‘popular’ features of the future regime. The great majority in the constituent assembly, however, did not distinguish between ‘people’ and ‘nation’ at all. It considered that the Constitution was based on the idea that the Belgian people (or nation) was the only source of sovereignty. Yet, the acknowledgement of the Belgian nation as the source of all powers certainly did not imply support for direct democracy or universal suffrage. On the contrary: almost all congressmen acknowledged that representation was necessary in public governance and that suffrage needed to be restricted to ‘competent’ citizens.

Divisible versus indivisible sovereignty

The dividing line in the National Congress was therefore not between national sovereignty and popular sovereignty, nor between representation and direct democracy. Rather, controversy raged over the question of divisible versus indivisible sovereignty. Republicans favored the latter. They fiercely advocated a unique legislative assembly whose members would be elected on the basis of universal suffrage (or a very low census at most). Only under these conditions could the assembly’s choices reflect the unity of the popular will. Conservative Catholics, too, believed in undivided and absolute sovereignty. However, they perceived the republican position to be flawed with a logical error: the ultimate and indivisible power could not be assigned to the people, because this would fracture sovereignty and divide it over a multitude of individuals. Instead, Conservative Catholics maintained that only the King could hold and retain sovereignty.

The majority of moderate Catholics and liberals, for their part, believed that preserving the Belgian people’s sovereignty could only be achieved by dividing state power. The people’s sovereign power needed to be entrusted to different representative institutions which counterbalanced each other. At the center of the constitutional edifice stood Parliament. Although franchise was restricted to the country’s social elite, Parliament was considered to concentrate the individual wills of the Belgian people in its midst. In that respect, the assembly was recognized as the prime representative of the people’s will.

Importantly, in order to be truly ‘national’, the will expressed by Parliament needed to reflect the majority view and the plurality of interests present in contemporary society. The institutional division of Parliament in two legislative Chambers with a separate representation for the aristocracy and the bourgeoisie served to accomplish this goal. On the one hand, bicameralism would allow the chambers to control each other, and thus to guarantee the adequate representation of the people’s interests. On the other hand, it would also bring stability by balancing the social interests and reflecting the sociological reality of the Belgian society.

Representative actors and the national will

Moreover, Parliament was subjected to evaluation by representative actors who contributed to the expression of the national will, although they did not dictate the political decisions. First of these actors was the King. Should the chambers fail to respond to popular grievances, the King could protect the national interest by pronouncing his (absolute) veto against legislative proposals. When he believed that it was necessary to consult the nation (e.g. in case of a persistent conflict between the legislative chambers), he could disband the chambers, prompting new parliamentary elections. Furthermore, the public sphere was guarded by the press. Journals were there to inform the public, to critically evaluate government and to denounce judicial and legal abuses. The right of petition, the right to assemble and the right to associate encapsulated these functions. Trial by jury for press crimes and political crimes was moreover instated as a barrier against oppressive governmental action.

Finally, when all of the above failed, the nation could ultimately resist a despotic government and take matters directly into its own hands. With this liberal conception of state power, the Belgian founding fathers sought to make the representative system ‘genuinely’ national, acknowledging that sovereignty in the Belgian state system was ultimately popular. Contrary to the established national sovereignty interpretation defended by Belgian legal doctrine, this reading of sovereignty allows for considerably more popular participation in politics. Importantly, viewed in this light, instruments of participatory democracy (including referendums) are not at all irreconcilable with the letter or the spirit of the Belgian Constitution.

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.

Christophe MAES, "The false opposition in Belgian public law between national and popular sovereignty", Leuven Blog for Public Law, 14 January 2022, (geraadpleegd op 17 January 2022)

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