Sovereignty, Civic Participation, and Constitutional Law

The People versus the Nation in Belgium

Brecht Deseure, Raf Geenens, Stefan Sottiaux, Brecht Deseure, Raf Geenens, Stefan Sottiaux

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000375039
• Edition: 1
• Topic: History
• Subtopic: European History
• Index: History

This book brings recent insights about sovereignty and citizen participation in the Belgian Constitution to scholars in the fields of law, philosophy, history, and politics.

Throughout the Western world, there are increasing calls for greater citizen participation. Referendums, citizen councils, and other forms of direct democracy are considered necessary antidotes to a growing hostility towards traditional party politics. This book focuses on the Belgian debate, where the introduction of participatory politics has stalled because of an ambiguity in the Constitution. Scholars and judges generally claim that the Belgian Constitution gives ultimate power to the nation, which can only speak through representation in parliament. In light of this, direct democracy would be an unconstitutional power grab by the current generation of citizens. This book critically investigates this received interpretation of the Constitution and, by reaching back to the debates among Belgium's 1831 founding fathers, concludes that it is untenable. The spirit, if not the text, of the Belgian Constitution allows for more popular participation than present-day jurisprudence admits.

This book is the first to make recent debates in this field accessible to international scholars. It provides a rare source of information on Belgium's 1831 Constitution, which was in its time seen as modern constitutionalism's greatest triumph and which became a model for countless other constitutions. Yet the questions it asks reverberate far beyond Belgium. Combining new insights from law, philosophy, history, and politics, this book is a showcase for continental constitutional theory. It will be a valuable resource for academics and researchers in constitutional law, political and legal philosophy, and legal history.

Chapters 3, 4, 11, and 15of this bookare freely available as a downloadable Open Access PDF under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license available at https://www.taylorfrancis.com/books/sovereignty-civic-participation-constitutional-law-brecht-deseure-raf-geenens-stefan-sottiaux/e/10.4324/9781003039525

1 A simple sentence

Towards a new interpretation of sovereignty in the Belgian Constitution

Raf Geenens, Brecht Deseure, and Stefan Sottiaux

Writing an entire book about a single sentence might sound like the kind of pedantic exercise that only career academics can get excited about. However, the purpose of this book is to show that one short sentence can make a world of difference. This book’s central object is a seven-word statement in Belgium’s Constitution. Translated from Dutch, French, or German (Belgium’s official languages) into English, its length goes down to just six words and it reads as follows: “All powers emanate from the Nation”. The original formulation, written in French in the fall of 1830, goes like this: “Tous les pouvoirs émanent de la Nation”.¹ This sentence is part of article 25 (now article 33)² of Belgium’s written Constitution, a Constitution that has the merit of remaining in force, with many of its essentials untouched, for almost 200 years now. It was officially proclaimed on 7 February 1831, and, perceived by contemporaries as unusually liberal, it became a model for countless other constitutions in the course of the nineteenth century. The historian Horst Dippel notes that the Belgian Constitution was, in its time, seen as modern constitutionalism’s “greatest triumph” (Dippel, 2005, p. 165).

Not much is left of this reputation today. Hardly any international constitutional theorist is knowledgeable about Belgium’s Constitution and in studies of the period the Belgian Constitution is sometimes simply left out. One purpose of this book is certainly to rekindle interest in Belgium’s Constitution and to make available recent insights and developments (which are often only published in Dutch or French) to international audiences. Yet, we will do so by focusing on this one short sentence about the source of all powers. There are good reasons for this narrow focus. This sentence is, in a way, the cornerstone of the Belgian Constitution because it points out the purported origin of all the constitutional powers and institutions. As such, this statement is indicative of the way Belgium’s founding fathers thought about the legitimacy of their exercise and about the legitimacy of the state they were establishing. This is important, as the Belgian Constitution was written at a time when European countries were going through a complex and often painful transition from monarchical to parliamentary governments. In the reports of the constituent assembly (the ‘National Congress’), where Belgium’s founding fathers were drafting and discussing the new Constitution between November 1830 and February 1831, one can witness their intellectual struggle as they sought to create a monarchy in which the monarch would not be sovereign.³ This puzzle of constitutional engineering was not easy to solve, but they did eventually solve it in an elegant manner. A crucial element in their solution was article 25: “All powers emanate from the Nation”.

This sentence is all the more important because of its role in recent debates about citizen participation. In Belgium, as elsewhere, there are increasing calls for greater citizen involvement in politics. Referendums, citizen councils, and other forms of participation are considered necessary antidotes to traditional representative institutions, which are said to be going through a crisis of legitimacy.⁴ In Belgium, blame is typically placed on political parties, whose power is seen as excessive and in need of being checked (cf. Dewachter, 2001; 2014). But it is not obvious where such checks can come from. As all political institutions are populated by professional politicians, they always tend to come under party control.⁵ This is what makes citizen participation so attractive in Belgium: it promises to be a counterweight against the dominance of parties and professional politicians. However, all attempts to introduce forms of direct democracy, especially referendums, have been blocked by the Council of State and the Constitutional Court, precisely through reference to article 25 of the Constitution. It sounds, of course, paradoxical that the very article that was meant to sanction the authority of the Belgian people is now used to block the participation of citizens in government. The main reason for this volte-face is the gradual emergence, from the late 1800s onwards, of a peculiar interpretation of article 25. The statement that “All powers emanate from the Nation” came to be construed as an expression of the principle of ‘national sovereignty’, a principle that purportedly excludes all forms of citizen participation. This idiosyncratic understanding of sovereignty continues to dominate legal and political thinking in Belgium, leaving little room for democratic innovation.

The core purpose of this book is to put into question this dominant understanding of article 25. Several chapters in the book will demonstrate that the ‘national sovereignty’ interpretation of article 25 is flatly anachronistic, as the very idea of ‘national sovereignty’ played no role whatsoever in the thinking of the Belgian drafters in 1830–1831. Consequently, we will seek to construct a more appropriate interpretation of the statement that “All powers emanate from the Nation” and we will explore to what extent this corrected understanding of article 25 can open the door to greater citizen involvement in Belgian politics.

It should be noted that this book is the outcome of an interdisciplinary research project that was conducted at KU Leuven from 2015 to 2019. The goal of this project was precisely to investigate the historical meaning of article 25 and to plot the practical consequences of a corrected interpretation of the constitutional text. Most chapters in this book are written by philosophers, lawyers, and historians at KU Leuven who were involved in this research project; just three chapters were solicited from outside authors. Although the chapters are drawn from a relatively small pool, it does not follow that all authors share the same position. There have been various conflicts of interpretation throughout our research project, and in this book we have not tried to gloss them over. Nor is this book meant to be the final word on the topic of sovereignty in the Belgian Constitution. In our research, we have been humbled by the number of sources, earlier interpretations, and cross-linkages with similar debates in other countries. While remaining open to the possibility that other, more refined interpretations of article 25 will appear in the future, we are nevertheless convinced that this book presents the most accurate and complete analysis of the Belgian concept of sovereignty to date. As the different chapters in this book show, the topic of sovereignty opens onto many other discussions, for instance, about representation, constitutional change, and national identity. It is therefore our keenest hope that this book will encourage further and more extensive research, not just on sovereignty, but on the rich heritage of Belgium’s Constitution in its entirety.

In this first chapter, we will limit ourselves to the following. In the next section, we provide a brief overview of the dominant interpretation of article 25. In the subsequent section, we outline the case against this classic interpretation, and we introduce the working hypothesis that has guided our attempt to construct a more plausible interpretation. In the chapter’s concluding section, we will say something more about the structure of the book and present the different chapters.

The national sovereignty myth

There seems to have been little controversy about article 25 among the drafters in 1830–1831. But this article did soon become an object of disagreement. In the decades after 1831, the sentence stating that “All powers emanate from the Nation” was sometimes understood in a Rousseauist vein, sometimes in light of the ideas of Benjamin Constant. Some understood it as an expression of Doctrinaire liberalism, while still others held that the statement was vacuous because the drafters lacked a genuine understanding of sovereignty. As Chapter 11 will demonstrate, these and other interpretations vied in public law manuals without a clear victor in sight until, from the 1950s on, opinions coalesced around one specific interpretation. Starting with the first edition of André Mast’s influential public law textbook, published in the summer of 1950 (Mast, 1950, pp. 66–68),⁶ ever more authors came to agree as to what the drafters of the Belgian Constitution genuinely intended when writing that all powers emanate from the nation. This consensus can be summarised as follows. The drafters wanted to break with theological or absolutist justifications of sovereignty, which they saw as potential threats to liberty. Yet, they did not grant sovereignty to the ‘people’, understood as the set (or a subset) of all currently living citizens. Instead, they granted sovereignty to the ‘nation’, an abstract, transhistorical entity that encompasses not only currently living citizens but also earlier and future generations of citizens. The former option would be ‘popular sovereignty’ (typically associated with Rousseau), whereas the latter option is ‘national sovereignty’ (purportedly originating with Sieyès). Both types of sovereignty were supposedly propagated by the French Revolution, but the Belgian founders – just like the French drafters of 1791 – consciously picked national sovereignty.

This choice for the nation as the subject of sovereignty has a number of ‘elitist’ implications. (i) Given that the nation does not materially exist, it can only express itself by means of representative institutions. Thus, direct democratic procedures are excluded, as only careful deliberation by representatives can reveal the will of the nation. (ii) National sovereignty provides a potential argument against universal suffrage, since voting is not a fundamental ‘right’ of the citizens but only a means (or a ‘function’) to appoint the most competent representatives of the nation. iii) In the exercise of their mandate, representatives are not bound to the opinions or interests of their voters, since they are representing the nation rather than the actual electorate.

Today, most public law textbooks insist that the Belgian drafters made a conscious choice for national sovereignty, possibly with these three ‘elitist’ implications clearly in mind (see e.g. Alen and Muylle, 2011, pp. 120–130; Gilissen, 1958, pp. 11–12; Mast, 1981, pp. 27–30; Rimanque, 2005, pp. 100–101; Senelle, 1974, pp. 66–68; Tilleman and Alen, 1992, p. 11; Uyttendaele, 2001, pp. 25–31; Vande Lanotte and Goedertier, 2013, pp. 203–218; Velaers, 1999, pp. 228–233; Wigny, 1952, pp. 224–225). In contrast to this general consensus, a small number of contemporary scholars maintain that the Constitution sanctions the principle of popular sovereignty, in line with the ‘Rousseauist’ tradition (De Meyer, 1985, p. 134; De Witte, 2003, p. 353),⁷ or that the Belgian drafters simply had no theoretically coherent view on sovereignty (Delpérée, 1987, p. 301; Velu, 1986, p. 78).⁸ Yet, the overwhelming consensus reads that the drafters opted for ‘national sovereignty’.

The consensual emphasis on ‘national sovereignty’ has important practical effects. Most significantly, it provides a key argument against the constitutionality of direct citizen participation, in particular of referendums. Since 1985, the Belgian Council of State has consistently declared legislative proposals to introduce binding and non-binding referendums at the federal, regional, and community levels unconstitutional, as a violation of the principle of national sovereignty enshrined in article 25 (Opinion of 15 May 1985, Parl. St. Kamer 1983–1984, no. 783/2, 8).⁹ This reading of article 25 has often been confirmed, with respect to both ordinary legislative referendums and ‘constitutional’ referendums (e.g. referendums concerning the transfer of sovereign powers to supranational bodies). Thus, in its opinion on a proposed referendum concerning a constitution for Europe, the Council recalled that the Belgian Constitution “is grounded not in a system of popular sovereignty but in a system of national sovereignty, in which the Nation is represented by the established powers”. In consequence, “methods of direct democracy on the federal, the regional and the community levels” are not allowed (Opinion of 29 November 2004, Parl. St. Kamer 2003–2004, no. 0281/004, 4–5). In a similar vein, most scholars opposing the use of referendums refer to the concept of sovereignty in article 25 as an important argument against referendums (see e.g. Alen and Muylle, 2011, pp. 121–126; Rimanque, 2005, p. 101; Velaers, 1999, pp. 149–166). It should be added that ‘national sovereignty’ is not the only legal line of reasoning against the introduction of direct democracy. The second major argument introduced by the Council of State, and supported by legal doctrine, is based on the ...