A simple sentence Towards a new interpretation of sovereignty in the Belgian Constitution

Ruf Geenens, Brecht Deseare, 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 Us pouvoirs émanent de la Nation”.1 This sentence is part of article 25 (now article 33 )[1] 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.[2] 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. 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. 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

A simple sentence 3 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 ven’ 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.

  • [1] In Dutch, the sentence reads, “AUe machten gaan nit van de Natie”. In German, it reads as follows: “AUe Gewalten ¿then von der Nation aus". The Constitution was translated into Dutch by the provisional government immediately after its promulgation, but the Dutch version only received the force of law in 1967. Until that year, only the French version was officially recognised. The official German version dates from 1991. 2 In full, article 25 reads as follows: “All powers emanate from the Nation. They are to be exercised as prescribed by the Constitution”. This article has stood unchanged in Belgium’s Constitution since 1831.
  • [2] The National Congress was Belgium’s 200-strong, provisional legislative assembly, elected in November 1830 and dissolved in July 1831. Its central task was to write and ratify a constitution tor the new state. A smaller commission prepared a first, rough draft (see Van den Steene, 1963) but the general assembly also took its task to heart. Reliable and relatively complete transcripts of the meetings of the constituent assembly were published in five volumes by Emile Huyttens in 1844. 2 Although, as political scientists note, it is not always easy to distinguish myth from reality in this purported ‘legitimacy crisis’. See Van Ham et al. (2017). 3 Even in Belgium’s Constitutional Court, supposedly an external check on the political system, party power looms large. The seats are attributed to the parties in accordance with the election results. See Pari. St. Senaar 2007-2008,9 October 2007, 18.
 
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