Sovereignty, Civic Participation, and Constitutional Law: the People Versus the Nation in Belgium
Sovereignty, Civic Participation, and Constitutional Law: The People versus the Nation in Belgium Edited by Brecht Deseure, Raf Geenens, and Stefan Sottiaux First published in 2021 ISBN: 978-0-367-48359-3 (hbk) ISBN: 978-0-367-71228-0 (pbk) ISBN: 978-1-003-03952-5 (ebk) Chapter 15 Sovereignty without sovereignty: The Belgian solution Raf Geenens (CC BY-NC-ND 4.0) This OA chapter is funded by KU Leuven. 15 Sovereignty without sovereignty The Belgian solution Raf Geenens “Let us delete the word sovereignty from our vocabulary” Benjamin Constant (1830) At least since 1950, Belgian constitutional law is in the grip of a myth: the myth of national sovereignty.1 Framed as an originalist claim about the meaning of arti- cle 25 at the time of its ratification, scholars and judges alike hold that sovereignty in the Belgian context means ‘national sovereignty’.2 National sovereignty is here understood as the opposite of popular sovereignty, in line with the conceptual dichotomy expounded by, among others, French legal theorist Raymond Carré de Malberg. In recent years, several authors have demonstrated that this inter- pretation of the Constitution is highly anachronistic (De Smaele, 2000; Deseure, 2016; Geenens and Sottiaux, 2015). The Belgian drafters, when working on the Constitution in 1830–1831, did not understand sovereignty in the terms that are now routinely ascribed to them. The national sovereignty myth, it seems, is a product of muddled thinking. In order to stave off the push for more – and more direct – democracy, subsequent generations of legal scholars applied ever thicker conceptual layers to the Constitution, up to the point where it has come to say nearly the opposite of what it said in 1831.
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