Abstract

Constitutional precedence constitutes a defining element of modern constitutionalism. This chapter aims to elucidate the way in which this idea was embedded in the Belgian Constitution of 1831. It does so by combining a historical-genealogical approach with a legal one. The chapter begins with a discussion of the genesis of the Belgian Constitution in relation to the Fundamental Law of the United Kingdom of the Netherlands. It shows how the Belgian opposition’s constitutional resistance to government policy created a debate over the interpretation of the Fundamental Law, which in turn provided the conceptual building blocks for the understanding of constitutional precedence in the 1831 Constitution. After examining the concept of legal order, the chapter explains how, in the eyes of the Belgian revolutionaries, the Belgian Constitution could be a legitimate replacement for the Fundamental Law as the foundational document of the state. The concern for constitutional precedence was expressed furthermore by recurring debates within the National Congress and the press over the constitutionality of the acts of both the constituting and constituted powers. The chapter then turns to the constitutional text and analyzes the way the precedence of the Constitution was legally anchored into the Belgian state system. Constitutional precedence was expressed by a combination of measures concerning (a) the special status and the endurance of constitutional law as compared to ordinary law and (b) the Constitution’s status as the legally binding ground rule for the constituted powers. Finally, the precedence of the Constitution was symbolically expressed by a discourse of respect for the Constitution as the ultimate guarantee of the wellbeing of the state.

Highlights

  • In 1852 a lavishly illustrated edition of the Belgian Constitution was published at the behest of Prime Minister Charles Rogier.1 It was only one of many government-sponsored initiatives to harness popular support for the Constitution in the years following the eventful year 1848.2 In stark contrast to its neighboring countries, the revolutionary wave failed to stir up any serious unrest in Belgium.3 The Constitution, the fruit of the Belgian Revolution of 1830, was credited for the young state’s remarkable institutional stability

  • The chapter turns to the constitutional text and analyzes the way the precedence of the Constitution was legally anchored into the Belgian state system

  • The 1852 volume opens with an allegory depicting Belgium as a maiden

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Summary

Deseure

The Belgian Constitution could be a legitimate replacement for the Fundamental Law as the foundational document of the state. The concern for constitutional precedence was expressed by recurring debates within the National Congress and the press over the constitutionality of the acts of both the constituting and constituted powers. The chapter turns to the constitutional text and analyzes the way the precedence of the Constitution was legally anchored into the Belgian state system. Constitutional precedence was expressed by a combination of measures concerning (a) the special status and the endurance of constitutional law as compared to ordinary law and (b) the Constitution’s status as the legally binding ground rule for the constituted powers. The precedence of the Constitution was symbolically expressed by a discourse of respect for the Constitution as the ultimate guarantee of the wellbeing of the state

Introduction
The Fundamental Law and the Question of Royal Sovereignty
Towards a New Legal Order
Constituent Power
The Question of Constitutionality
Precedence in the Belgian Constitution
Differentiation from Normal Legislation
The Oath on the Constitution
Judicial Review
Findings
Epilogue
Full Text
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