Het soevereiniteitsbegrip in de Belgische grondwet van 1831. Een rechtshistorisch onderzoek naar de betekenis van soevereiniteit voor de organisatie van de Belgische staatsmacht

The Belgian Constitution states that "All powers stem from the Nation" (art. 33). According to the Council of State and most constitutional scholars, this formulation is supposed to refer to the notion of national sovereignty, meaning that sovereignty lies with the unified and indivisible nation. National sovereignty is opposed to the notion of popular sovereignty, where sovereignty lies with the actually existing people. This generally accepted interpretation has far-reaching implications, since it attributes the legal decision-making power exclusively to the political representatives and rules out instruments of direct democracy. This research puts the classical interpretation to the question. Through an interdisciplinary analysis (both historical and legal) it explains the 1830-31 conception of sovereignty, endorsed by the Belgian 'founding fathers'. In the first part our research, we analyzed sovereignty as a broader concept of constitutional law. Departing from the observation that sovereignty is a historically variable and essentially contested concept, we examine the notion of sovereignty as a legal concept of Belgian public law. Apart from relatively recent scholarship that acknowledges the possibility for a new interpretation or a modification of the classic interpretation, we conclude that the Belgian legal scholarship and the (advisory) jurisprudence of the Council of State starts from a monolithic and holistic understanding of sovereignty. It is derived from an interpretation of positive law, developed by the French constitutionalist Raymond Carré de Malberg in the first half of the 20th century. In the second part we investigate the source or the subject of sovereignty, as understood in 1830-31. Here, we rely on an in-depth reading of the constitutional debates, as well as on the intellectual sources of the Belgian founding fathers. We establish that they did not discriminate between 'the nation' and 'the people' as the sovereign power. Our research further reveals that, contrary to what the classical national sovereignty doctrine maintains, the Belgian revolutionaries did not understand the nation as an abstract, transgenerational concept. They explained it as a tangible association of individuals, which had a collective will to live together. They also believed the nation to have an existence outside of the institutions it gave itself. Ultimately, the nation was explained as the constituent power. Our research ascertains, however, that this did not imply a right for the people to assume a constituent role at any given moment in the constituent phase, nor within the constituted order. Constituent power was to be exercised by means of representatives. Extra-constitutional claims were, however, not entirely dismissed: the collective right of resistance was admitted, at least in principle. This entailed that the people, when it judged the constitutional system to be failing, could reappear as a revolutionary, reforming power. Next we investigate how the founding fathers looked upon the exercise of sovereignty. Here, we conclude that, if self-governance and self-determination of the community were the points of departure, the revolutionaries almost unanimously acknowledged that political power had to be exercised through representation. This was the case for the constituent phase, as well as for the constituted order. Nevertheless, our research indicates that the constitutional system was not constituted as an 'exclusive representative' system, where the will of the political community was substituted for the political elite's will. Representatives had to take the community's will into account and express it to the best of their abilities. The multiplication of representative claims over various representative actors would protect the civil society's pluralism, as well as civil rights. In this regard the expression of the national wish was not exclusively reserved to the two legislative Chambers, but was also assigned to the King. Public opinion could evaluate the governmental decision-making and could weigh on political proceedings through various participatory channels. Elections, the press, the jury, local governance, the rights of association, assembly and petitioning; all were part of a resilient public opinion that was intended to interact with the state. At the same time these channels strengthened the individual development of the citizens, which in turn reinforced the public opinion as actor of the representative system. Next, but no less important, this research reveals another aspect of Belgian sovereignty, namely that a majority of the Belgian drafters wished the sovereignty concept away. Next to the fact that the original constituent power had no role to play in the constituted order, the drafters aimed to divide state power over a system of checks and balances, constituted in infra-institutional organs and extra-constitutional actors. The King was not merely 'constitutionalized' as a constituted power with attributed competences, but he was also neutralized: he was a neutral power, with interests which were made to coincide with state interests. This way, sovereignty resided nowhere specifically. Sovereignty was thus essentially understood in a negative way, as a prohibition of usurpation of political power. Understanding and organizing sovereignty this way, the drafters believed that one or more individuals would be prevented to appropriate political power for themselves. In this regard, the founding fathers not only wished to legitimize state power, but they also aimed to protect individuals. On the basis of a contextual analysis of the contemporary legal scholarship, we examine in the last part of our research the development of the sovereignty interpretation in Belgium between 1831 and de 1960's. Our findings reveal that a consistent and broadly shared theory of sovereignty remained initially absent in Belgium. Various political conflicts led to a variety of interpretations. A distinction between national and popular sovereignty did not exist before the social emancipatory movements pushed the issue during the second half of the 19th century. A distinction in the interpretation of national sovereignty emerged during the constitutional reform of 1891-1893. While progressive forces hoped to expand the representative system in a quantitative way through the introduction of universal (male) suffrage, the social-conservatives associated the progressive understanding with mob rule of 'the numbers'. Aside from the issue of participation, the attempts of King Leopold II to expand his personal rule with the introduction of a plebiscite led to a defensive reflex of the political establishment. As this research shows, these considerations would continue to fuel the sovereignty debate of the 20th century. The Royal Question and the plebiscite, which was organized in 1950 at that occasion, established the distinction between national and popular sovereignty. Originally, the contrast between the two sovereignty interpretations existed upon the dividing line of a (un)controlled democracy (a capricious, arbitrary majority democracy versus a moderate parliamentary democracy). In the Cold War context, both interpretations would gradually become pitted against each other as the underlying principles of two antagonistic governmental forms: popular sovereignty of communist Soviet regimes versus national sovereignty of Western parliamentary democracies. This sharp opposition, which meanwhile became connected with democratic participation (direct democracy versus representative democracy), would eventually be picked up by legal scholarship and become established as the authoritative reading of the Council of State.status: publishe