Disabling constitutionalism : can the politics of the Belgian Constitution be explained?
Faculty of Law
New York :Oxford
International journal of constitutional law. - New York
, p. 279-302
University of Antwerp
For the second time in just a few years, Belgium recently faced a profound political and institutional crisis. Since constitutions are the ultimate means of building and sustaining a just and stable politico-institutional order, these crises raise the question of what role the constitution plays in channeling and/or constraining the political state of affairs. This is a most pressing topic, especially since the dominant theory about why and how countries such as Belgium are able to function as stable polities also claims to be indicative of the democratic quality of these countries. In this article, it is submitted that the Belgian case can indeed be instructive in telling us a bit more about the constitutional conditions that are, if nothing else, at least not antagonistic to societal stability. The thesis proposed in this article is that for creating a stable society, there should be a connection between what is called negative and positive constitutionalism (S. Holmes): not only should a constitution disable political decision-making by building procedural roadblocks or by enacting bills of rights (negative constitutionalism); it can also help create the very demos which governs itself through the constitutional regime by including incentives for politicians to cooperate (positive constitutionalism). The Belgian Constitution has failed in connecting these types of constitutionalism. And since partition and secession, which might be the result of all this, usually come with an array of negative consequences (the possibility of violence being one of them), this is a problematic state of affairs.