Raymond Carré de Malberg and the interpretation of sovereignty in the Belgian constitution

Abstract

The article deals with the commonplace interpretation of the meaning of sovereignty in the Belgian Constitution. According to a widely shared opinion, the Belgian Constitution employs the national sovereignty model which is opposed to popular sovereignty and as such excludes all forms of direct citizen participation. The article traces the origins of this interpretation to the theory of an influential French jurist Raymond Carré de Malberg and addresses the question of whether the national sovereignty model by definition excludes citizen participation. This essay situates Carré de Malberg’s theory in the context of his influences and explains the key concepts that structure his theory of sovereignty, i.e. legal person of the state, organs of the state, national will, etc. It shows how his formulation of the idea of national sovereignty allows him to make a strong case against direct citizen participation in his earlier writings, but how later, he drastically shifts his position to endorsing the sovereignty of the general will and referendums as the only appropriate way of limiting parliamentary power. Returning to the question of the interpretation of sovereignty in the Belgian constitution, the question is raised which, if either, of Carré de Malberg’s takes on sovereignty can remain valid for understanding sovereignty in Belgium.