Papers by Jan-Baptist Lemaire
The debate in Belgian scholarship about changing the rules of the amending procedure of the Belgi... more The debate in Belgian scholarship about changing the rules of the amending procedure of the Belgian Constitution does have some history now. Since 2003, art. 195 of the Belgian Constitution (BC), enshrining the amending process, has appeared in every ‘declaration of revision of the Constitution’. It does not sound surprising, then, that for more than ten years now (and even longer), scholars too have been debating about ‘changing the constitutional change’. In the debate, flexibility of the constitution seems to be the high word. However, international literature on democratic theory in general, and democratic constitution-making in particular, seems to be warning constitution-makers all over the world for forgetting about democracy. In short, (two) things ought to change in the discourse on constitutional change: democracy should be reinstated, and scholars should look more to (interdisciplinary) arguments from inter-national democratic theory
In this paper I discuss the position and merits of the German legal scholar Gustav Hugo in the ev... more In this paper I discuss the position and merits of the German legal scholar Gustav Hugo in the evolution of legal science in nineteenth century Germany.
Thesis Chapters by Jan-Baptist Lemaire
In this research the processes of constitutional amendment in Belgium and in the EU - equating tr... more In this research the processes of constitutional amendment in Belgium and in the EU - equating treaty amendment with constitutional amendment – are first assessed from a democratic point of view and subsequently compared. It is suggested that both the constitutional processes of established democracies such as Belgium and the EU contain serious democratic flaws. The constitution-making processes of the EU have already been criticised for its democratic defects. However, sceptics of the EU's democratic deficit argue that the Union has always been compared to ideals of democracy that no self-defined democracy can ever hope to achieve. Therefore, it seems only appropriate to try comparing the democratic credentials of the Union not only with an abstract standard, but also with an ordinary nation-state.
Similarly, in Belgium, the constitution's amendment process has recently become the topic of a large debate on its future, caused by the constitutional tinkering with art. 195 Cons. – containing the amendment process. – at the edges of legality and democratic decency. However,
the debates surrounding these issues have been rigorously legal and have always been approached by legal scholars only. Because of the focus on legal aspects, and because of the scholars' unaccustomedness to non-legal arguments, the debate can be said to suffer from a
democracy deficit in itself. Meeting this critique is one of the goals of this research.
Thus, the choice seems evident to assess the processes of constitutional amend in both the EU and in Belgium and to compare the results of both examinations in order to find out whether this changes the democratic conclusion on one or both of the processes. The research concludes that it does indeed change the conclusion. Moreover, striking similarities between the democratic defects of the EU and Belgium are found, which offers the opportunity of suggesting a solution of which both might benefit.
Additionally, this research aims to develop its own standard to assess these processes, as international literature does not provide adequate standards to examine only processes of constitutional amendment. Moreover, not a model will be built but rather principles will be used,
as these allow a more flexible approach with regard to democratic assessment. A third purpose of this research is therefore assessing whether these principles will serve useful also beyond this paper. The reached conclusion in this is that although the principles have not been
able to account for all the important aspects of democratic constitution-making, they did nevertheless provide a very good assessment and offer a refreshing view to examine processes of constitutional amendment.
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Papers by Jan-Baptist Lemaire
Thesis Chapters by Jan-Baptist Lemaire
Similarly, in Belgium, the constitution's amendment process has recently become the topic of a large debate on its future, caused by the constitutional tinkering with art. 195 Cons. – containing the amendment process. – at the edges of legality and democratic decency. However,
the debates surrounding these issues have been rigorously legal and have always been approached by legal scholars only. Because of the focus on legal aspects, and because of the scholars' unaccustomedness to non-legal arguments, the debate can be said to suffer from a
democracy deficit in itself. Meeting this critique is one of the goals of this research.
Thus, the choice seems evident to assess the processes of constitutional amend in both the EU and in Belgium and to compare the results of both examinations in order to find out whether this changes the democratic conclusion on one or both of the processes. The research concludes that it does indeed change the conclusion. Moreover, striking similarities between the democratic defects of the EU and Belgium are found, which offers the opportunity of suggesting a solution of which both might benefit.
Additionally, this research aims to develop its own standard to assess these processes, as international literature does not provide adequate standards to examine only processes of constitutional amendment. Moreover, not a model will be built but rather principles will be used,
as these allow a more flexible approach with regard to democratic assessment. A third purpose of this research is therefore assessing whether these principles will serve useful also beyond this paper. The reached conclusion in this is that although the principles have not been
able to account for all the important aspects of democratic constitution-making, they did nevertheless provide a very good assessment and offer a refreshing view to examine processes of constitutional amendment.
Similarly, in Belgium, the constitution's amendment process has recently become the topic of a large debate on its future, caused by the constitutional tinkering with art. 195 Cons. – containing the amendment process. – at the edges of legality and democratic decency. However,
the debates surrounding these issues have been rigorously legal and have always been approached by legal scholars only. Because of the focus on legal aspects, and because of the scholars' unaccustomedness to non-legal arguments, the debate can be said to suffer from a
democracy deficit in itself. Meeting this critique is one of the goals of this research.
Thus, the choice seems evident to assess the processes of constitutional amend in both the EU and in Belgium and to compare the results of both examinations in order to find out whether this changes the democratic conclusion on one or both of the processes. The research concludes that it does indeed change the conclusion. Moreover, striking similarities between the democratic defects of the EU and Belgium are found, which offers the opportunity of suggesting a solution of which both might benefit.
Additionally, this research aims to develop its own standard to assess these processes, as international literature does not provide adequate standards to examine only processes of constitutional amendment. Moreover, not a model will be built but rather principles will be used,
as these allow a more flexible approach with regard to democratic assessment. A third purpose of this research is therefore assessing whether these principles will serve useful also beyond this paper. The reached conclusion in this is that although the principles have not been
able to account for all the important aspects of democratic constitution-making, they did nevertheless provide a very good assessment and offer a refreshing view to examine processes of constitutional amendment.