Abstract
'[We] need an independent legal service to make it clear that the Constitution or international laws are not a rag of paper', we learned from a 2022 Tweet by a former chairwoman of a foundational political party in response to the Constitutional Court's annulment of the Flemish legislative educational targets. But do we not already have an institution that checks through ex ante advisory opinions whether proposed rules are in compliance with higher norms, the division of competences or conditions of form: the Legislative Section of the Council of State?
Increasingly in scholarly debate, but even in the news media, the Legislative Section of the Belgian Council of State is either criticized or embraced without any doctrinal or empirical knowledge of the role and functioning of this body, leading to misunderstandings, misjudgments or even misues of its opinions.
The overarching research objective is to find an added value that the Belgian Council of State, Legislative Section, constitutes as opposed to possible alternatives. This research objective is met by deciphering the foundational constitutional principles underlying the Belgian Constitution and verifying how the Legislative Section helps to improve these principles or concepts or – on the contrary – disturbs one of them.
The main research question is therefore: What is the added value of the Belgian Council of State, Legislative Section, for Belgian constitutional law, taking into account (a) the advisory competence in light of the rule of law and human rights, (b) the advisory competence in light of democracy, (c) the separation of powers as an institution pressed between the three powers, (d) the federal nature of the institution and (e) the supranational multi-layeredness of the legal order ?
The stratified research question continuously has three legs: (i) descriptive, (ii) normative, and (iii) prescriptive, meaning that (i) the role of the Legislative Section is theoretically and empirically described, (ii) an abstract evaluation is made on the use and functioning of such an advisory body, and (iii) concrete and pragmatic suggestions are formulated on how the Legislative Section could be practically reformed or streamlined in order to improve its core function.
In the end, the research aims to examine the Legislative Section as a black box of constitutional law in both of its meanings: (1) unveiling and evaluating this largely unknown or underestimated institution and (2) not unlike the black boxes used to track and investigate airplane crashes, analyze how the Legislative Section contributes to avoiding issues in the aforementioned constitutional principles and concepts.
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