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Beyond Federal Dogmatics (pdf)

The Influence of EU Law on Belgian Constitutional Case Law Regarding Federalism

Stef Feyen

The relationship between EU law and national constitutional law, including constitutional law in federalism matters, has been subject to an ongoing scholarly debate. This monograph contributes to this debate in two ways. The author argues for an approach to constitutional law that goes beyond the classic - coined dogmatic - understanding of constitutional case law regarding federalism as expounded in Belgian academia. Building on that basis, he sets out to rethink the framework within which the connection between EU law and national constitutional law can be understood. The analysis delves into the relationship (and sometimes tension) between ‘rule-of-law' values (which may serve as checks upon instrumental forms of reasoning) and the toolbox deployed in constitutional court case law to accommodate several rather pragmatic needs.

Published by: Leuven University Press

Title Page, Copyright Page

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pp. 1-6

Table of contents

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pp. 7-8

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Foreword

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pp. 9-10

...Whereas many young researchers publish their doctoral dissertation as their first monograph, I am pleased to introduce this monograph, written by a junior researcher whose dissertation is yet to come. In some respects, this book has characteristics which one could expect from a junior researcher: it tries to be innovative, explores issues from a (whole array...

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Reader information and acknowledgments

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pp. 11-12

...This work was written for international and Belgian scholars alike. Opting for such a wide public obviously gives rise to some difficulties. On the one hand, to be accessible to the international scholars, and perhaps the Belgian ones who are not familiar with constitutional law, an introduction to Belgian federalism had to be written. For Belgian scholars of...

Some commonly used abbreviations

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pp. 13-14

Introduction

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pp. 15-16

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General purpose and method: beyond dogmatics

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pp. 17-20

...In our “enlightened” times, the concept of dogma has acquired a rather negative connotation. Most people seem to believe that we should not accept dogma(ta) without constant, or at least potential critical reflection1. Even so, dogma continues to be relied upon in certain areas of life where we strive for a form of authoritative certitude, such as religion, or law. It seems as if our quest for stability here warrants the use of a modus of a thought...

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General object: federalism

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pp. 21-26

...If the point of the book is a methodological one, the legal materials to which the methodological considerations are made applicable, are situated in one area, that is federalism. This choice was conscious, in the sense that exploring the problem from the viewpoint of federalism – an area of law traditionally deemed to be closely related to politics – allows us to make...

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1. Influence and the toolbox concept: Some preliminary considerations pertaining to method

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pp. 27-54

...constitutional case law on federalism. “Influence”, however, is a difficult concept to grasp here, because it may mean a myriad of things depending on the perspective, because the object and subject of influence do not always allow for a clear definition, and because of issues related to understanding how law in general should be conceived of. The latter reason will lead us to consider the...

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2. Belgian federalism: A cursory overview

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pp. 55-84

...On the whole, Belgium’s federal structure must be understood as a ‘complex set of compromises that was the product of a series of protracted political negotiations’126. These negotiations dealt primarily with Flemish aspirations for (cultural) autonomy, Flemish fear of ‘Frenchification’ of the Brussels periphery, Walloon aspirations for economic autonomy, and minority protections, both for the Francophones in Belgium as a whole...

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3. The Belgian Constitutional Court and federalism

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pp. 85-184

...exclusivity, a broad interpretation of federated competences and the economic and monetary union which requires unity of policy from time to time. Alen further explains that in the 1989-2003 period, the Court, pursuant to some adaptations of the SLIR, relaxed its interpretation of implied competences and expanded the notion of the economic and monetary union...

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4. European influence on Constitutional Court case law

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pp. 185-252

...Many authors have delved into the ‘colorful reality’742 of the relationship between European law and the Constitutional Court. A whole array of questions has been raised, and often treated from different angles or perspectives...

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5. Three partial explanations and the road ahead

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pp. 253-276

...If anything can be noticed when reading through the foregoing passages, it is that – while they try to grasp certain phenomena into particular broader concepts or principles, they do lack some kind of internal substantive logic of what influence constitutes of. That is a criticism I cannot refute, because I believe it to be true, and – what is more – I even believe it to be my point. Although I do not argue...

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Conclusion

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pp. 277-280

...The Belgian Constitutional Court holds an ambiguous position towards European law. Whereas, generally, it has recognized its power to review the conformity of a legislative act approving a treaty with the Constitution, it also deploys these treaties, and more broadly European law as enshrined in treaties and other instruments, to decide upon the constitutionality of other laws. Especially in reviews that rely upon the constitutional...


E-ISBN-13: 9789461660824
Print-ISBN-13: 9789058679383

Page Count: 280