Beyond Federal Dogmatics: The Influence of EU Law on Belgian Constitutional Case Law Regarding Federalism

5. Three partial explanations and the road ahead

5. Three partial 1033 explanations and the road ahead 1033 And at the same time probably too general. The reason why I add this caveat is because I refrain from taking a general position on the question of whether it is überhaupt possible to conceptualize competence allocation in a fully abstract (universalizable) manner. As regards the Constitutional Court – employing the toolbox conception – I argue that an overly abstract elaboration of competence allocation as a manner of representation of judicial reasoning is susceptible of distorting constitutional reality. However, this by no means implies that I take a position on the question in general. Even so, taking a position does have ramifications on the object under discussion here (compare in the latter regard eg Paul Craig, Competence and Subsidiarity, 2006 EU Administrative Law 40, 44 (arguing against universalizability) and Conway, supra note 1031, at p. 973, 983-84 (2010) (accepting universalizabity)). Be that as it may, I explicitly formulate this caveat to emphasize that I do not necessarily accept the repercussions of the abstractions that I make in this explanatory model. – 255 – 164. Internal substantive logic? 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 that it is downright impossible to construe a fully substantive coherent account of the relationship between EU and Belgian constitutional law and apply it to the field of federalism (even if I do find it highly implausible), and although I am not of the opinion that coherence (perhaps, after the interpretive turn1034 , as the epitomization of all rule of law values) is not something a judge should not strive for as a regulative ideal, the main point of this book has been to construe European law as a tool in a (pre-existing, though evolving) toolbox, so as to remain as faithful as possible to what could be deemed a representation of how constitutional law in action works. And – from my point of view – in federalism matters there might be far less coherence than some authors either fallaciously elaborate or erroneously presuppose. Primary suspect for this lack of coherence in practice seems to be the complexity of considerations which are or have to be taken into account, such as rule of law values – however broadly construed1035 –, institutional or political considerations, and often even considerations pertaining to the specific facts of the case. I have not purported to try to fully grasp and elaborate the complexity of the issues here but nonetheless have tried to argue that the heuristic model of tools might indeed constitute a more adequate vocabulary to talk about the issues raised, without disavowing their complexity. 165. Partial and abstract explanations. In light of the foregoing, the following ‘explanations’ of complexity and interaction can only be partial. Moreover, they are probably too abstract, in the sense that they rely on considerations that have no immediate connection to specific case law. However, having run through the sources, it seems to me that the tension which European law produces within constitutional adjudication in Belgium is potentially serious primarily because 1034 Eg Dworkin, Justice in Robes, supra note 62, at p. 168 et seq. (explaining how legalism should be understood in terms of broader coherence). Compare Robin West, The meaning of equality and the interpretive turn, 66 Chi.-Kent L. Rev. 451, 465 et seq. (1990) (explaining how law can constrain in an interpretive age, based not primarily on coherence, but rather on the law-like nature of the Constitution, which imposes constraints that traditional interpretivism cannot capture). In this sense, our rule of law values concept tries to capture as much of the constraint as can be reasonably categorized under the concept. 1035 Surely the outline of the SLIR in Belgium has not not made matters easier. Three partial explanations and the road ahead – 256 – of three reasons, the first being ‘Belgian’, the second clearly ‘European’ and the third hinging upon the relationship of both. Integration of European law in constitutional jurisprudence – 257 – 5.1 Integration of European law in constitutional jurisprudence 166. Factor 1: thorough integration. Notwithstanding early criticism of not...