Reviving the Past or Enduring Continuity: French Emergency Laws in Belgian Constitutional History

Abstract

This article primarily focuses on the survival or revival of the French concept of state of siege (état de siege) within the Belgian legal sphere. According to the reasoning of the drafters of the Belgian Constitution, this legal entity should have been abolished at the founding of the Belgian State. In practice, however, this proved not to be the case. Both jurisprudence and practical application show that the state of siege, with the army acting as enforcer of public order, remained a customary response to social unrest. Based on this observation, the article seeks to examine how the state of siege survived. The central argument is that the state of siege was never formally repealed and survived as a pragmatic and ad hoc instrument, repeatedly invoked in times of crisis. Its continued use can be explained by three interconnected factors: (1) the fragmented nature of Belgian (military) legislation, (2) a culture of pragmatic (legal) continuity, and (3) a perception of social unrest as an existential threat to the political and social order. To support this argument, several case studies were analyzed in which the state of siege was used to manage social unrest, covering the period from 1831 to 1886. The research draws on a broad range of primary sources: case-law, military doctrine, and archival materials, alongside extensive literature on military intervention in public order during the nineteenth century.