In the territory of the ancient Belgian Gaul, juridical elements of Roman, Germanic and feudal origin formed, merging together, innumerable local customs. Their writing began under the Dukes of Burgundy, shortly after the middle of the century. XV. While this work continued, the influence of the Alciato, a professor at Bourges in 1529, caused a brilliant revival of Roman law studies, whose principles were largely influenced by the legal development during and after the century. XVI. On 12 July 1611, under the archdukes Alberto and Isabella, the perpetual Edict was promulgated which regulated the use of the law of coutumes and integrated them, and remained in force as a common law of the Belgian provinces until the end of the 18th century. During this period, Belgian law was only minimally affected by the influence of the juridical and philosophical movement that was manifesting itself in neighboring countries: hence, if in this respect it appears to be lagging behind the general legal evolution of Western Europe, it must to this circumstance, having preserved some completely original characters.
Under French rule, Napoleonic legislation was extended to the Belgian provinces, of which some essential parts, such as the civil code and the code of civil procedure, are still in force.
Internal public law. – The constitution of February 7, 1831 regulates the organization of powers and guarantees the individual freedom of citizens. Founded on the principle of popular sovereignty and on the representative system, it consecrates the traditional doctrine of the division of powers, attributing the legislative to the king and the chambers, the executive to the king, the judiciary to the courts and tribunals. The preponderance belongs to the representative bodies, because custom has introduced parliamentary regime in Belgium (see also VI, p. 516). The recent extensions of suffrage seem to have accentuated some of the drawbacks of the parliamentary government and various political associations are studying reform projects aimed at establishing a better balance between government and national representation.
The king has no powers other than those attributed to him by the constitution. His person is inviolable, but his acts have no effect unless countersigned by one of the ministers, who are solely responsible. The king watches over the execution of the laws and appoints to public office; confers ranks in the army, of which he has supreme command; he makes treaties, most often subject to the approval of the chambers; summons the chambers, except for the meetings that they hold in their own right, can dissolve them, etc. Among the provisions relating to the judiciary, it is worth noting that which consecrates the institution of the jury “in all criminal matters and for political and press crimes” and that which proclaims the immovability of judges.
According to ehuacom, the king’s right to appoint superior judges is limited by a right of presentation by the same courts, the senate and the provincial councils. Courts and tribunals cannot judge the constitutionality of laws.
The individual freedoms of citizens have the widest guarantees in Belgium. Individual freedom, the inviolability of home, the freedom of teaching in all degrees, etc. are expressly consecrated.
As for the freedom of language, sanctioned in art. 23 of the constitution, the regional principle, on which the recent legislation on the matter is based, has inflicted severe restrictions on it. The cults enjoy, without exception, a freedom that excludes any intervention by the state, without prejudice to the constitutional obligation on the part of the state to pay the emoluments and pensions of the ministers of worship.
The institutions of the municipality and the province are among the most typical of Belgian public law. The province, to tell the truth, historically proceeds from the ancient French departments, dating back to the period after 1794; of this origin it has retained the character of a section of the state, invested with certain functions of general administration. But it constitutes at the same time an autonomous administrative entity, whose competence extends to all provincial interests. In addition to certain general functions delegated to it by the state, the management of municipal interests depends on the municipality. Its exceptional importance, in accordance with national traditions, derives from the fact that the concept of municipal interest extends to everything that the law does not expressly remove from the competence of the municipality.
The burgomaster, representative of the central power, is the only one on whom the municipal police depend; has the right to request the help of the armed force. The municipalities are subject to the supervision and protection of the government or the permanent provincial deputation. The most recent practice is oriented towards an increasingly clear preponderance of central authorities. Certain resolutions are subject to superior approval; all can be annulled by the king for reasons of illegality or because they are contrary to the public interest. The right of association granted to provinces or municipalities by the constitutional reform of 1921 made the organization of local or regional administration somewhat less rigid (see also VI, p. 516).
Judicial organization. – It is governed by the law of 18 June 1869 and by some complementary laws and is still based today, to a certain extent, on the principles laid down by the laws and decrees issued under French domination. In each “canton” sits a “justice of the peace” who has general jurisdiction for all shares up to the value of 2500 francs and special, without limitation of value, for all those established by law; the latter has recently been very extensive. In criminal matters, it judges fines and some crimes (vagrancy, etc.). Ordinary jurisdiction, both civil and criminal, belongs to the courts of first instance, whose jurisdiction in criminal matters is limited to crimes, while that for crimes, and for political and press crimes, is reserved for the Assize Courts, composed of ‘ a councilor of the Court of Appeal, two assessors and 12 jurors. Unlike the French system, the appreciation of extenuating circumstances belongs only to the magistrate members. The appellate courts decide on appeals from judgments made by the courts of first instance and by the commercial courts. The task of the Court of Cassation is to ensure compliance with the law and the uniformity of jurisprudence. It only decides issues of law and conflicts of jurisdiction. At each of these degrees of jurisdiction public prosecution is exercised by officials of the Public Prosecutor; but in the Courts of Assizes these functions are delegated to the Attorney General at the Court of Appeal or to a magistrate designated by him. At each of these degrees of jurisdiction public prosecution is exercised by officials of the Public Prosecutor; but in the Courts of Assizes these functions are delegated to the Attorney General at the Court of Appeal or to a magistrate designated by him. At each of these degrees of jurisdiction public prosecution is exercised by officials of the Public Prosecutor; but in the Courts of Assizes these functions are delegated to the Attorney General at the Court of Appeal or to a magistrate designated by him.
Beyond these jurisdictions of common law, the boards of arbitrators are worth mentioning, composed equally of representatives elected by the workers and by the employers, to judge disputes between these categories; the consular or commercial courts, elected by the traders; the provincial war councils and the Military Court of Appeal of Brussels, in which a magistrate sits alongside the military judges.
A project is being studied to create an administrative jurisdiction similar to the French Council of State.
