The Legality-Legitimacy Bifurcation in the Analysis of Constitutional Amendments: A Case Study of Belgium's State Reforms

Abstract Many legal rules and principles may govern constitutional amendment. Observance of these rules and principles is an elementary focus point for the study of constitutional change. But constitutions do not exist solely in a legal reality. They are a cornerstone of the body politic in which they are adopted. Studying constitutional amendments through the lens of their legitimacy requires more than merely assessing their legality. However, distinguishing legitimacy from legality raises the question of whether an illegal amendment can still be considered legitimate, and conversely, whether a legal amendment can still be deemed illegitimate. Through a case study of constitutional overhauls in Belgium in the post-war period, I explore how these two possibilities manifest in practice, demonstrating that at crucial occasions in a state's history, amendments deemed illegal may be legitimised, and technically legal amendments may face criticism regarding their legitimacy.