The Argument From Transnational Effects I: Representing Outsiders Through Freedom of Movement

European Law Journal, Vol. 16, pp. 315-344, 2010

U Iowa Legal Studies Research Paper No. 09-23

49 Pages Posted: 20 May 2009 Last revised: 8 Jun 2010

Alexander Somek

University of Iowa - College of Law

Date Written: June 7, 2010

Abstract

This article and its sequel examine an argument that has become a shibboleth for the European pro-attitude towards international and supranational legal arrangements.

The argument says that supranational or transnational forms of integration, in particular market integration, are desirable on account of democracy itself. National democracies find themselves thereby forced to confront and to internalize the externalities that they cause for one another. A fortiori, democracy becomes supposedly emancipated from the confines of the nation state. Since the argument favours normative limitations on national political processes it seems to lend strong support to the introduction of transnational constitutional discipline.

In this article and its sequel it is claimed that the argument, correctly understood, cannot support the creation of transnational democracy. Rather, in a critically recalibrated form, the argument, paradoxically, provides strong backing for the existence of bounded political communities without, for that reason, succumbing to ontologically questionable beliefs about the essence of national communities. Hence, the argument is really as much about the limits set to transnational integration as it is about their legitimacy. This explains why it is of central relevance to constitutionalism in a global age.

Keywords: democracy, freedom of movement, beyond the nation of state, international trade

JEL Classification: Z00

Suggested Citation

Somek, Alexander, The Argument From Transnational Effects I: Representing Outsiders Through Freedom of Movement (June 7, 2010). European Law Journal, Vol. 16, pp. 315-344, 2010; U Iowa Legal Studies Research Paper No. 09-23. Available at SSRN: https://ssrn.com/abstract=1394480 or http://dx.doi.org/10.2139/ssrn.1394480

Alexander Somek (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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