Who's Afraid of Supra-State Constitutional Theory?: Two Reasons to Be Sceptical of the Sceptics
K. Walton, W. Sadurski, M. Sevel (eds.), Legitimacy: The State and Beyond (Oxford University Press: 2018)
28 Pages Posted: 8 Dec 2017
Date Written: December 7, 2017
Scepticism about bringing constitutionalism beyond the state to address the legitimacy questions raised by the transition to a ‘post-Westphalian’ world is a familiar trope in international legal literature. Whereas supra-state constitutional scepticism comes in a variety of forms, a common theme which runs through it, is the use of the concept of a demos to argue that the lack of the necessary conditions such as solidarity for the concept beyond the state, makes supra-state constitutional theory idealistic which itself presents its own problems of legitimacy. This paper advances two reasons to be sceptical of this scepticism. Firstly, it argues that the normative claims which underpin the idea of a demos – that is that groups which share common ‘pre-political’ empirical features should be self-governing – is itself potentially idealistic and is therefore susceptible to the same problems sceptics identify with supra-state constitutional theory. Secondly, it argues that it is not clear that idealism is a problem in normative theory, not least because normative theory necessarily entails counterfactual elements. As such, the paper argues that even highly idealised normative theory is relevant to normative debates, including with respect to the legitimacy questions raised by the post-Westphalian transition.
Keywords: global governance, supra-state constitutionalism, postnational constitutionalism, no demos thesis, ideal theory, non-ideal theory
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