Quod Omnes Tangit: Transnational Constitutions Without Democracy?
Journal of Law and Society 2018
19 Pages Posted: 23 May 2018
Date Written: May 11, 2018
Critics of global constitutionalism rightly point to a democratic deficit of transnational regimes. They base their critique on a time-honoured principle of democracy: The identity of authors and affected people is the universal core of democracy. However, in its long winding history, the democratic principle had always been re-contextualized. Such a re-contextualization of democracy which requires generalization as well as respecification is needed again today under the conditions of transnationalization. As for generalisation the article’s main thesis is: Political representation, the traditional concept of democracy for the nation state, is replaced by self-contestation, which needs to be firmly institutionalized in transnational regimes. As for respecification the main thesis is: self-contestation cannot be established in a one-size-fits-all approach, but in wide variations that reflect the extreme epistemic diversity among issue-specific transnational regimes. The constitutional principle of “epistemic subsidiarity” may open new perspectives for developing different procedures of self-contestation for different regimes.
Keywords: Transnational Democracy, transnational constitutionalism, democratic theory, epistemic subsidiarity
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