Elements of a Doctrine of Transnational Constitutional Norms

38 Pages Posted: 28 May 2024

See all articles by Vlad Perju

Vlad Perju

Boston College - Law School

Date Written: May 28, 2024

Abstract

This Article uses the traditions of constitutionalism to develop the building blocks of a doctrine of transitional constitutional norms. After arguing that existing doctrines of implicit constitutional unamendability, such as the basic structure and constitutional replacement doctrines, are derivative, the Article provides an account of the underlying primary doctrine: transnational constitutional norms. From the perspective of the form of government, constitutional norms are divided into peremptory and voluntary norms. Unearthing an old but now largely forgotten tradition of political thought, it defines peremptory norms as norms that derive from or constitute the form of government. These constitutional norms have a complex nature: domestic and transnational. The transnational dimension immunizes the people’s choice in favor of the democratic form of government by protecting peremptory norms from deselection, defined as the impermissible alteration or replacement of that form of government through piecemeal derogation from peremptory norms. Only the people as pouvoir constituant, but not their representatives, may chose the form of government and only through a full-scale process of constitution-making. The Article uses judicial independence to illustrate the idea of peremptory constitutional norms. The doctrine of transnational constitutional norms helps to resist attempts at undermining judicial independence and to protect the integrity of the democratic form of government against impermissible deselection.

Keywords: constitutionalism, form of government, democracy, peremptory constitutional norms, cosmopolitanism

Suggested Citation

Perju, Vlad, Elements of a Doctrine of Transnational Constitutional Norms (May 28, 2024). Boston College Law School Legal Studies Research Paper No. 629, International Journal of Constitutional Law, 2024 [10.1093/icon/moae023], Available at SSRN: https://ssrn.com/abstract=4845416 or http://dx.doi.org/10.2139/ssrn.4845416

Vlad Perju (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

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