Who's afraid of Suprastate Constitutional Theory? Two reasons to be sceptical of the sceptics

Research output: Chapter in Book/Report/Conference proceedingChapter (peer-reviewed)peer-review

Abstract / Description of output

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.
Original languageEnglish
Title of host publicationLegitimacy
Subtitle of host publicationThe State and Beyond
EditorsWojciech Sadurski, Michael Sevel, Kevin Walton
Place of PublicationOxford
PublisherOxford University Press
Chapter9
Pages182-205
Number of pages24
ISBN (Print)9780198825265
DOIs
Publication statusPublished - 1 Apr 2019

Keywords / Materials (for Non-textual outputs)

  • supra-state constitutionalism, postnational constitutionalism
  • non-ideal theory
  • ideal theory
  • no demos thesis
  • global governance

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