The return of constituent power: A reply to Mattias Kumm

Abstract

This comment takes issue with Mattias Kumm's original and ambitious attempt to recast the concept of constituent power in thoroughly normative terms as a way of extending its significance from the national to the transnational domain. It argues that Kumm's approach, by treating actually emergent patterns of transnational political consciousness as irrelevant to our understanding of the normative impetus of transnational constituent power, neglects constituent power's modest but vital role in providing a base point of orientation in the development of collective forms of self-recognition and self-projection. It follows that Kumm's thesis cannot satisfactorily account either for the motivational basis for transnational legal and political authority or for the appropriate division and interplay of jurisdiction between national and transnational constituencies. A better approach to questions of the relationship between state-centered legal and political authority and cosmopolitan justice would start from a firmer sense of the gap between the actual and the ideal, of the significance of that gap, and of the difficulties and possibilities attendant upon efforts to bridge that gap.