Quod omnes tangit: Transnational constitutions without democracy?

Abstract

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 recontextualized. Such a recontextualization of democracy which requires generalization as well as respecification is needed again today under the conditions of transnationalization. As for generalization, 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 multiple 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.