Postnational constitutionalism and democratic legitimacy theories

Abstract

Legal regimes and instances of decision-making situated beyond the borders of national states have been increasingly responsible for producing law. This postnational context raises important theoretical discussions about what kind of legitimacy can be achieved by a law that is neither state-based nor public international law. Restating the idea that there is an important legal and political legacy left by modernity, several theorists have sought to understand the new transnational dynamics in terms of democracy and constitutionalism. The purpose of this paper is to present some of the theoretical efforts that seek to readjust these concepts to the new reality of transnational law. First part presents a brief overview of the current scenario of multinormativity experienced most vigorously in the past few decades. Second and third parts seek to expose some of the theories present in the debate on democratic legitimacy and transnational constitutionalism, respectively. Finally, last part launch some remarks about the difficulties – but also the importance – of reconciling the two concepts.