IILJ Working Paper 2003/3 (History and Theory of International Law Series)

Postnational Constitutionalism and the Problem of Translation

Neil Walker

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A few years ago Joseph Weiler spoke of the deep-seated “problems of translation” of the core normative concepts of constitutionalism from the state to the European Union setting and by inference to other settings beyond the state. As we shall see in due course, the problems of translation are profound indeed, but before we can begin to address them we must pose a prior question. Is it at all legitimate even to attempt to translate the language and normative concerns of constitutionalism from the state to the non-state domain? If it is not, there is no problem that merits, still less requires, our attention. Let us begin, then, with that prior question before proceeding to a substantive examination of issues of constitutional translation. Throughout the discussion the main focus is on the European Union as the most developed site of postnational constitutionalism, but it will hopefully become apparent that the arguments brought forward also apply to non-state sites of ‘constitutional’ discourse more generally.