On Europe's functional constitutionalism : towards a constitutional theory of specialized international regimes

Abstract

This paper draws on the development of the European Union's legal order in developing the concept of "functional constitutionalism," which is used to understand and critique the constitutional features of specialized postnational institutions. This concept is intended to highlight the drawbacks of an inflationary use of constitutional terminology in the global governance literature and to emphasize the substantive differences between constitutionalism as applied to postnational institutions on the one hand, and the conventional rights-based and popular sovereigntist models of constitutionalism tailored to the nation-state context. More broadly, the paper is a contribution to the ongoing scholarly effort to adapt the core interpretive and normative concepts of political theory to the transnational realm.