Abstract

The constitutionalization hypothesis in international law cannot claim validity without addressing the problem of constitutional legitimacy. This paper tries to apply the familiar statist answer - the distinction between constituent and constituted power - to the prominent role of states in the international community.Emphasizing the theories of both Abbé Sieyès and Carl Schmitt by modifying them for transnational application, the argument is put forward that the potential role of states as constituent power in a constitutionalized international legal order is a matter of perspective primarily: If the question of constituent power is asked as a question of technical origin, the position of states as ultimate point of reference in traditional international law at first glance might be seen as analogous to the self-unfolding of popular sovereignity within the nation-state. As soon as the question of constituent power becomes an issue of legitimacy, the law-making competence of states does not suffice for reconstructing them as transnational constituent power any longer.