On the Conceptual Relevancy of 'Constituent Power' to Law beyond the State: An Outline of Preliminary Critique

International law is not always about the making, using and interpretation of rules by a presumed range of state and non-state actors. Potentially affected by international legal rules, individuals and groups in civil society can also identify the effects of law on them and may feel that they need to promote the transformation of the law which appears to hinder the kind of life they want. Constituent power may be one way for ordinary people to react to laws. By means of constituent power, they may protest transnational organisations like the EU to ask for more opportunities to take apart in the making and application of law. If the entitlement to participation is not formally made known for people, they may still want to gather to discuss and reach consensus about what law is exactly unsatisfactory and whether it needs to be changed. Thus, people usually presume only particular kinds of constituent power relating to the contexts of their life and become interested in them, i.e., the ‘power’ to expand democratic procedure beyond lawmaking. By a critique of existing theories on the constituent power relevant to law beyond the state (LBS), this thesis considers whether the concept of constituent power can be meaningfully related to transnational law to describe a distinct sort of social phenomena. LBS implies that the people’s mind to perceive law’s effects is no longer centred on laws that constitute ‘small worlds’ like the state. But constituent power can only be talked about contextually. This thesis argues that if we do not first look at the context in which people experience law’s effects, constituent power can only be considered as the force to constitute laws. When constituent power is related to LBS in this way, there might be an ‘antinomy’. Constituent power is either reduced to a part of transnational legal process or no longer relevant to LBS at all. Instead, it seems more meaningful to consider how a context, i.e., a space, is structured, in which people find constituent power necessary for reacting to the law that looks unsatisfactory. However, the space must not be structured by law only. Otherwise, people will still be encouraged to constitute laws.