Soft Institutions
Bogdandy, Armin von and Jürgen Bast, eds 2006, Principles in European Constitutional Law, Oxford: Hart Publ, 419-449
32 Pages Posted: 24 Nov 2014
Date Written: November 1, 2006
Abstract
Constitutional law builds on two types of practices; the first entails the process of reaching an agreement about the core principles, norms and procedures which guide and regulate behaviour in the public realm of a polity; the second refers to day-to-day interaction in the multiple spaces of a community. Both types of practices are interactive and by definition social. As such they are constitutive for the fundamental laws, institutions and customs recognised by a community. The chapter calls the former ‘organisational’ and the latter ‘cultural’ practices and proceeds to highlight the impact of the societal underpinning of evolving constitutional law beyond the State. Following James Tully's distinction of two sets of constitutional practices, the chapter suggests learning from the project of accommodating cultural diversity within the constitutional framework of one State (Canada) when addressing recognition in a constitutional framework beyond the State (European Union).To that end, it is argued that in addition to the vertical time axis in Tully’s reconstruction of constitutional dialogues, a horizontal space axis requires analytical attention. Once constitutional norms are dealt with outside their socio-cultural context of origin, a potentially conflictive situa- tion emerges. The conflict is based on de-linking the two sets of social practices that form the agreed-upon political aspect, on the one hand, and the evolving customary aspect of a constitution, on the other. The potential for conflict caused by moving constitutional norms outside the bounded territo- ry of states (i.e. outside the domestic polity and away from the inevitable link with methodological nationalism) lies in decoupling the customary from the organisational. The chapter shows that it is through this transfer between contexts, that the meaning of norms becomes contested as differently socialised actors such as politicians, civil servants, parliamentarians or lawyers trained in dif- ferent legal traditions seek to interpret them.
Keywords: Norms, soft institutions, cultural practice, regulatory practice, European Union, dialogue, diversity
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