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A Norm Too Far? Basic Values and European Governance

Antje Wiener

Recent contestations of basic values have brought the norm back to the centre of European governance. While the European Union (EU) has had its well documented share of contestations about basic values (compare for example, the White Papers, Hearings and the Constitutional Debate in the 2000s), it kept struggling about procedures to counter breaches with the norm on behalf of EU member states. In this regard, the high level contestations with regard to the constitutive dimension of the norm lacks a match in real politics (compare the failure to comply with the norm the sanctions against Austria in the 2000s to the current sanctions against Poland). While the mismatch between principles and practice of constitutional norms has been addressed by lawyers (see the debate on the Basic Values Protection triggered by Bogdandy et al. 2012 on the blog 'On Things Constitutional', see: http://verfassungsblog.de/en/rescue-package-for-fundamental-rights), and the EU has begun to apply the 'basic law mechanism' with regard to the recent Polish breach with the norm, governance theories remain notably silent when it comes to linking theory and practice of constitutional principles. The proposed paper defines the gap as a 'knowledge gap between constitutional principles and constitutional practice' (Wiener 2015). To that end, it advances a theoretical contribution that elaborates on the connection between norms and practices. It contends that, if intersubjectivity is constitutive for norms practices are key for validating normative claims about legitimacy. Yet, norms are often taken as a structuring rather than an agentic factor. The effect is a tipping of the balance between the perceived 'normalcy' and the 'normativity' of norms to the former. Subsequently, the very normative quality of norms remains to be explored in more detail.



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