Jean Monnet Center at NYU School of Law




Author: Antje Wiener

Title: Towards a Transnational Nomos - The Role of Institutions in the Process of Constitutionalization


Constitutional law - nomos - entails two sets of social practices, including on the one hand, the agreement about principles, norms and procedures which guide and regulate politics, and, day-to-day interaction in the social, cultural, political, economic contexts of a community, on the other. Both constitute an expression of the universally derived yet particularly established set of institutions of a constitution. This paper argues that once constitutional norms are dealt with outside their sociocultural context of origin, a potentially conflictive situation emerges. The potential for conflict caused by this process lies in the decoupling of the two sets of social practices, i.e. the customary and the organizational. Through the transfer between contexts the meaning of norms becomes contested as differently socialized actors apply them and scholars of different legal tradition analyze them. The analytical challenge is to provide a methodological link between these practices. To that end, the chapter focuses on approaches to institutions. It proceeds in three steps. First three general political science approaches to institutions are distinguished. In a second step institutional analysis in the process of European integration is summarized based on three phases; first, integration through supranational institution-building, second, Europeanization through domestic institutional adaptation and third, late politicization as the complex process of sociocultural and legal institutional adaptation in vertical and horizontal dimension. The third step critically discusses the impact of institutions on political behavior. Two cases, citizenship and the finality debate, briefly illustrate the role of soft institutions in the process of constitutionalization.

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