112 Handbook on the rule of law

with a gap between formal validation of norms as a subject of legal studies, on the one hand, and cultural generation of
knowledge ns n subject of sociology or cultural studies, on the other.
Against this backdrop, this chapter suggests it is both unnecessary and unhelpful to shift from political science, (or
for that matter) legal studies, to cultural studies altogether in order to address the gap between formal validation and
everyday meanings in international relations. Instead, I propose a framework that is able to account for everyday
practices when implementing norms. Considering the under-researched impact of the cultural dimension, and
following the recognition theorists' analysis of the interplay between regulatory and cultural practices, I will argue that
cultural practices are not merely effective with regards norm implementation (addressed by vertical top-down or
horizontal policy strategics), but they also have an effect on the meaning of a norm (addressed vertically bottom-up, as
well as horizontally through political struggle). To understand how this effect works out, we need to better understand
how cultural practices impact norm implementation and norm change (compare Table 7.2 below).
Two questions guide the argument which this chapter develops in some detail over the following three sections. The
first is about situating norm clashes in specific sites (empirical location): where and when do norms clash? And the
second question is about linking validity claims with particular interpretations (normative assessment): who has access to
norm validation and to what degree? Regarding the first question, three conditions for enhanced norm contestation have
been identified, namely, contingency, variability of social practices, and crisis. 1 While a long-standing topic of the
contestation approach,2 the effect of cultural diversity on norm validation remains under-researched in IR Theory. James
Tully’s focus on two constitutional practices - one regulatory, the other customary - therefore provides a welcome focus
for examining the conditions for norm recognition based on enhanced access to contestation for all stakeholders
(‘citizens’) that are affected by the norms of governance. Accordingly, and regarding the second question, this chapter
proposes defining contestation as critical engagement with norms ‘all the way up’, to overcome the objection to identifying
norms based on recognition, rather than robustness. This bifocal (empirical and normative) approach is advanced by the
cycle-grid model, which links three, rather than two, practices of norm validation: formal, habitual, and cultural validation
(compare Figure 7.1 below). Agents in inter-national relations who struggle with norms, establishing agency depends on
access to all three practices of validation. This argument is developed and its application illustrated in three further
sections: Section one presents the argument; section two introduces the cycle-grid model based norms research in IR
Theory; section three turns to illustrative scenarios where the rule of law stands contested in post-conflict and post-
enlargement societal contexts. The chapter concludes with an outlook for examining the development and impact of the
rule of law, in particular, and norms research in IR, more generally.

1 Wiener, Antje 2008. The Invisible Constitution of Politics: Contested Norms and International Encounters, Cambridge:
Cambridge University Press. P.64 (Table 1).
2 TuJJy, James 1995. Strange multiplicity, Ch. I.
 The rule of law in inter-national relations 113
j, ARGUMENT: ACCESS TO CONTESTATION
The rule of law 1 2 contested universal validity claims were forged in the social and cultural context of the
global West and established by global treaty regimes and international organisations. At the same time,
contestation has produced particular nationally or locally devised meanings. The global set of meanings range
from its general acceptance through the international law of treaties fas defined by the Vienna Convention and
UN legal documents) to the stipulation of the rule of law fas defined by UN member states' respective
constitutions). Considering the documented international con sen JUS at the level of heads of state and
governments, in legal documents the rule of law qualifies as a meta-norm as far as acceptance of the rule of law
implies the shared respect of peremptory norms of international law (i.e.,Jiu cogeru). Yet despite declarations
all the way down from the global to the national levels of governance, it is not only China as a powerful member
of the BRICS group that prefers the rule by law over respecting the rule of law.71 Even states that are firmly
anchored within the historical trajectories of the global West and that share memberships of various international
organisations, do not reveal converging interpretations of global norms, as for example the respective British and
German respective understandings of the rule of law reveal. For example, when asked about their preference
about how to approach the pending massive enlargement of the European Union m the early 2000s, the majority
of British interviewees for an earlier research project, insisted on ‘fairness’ (towards candidate states), ‘value-
export’ (as the central EU role) and ‘stability' (regarding the EU’s future); by contrast, German interviewees
stressed the importance of ‘compliance’, ‘inclusion’ and ‘finality’ regarding the same questions. 29 As the ‘ground
rules’ that define how to implement the rule of law stand to be negotiated, the key questions are where and how
this needs to be accomplished in order to warrant more access for affected stakeholders. The extant norms
literature offers two distinct angles on how to address this.
It can be summarised by two juxtapositions: first, diffusion vs. contestation and second, robustness vs.
recognition. The following section elaborates on this observation.

Diffusion vs. Contestation

universal validity claims of norms which have originally been agreed by heads of state id government
representatives at the treaty-making stage (i.e., applying the practice of formal validation) are diffused to
particular contexts of norm implementation, their contingent meaning gains in importance The result is a
growing diversity of context dependent meaning. Accordingly, the ‘normative structure of meaning-in-use’
in which a norm is embedded and re-enacted by interacting agents, differs according to the degree of fit
encountered in distinct local contexts. It follows that the universal validity claims of a norm, including the meta-norm
of the rule of law, lose clout and meaning through inter-national travel. 30 This process is reflected in the Janus-faced
progress of

Jl

1Tamanaha. 2004. Ch. 3.

9
Wiener. 2008. 148 (Table 6.8). .„ . .. . _
2 Puetter, Uwe and Antje Wiener 2009. ‘The Quality of Norms is What Actors Make of It: Critical
Constructivist Research on Norms’, Journal of International Law and International Relations 5(1) pp. 1-16.