Volume 50 (2013)

Volume 50 (2013) / Issue 6

Floris de Witte, 'Sex, drugs & EU law: The recognition of moral and ethical diversity in EU law' (2013) 50 Common Market Law Review, Issue 6, pp. 1545–1578

Abstract

This contribution traces the interaction between EU law and national norms that express a certain moral, ethical or cultural value. Such values, which might range from drugs policy to the patentability of human cells, and from the consumption of seal meat to abortion, have something important in common: they ascribe a normative quality to a particular type of life, and typically reflect a communal, political understanding of what is "good". Such norms sit uneasily with the ethos of EU law, in so far that the individual rights guaranteed at the European level serve exactly to limit the externalities of this contractarian conception of political self-determination. This contribution traces these different arguments, their interaction, and the three possible scenarios for their resolution or mediation through the Court's case law: (i) direct normative intervention and Europeanization of the contentious moral or ethical choice; (ii) the insulation of national autonomy; or (iii)balancing through either a substantive or procedural version of the principle of proportionality.

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ISSN: 0165-0750
ID: COLA2013159