International Governance and Law

International Governance and Law

State Regulation and Non-state Law

Edited by Hanneke van Schooten and Jonathan Verschuuren

Around the world, the role of national regulation is often hotly debated. This book takes as its starting point the fact that legislatures and regulators are criticized for overregulation and for producing poor-quality regulation which ignores input from citizens and stifles private initiative. This situation has enhanced the role of non-state law, in forms such as self-regulation and soft law. In this book, international scholars in various fields of law, as well as socio-legal studies, address the question to what extent non-state law currently influences state regulation, and what the consequences of non-state law are likely to be for state regulation.

Chapter 1: Introduction

Jonathan Verschuuren

Subjects: politics and public policy, international politics

Extract

Jonathan Verschuuren In most western societies, the role of the legislature was originally based upon the principle of the separation of powers, as ‘developed’ by Montesquieu in his De l’esprit des lois (Montesquieu [1748] 1979), and upon the principle of the rule of law. Elected representatives in parliament adopt the law, the executive applies the law and is limited in its powers by the law, and courts test the executive’s decisions against the law and thus interpret the law. In modern states, the principle of the separation of powers does not fully apply. In particular the role of the executive in the law-making process has changed. As indicated by Türk, modern governments have broad legislative competence, leading to a decrease in the role of parliaments in the adoption of legislation. Modern bureaucratic administrations are better suited to generate the necessary laws, especially in times when state intervention covers many fields (Türk 2006, p. 8). The theoretical responsibility of the state for everything has resulted in the practical presence of the state in every aspect of life, thus causing a flood of laws (Karpen 1996, p. 55). Today, this is generally seen as one of the major weaknesses of the legislature. There are too many laws, sometimes they contradict each other, or they are inaccessible. In general, legislatures are criticized for the phenomenon of ‘overregulation’ and for producing poor-quality legislation which ignores input from citizens and stifles private initiative. Already since the late 1980s, many countries have adopted...