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 2: What is Non-State Law? Mapping the Other Hemisphere of the Legal World

Marc Hertogh

Subjects: politics and public policy, international politics


Marc Hertogh By confining the attention of the investigator to the state, to tribunals, to statutes, and to procedure, this concept of law has condemned the science of law to the poverty under which it has been suffering most terribly down to the present day. Its further development presupposes liberation from these shackles and a study of the legal norm not only in its connection with the state but also in its social connection. (Ehrlich [1936] 2002, p. 164) 1. INTRODUCTION: NON-STATE LAW OR NONSENSE LAW? In recent years, the number of references to ‘non-state law’ has increased dramatically, from less than 1500 in 1985–1995 to well over 15,000 in 1995–2005.1 All these publications, on subjects ranging from customary law and indigenous rights to the rules of the world wide web, struggle with the same fundamental question: What is non-state law? This is not an issue for the faint-hearted. Over the years, it has led to many ‘emotionally loaded debates’ (von Benda-Beckmann 2002, p. 37), it has been at the centre of ‘ideological combat’ (Woodman 1998, p. 21) and it has even sparked the occasional ‘war of faith’ (Teubner 1997, p. 8). For some legal anthropologists and sociologists, non-state law is equally as important as official law. In their opinion, only those lawyers with a similar view should be considered true ‘enlightened jurists’ (Allott and Woodman 1985) and those who hold a different opinion are guilty of promoting an ‘ideology of legal centralism’...

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