State Regulation and Non-state Law
Edited by Hanneke van Schooten and Jonathan Verschuuren
Chapter 5: Can There be Law Without the State? The Ehrlich–Kelsen Debate Revisited in a Globalizing Setting
Bart van Klink 1. GLOBAL BUKOWINA VS BRAVE NEW WORLD In his provocative essay ‘Global Bukowina: Legal Pluralism in the World Society’, Gunther Teubner (1996) returns to what he considers to be one of the ﬁrst heralds of legal pluralism: Eugen Ehrlich (1862–1922). According to Teubner (1996, p. 3), Ehrlich’s vision of ‘Global Bukowina’ consisted of a civil society globalizing its legal orders and thereby distancing itself from ‘the political power complex in the Brave New World’s Vienna’. In prophetic terms Teubner (1996, p. 3) announces: ‘Although Eugen Ehrlich’s theory turned out to be wrong for the national law of Austria, I believe that it will turn out to be right, both empirically and normatively, for the newly emerging global law.’ Empirically, Ehrlich is deemed to be right because ‘the political–military–moral complex’ – formerly known as the state, I suppose – will increasingly lose ‘the power to control the multiple centrifugal tendencies of a civil world society’. Normatively, Ehrlich is claimed to be right because his theory, by relocating rule-making activities to local contexts, complies with the ideal of democracy. However, Teubner (1996, p. 7) distances himself from (what he sees as) Ehrlich’s ‘romanticizing’ of ‘the law-creating role of customs, habits and practices in small-scale rural communities’. The concept of ‘living law’ will in the current globalization process still have signiﬁcance, albeit a ‘diﬀerent and quite dramatic’ one which is based on ‘cold technical processes’ instead of ‘warm communal bonds’. Although I am not sure whether Ehrlich’s...