State Regulation and Non-state Law
Edited by Hanneke van Schooten and Jonathan Verschuuren
Chapter 2: What is Non-State Law? Mapping the Other Hemisphere of the Legal World
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  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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