State Regulation and Non-state Law
Edited by Hanneke van Schooten and Jonathan Verschuuren
Chapter 4: The Point of Law: The Interdependent Functionality of State and Non-State Regulation
4. The point of law: the interdependent functionality of state and non-state regulation Sanne Taekema 1. INTRODUCTION The relation between non-state law and state legislatures can be fruitfully understood in the context of alternatives to legislation. The search for alternatives to legislation is not a merely academic exercise; it is pursued because of the perceived defects of traditional legislation. Other governmental regulatory instruments, privatization and deregulation are among the options considered in order to make law work better. In this chapter, I will focus on the basic claim that underlies such discussions, namely that law should be assessed according to its success in performing key functions in society. More speciﬁcally, I will take a comparative perspective on the functionality of state and non-state regulation. Following general results of socio-legal research that show the limited inﬂuence of oﬃcial law on people’s behaviour, the questions I wish to pursue here are the following. To what extent, and in which respects, is state law needed to fulﬁl important functions, claimed to be legal, in society? And to what extent, and in virtue of which characteristics, can non-state regulation fulﬁl these functions? In what way do state and non-state regulation interact in the performance of these functions? With regard to this interaction, I will investigate what the remaining function of state legislation is when compared with forms of non-state regulation. Underlying this project is an interest in the question of the scope of the concept of law; more speci...
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