International Governance and Law
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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.
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Chapter 4: The Point of Law: The Interdependent Functionality of State and Non-State Regulation

Sanne Taekema


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 specifically, the extent to which regulation by nonstate actors deserves to be included...

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