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 11: Regulating the Living Will: The Role of Non-State Law at the End of Life

Oliver W. Lembcke


Oliver W. Lembcke 1. INTRODUCTION It is the contribution of legal positivism that state and law are seen as a unit. The representatives of natural law positions achieved their greatest success when the standards for human rights were internationalized; but the legal positivists should not only pride themselves in having concisely summed up the logics of the legal system. They also summed up the legal profession’s self-description in a concise manner. Their point of view governs the dogmatic daily routine of the legal system, at least in states founded on the rule of law. Seen from this perspective, it must come as a ‘culture shock’ when there is an encounter with other political communities where law is not (exclusively) ‘positively’ determined by the state but is formed in a social context in everyday worldly situations from which it draws its effectiveness. It is precisely this ‘other hemisphere of the legal world’, as described in Chapter 2, that legal pluralism refers to (e.g. Griffiths 2002), therefore stirring up a controversy which is still going on today (Woodman 1998) and which is, in a fundamental sense, by no means less intense than the controversy over the relationship between law and morals. Legal pluralism has characteristically gained its insight by dealing with other cultures (e.g. Merry 2003). These anthropological and sociological studies have promoted, among other things, the belief that law cannot be categorically distinguished from other forms of social control. Indeed, the dividing lines are blurred, which is due, in...

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