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 12: The Influence of Court Judgments on Non-State Law

Hans Peters


12. The influence of court judgments on non-state law Hans Peters 1. INTRODUCTION The central question in this book is how the state legislature should react towards non-state law. What is or should be the influence of non-state law on the legislature? Should the legislature take forms of non-state law into account? Is it wise to participate in legislation on non-state law? Does it give the legislator more authority? Is an association with non-state law convenient for the legislator? Because they are focused on the role of the legislature, these questions suggest that there is a clear difference between non-state law and state law and that it is for the legislator to decide whether a rule can be seen as state law or non-state law. That is only half the truth. Of course, by introducing non-state law into state regulation, the legislature can change non-state law into state law. However, it is mostly a ruling from a court that finally decides whether a rule can be seen as non-state law or state law. The legislature should be aware of that: the borderline between state law and non-state law is thin and relative. In this contribution, I would like to explore the borderline between state law and non-state law and how that line can shift. Therefore it is necessary to define the concepts of state law and non-state law in a legal sense. Earlier in this book, non-state law was defined from the perspective of the...

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