Governance Meets Law: Mapping the Elusive Concept of Non-State Law

Many discussions aimed at exploring the relationship between law and governance also refer to non-state decision- and policy making and examples of non-state law. In recent years, the number of references to ‘non-state law’ has increased dramatically. Most of these publications, however, 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? Because most of this literature has a strong normative focus, important conceptual and empirical questions are left unanswered. This paper is an attempt to fill this gap. It is not a critique of the previous work by lawyers, social scientists and legal theorists. Neither does this paper set out its own theory of non-state law. Instead, its goal is more modest: to review the socio-legal literature on non-state law and to draw a tentative conceptual map of this ‘other hemisphere of the legal world’ (and its relation to issues of law and governance). The first half of this paper discusses three waves of attention for non-state law in the socio-legal literature: ‘colonialism’, ‘legal pluralism at home’ and ‘globalization’. In the second half, this literature is used to draw a conceptual map of non-state law. One dimension of this map differentiates between non-state law within and without the national state. The other dimension differentiates between non-state law as rules of conduct and as norms for decision. In this way, our map locates four different types of non-state law. Writing in the early twentieth century, Eugen Ehrlich argued that the legal scholars of his day seriously impoverished the science of law because they confined their attention to the national state. Today, in the rapidly changing ‘Global Bukowina’ of the twenty-first century, Ehrlich’s plea for a decoupling of law from the state has still lost little of its relevance and a ‘liberation from these shackles’ seems more appropriate than ever.

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