12 - Non-State Law

Summary

Merely sixty years have elapsed since Kelsen published the second edition of Reine Rechtslehre and Hart The Concept of Law. For the Masters of Legal Positivism, the self-evident premise was that all law is state law, either intra- or interstate. Non-state law entered their field of vision primarily as an imaginary primitive normative regime which constituted both a contrast to a developed legal system and a starting point for legal evolution, ending up with fully fledged state law. Whether they considered the primitive regime as law or not remains unclear. During the decades separating us from publication of the chefs d’oeuvre of Legal Positivism, the monopoly of state law has been threatened by the rise of what has come to be called non-state law. Usually, a distinction is drawn between non-state law above and below the state. In this distinction, transnational law represents non-state law above, with indigenous and religious law below the state. Yet the distinction may be misleading: transnational law displays a local and the law of world religions a transnational dimension. In most cases, transnational legal regimes are genuinely new formations, whose background consists in the social mega-trend dubbed globalisation or, to use a less pretentious expression, denationalisation. By contrast, indigenous or religious normative regimes are no recent newcomers but predate modern state law. What is new is recognition, though haltingly, of their legal relevance by state law.