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Friday, May 17, 2013

Non-State Law and Enforcement

As I mentioned in my last post, I've been doing some thinking about what it means to be non-state law and looking to different types of non-state law - such as international law or religious law - to consider some common dynamics that consistently arise.  

One theme that regularly emerges - and is often discussed - in the context of non-state law is the problem of enforcement.  Put simply, without the enforcement power of a nation-state, non-state law must typically find alternative mechanisms in order to ensure compliance with its rules and norms.  This hurdle has long figured into debates over whether one can properly conceptualize international law as law.

But the focus on enforcement is problematic for a couple of reasons.  First of all, the challenge of enforcement for non-state law is in many ways overstated.  For example, in a 2011 article titled Outcasting: in Domestic and International Law, Oona Hathaway and Scott Shapiro explored this issue, emphasizing - especially in the context of international - how certain forms of nonviolent sanctions, such as denying the disobedient the benefits of social cooperation and membership, can be deployed as a form of non-state law enforcement.  Indeed, the use of outcasting has long been prominent in other areas of non-state law, such as a method to enforce religious law within religious communities.  

There's, of course, much more to be said on the relationship between non-state law and enforcement (something I may explore in a subsequent post).  But too heavy an emphasis on this piece of the non-state law puzzle is problematic for a second reason - it too often obscures other important ways in which non-state law functions as law.  In my next couple of posts what I'd like to do is consider other ways in which various forms of non-state law function as law by focusing more directly on the internal practice of law within the relevant communities.

Posted by Michael Helfand on May 17, 2013 at 04:46 PM in International Law, Legal Theory, Religion | Permalink

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Comments

Sure you're onto this, which is too obvious, but: you should definitely check out Goldsmith and Levinson on Law for States.

Posted by: Anon | May 18, 2013 9:21:31 PM

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