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Friday, May 31, 2013

Non-State Law Beyond Enforcement II

With grading finally behind me, I wanted to post again about non-state law "beyond enforcement."   The question I've been exploring is in what ways do various forms of non-state law (such as international law and religious law) function as law even when these forms of law lack the ability to enforce their legal rules?

In my last post, I mentioned a forthcoming book by Chaim Saiman, which conceptualizes Jewish Law as "studied law" as opposed to enforced law.  In making this point, Saiman highlights some Jewish legal doctrines that the Talmud explicitly notes are not meant to be applied in the public square, but simply dissected in the study hall.  In this way, Saiman disaggregates the very concept of Jewish law from the enforcement of Jewish law.

Now there is a tendency to think that religious law - as opposed to other forms of non-state law - is particularly susceptible to manifesting law-like characteristics outside the context of enforcement.  Religious law, at its core, is intended to connect individuals to something outside of this world and so it is not surprising that certain facets of religious law might be directed not to practical this-world enforcement, but to achieving some other-worldly religious value.      

While I think this sentiment is true, over-emphasizing the point would lead us to miss the ways in which other forms of non-state law exhibit law-like features even in the absence of enforcement.  At the symposium I ran a few weeks back on "The Rise of Non-State Law," Harlan Cohen (Georgia) presented a great paper titled ""Precedent, Audience and Authority."  The paper wrangled with the following question: why is it that, even though international law denies international precedent any doctrinal force, precedent is cited constantly as authority in any number of international law fields?

To answer the question, Cohen emphasizes the way in which law - and in particular international law - is a practice with its own (often unspoken) interpretive rules and norms.  On this account, Cohen focuses on how precedent speaks to the members of the international law community - the ways in which using precedent generates legitimacy for international law in the eyes of those within the international law community.  

One of the striking features of Cohen's analysis - at least striking to me - is the persistence of precedent in the eyes of consumers of law even absent an actual doctrinal basis.  It is almost as if, at least in certain legal communities, that law struggles to separate itself from an interpretive method that discounts precedent.  All of this struck me as a bit Dworkinian, capturing another important way in which non-state law can function as law outside the context of enforcement.  Put differently, certain legal systems can be identified as being systems of law not simply based upon the extent to which the law is enforced, but based upon certain methods of interpretation endemic to law.  

In this way, Cohen's notion of international law as a practice parallels Saiman's formulation of Jewish law as studied law.  In both instances, we find important ways in which non-state law functions internally as law based upon the way in which the law is interpreted and analyzed.  On this account, non-state law can function as law irrespective of whether it is enforced.  

Posted by Michael Helfand on May 31, 2013 at 02:34 PM in International Law, Legal Theory, Religion | Permalink

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