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12 - Non-State Law

from Part III - Plurality

Published online by Cambridge University Press:  03 September 2021

Kaarlo Tuori
Affiliation:
University of Helsinki
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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.

Type
Chapter
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Properties of Law
Modern Law and After
, pp. 215 - 238
Publisher: Cambridge University Press
Print publication year: 2021

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  • Non-State Law
  • Kaarlo Tuori, University of Helsinki
  • Book: Properties of Law
  • Online publication: 03 September 2021
  • Chapter DOI: https://doi.org/10.1017/9781108953436.017
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  • Non-State Law
  • Kaarlo Tuori, University of Helsinki
  • Book: Properties of Law
  • Online publication: 03 September 2021
  • Chapter DOI: https://doi.org/10.1017/9781108953436.017
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Non-State Law
  • Kaarlo Tuori, University of Helsinki
  • Book: Properties of Law
  • Online publication: 03 September 2021
  • Chapter DOI: https://doi.org/10.1017/9781108953436.017
Available formats
×