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Law Without a State?

A “New Interplay" Between State and Nonstate Actors in Governance by Rule Making

Gunnar Folke Schuppert

The aim of this chapter is to contribute to the understanding of “Governance in Areas of Limited Statehood” by discussing these issues in the broader context of new developments in the area of rule making. What can be witnessed here—the decoupling of state and law, the emergence of new modes of governance by rule making in the process of transnationalization—are developments that are of immediate importance for understanding areas of limited statehood. Furthermore, it would improve—at least in the long run—the research on governance in areas of limited statehood if this research would stay in close touch with the broader discussion about changes in governance.

The State and the Territoriality of the Law

The process of the emergence of the modern state—and consensus exists on this point among representatives of the science of history (Schilling 1999) — can be described as a process of the achievement of three monopolies that are characteristic of the modern state.1 These are the monopolies on legitimate violence, taxes, and legislation. Ever since the enforcement of these three key state monopolies, law is mainly state law (Schuppert 2003). It is this close link between law and state that Peter Badura (1971) hints at in the following sentences: “Law is a state legal order whose validity depends on the fulfilment of certain formal criteria which are usually defined in the constitution. . . . The state holds the prerogative of lawmaking within a certain territory. . . . The idea and reality of the modern sovereign state constitute the historical and ideological basis of this statist concept of law"2

The modern state emerged based upon territorial sovereignty (Brunner 1965). State authority therefore is both territorially based and limited (Badura 2006, para. 1). In order to paraphrase once again this inextricable link between the state and the law, which is expressed in the concepts of statehood and the territoriality of the law, I will draw upon the following influential formulations: Michael Mann’s (1994) characterization of political power as territorially centralized regulatory power, and Territory—Authority—Rights, the significant title of Saskia Sassen’s (2006) widely quoted book, which invokes a triad that pinpoints the essence and functional logic of the modern state.

If, therefore, law is state law and territorially limited law, the question arises as to what “happens” with the law in the face of evident and increasing processes of Entstaatlichung3 and the deterritorialization of political rule. Extensive evidence of this is presented in the literature on the change in statehood (see Leibfried and Zurn 2005; Schuppert 2008). This question is particularly relevant to areas of limited statehood that are by definition characterized by the weak role of state and government agencies, and where governments are governance actors among others. Here, the concept of state law lacks much of its plausibility. Instead, one finds a plurality of comple- mentary—and also competing—forms of regulations and norm settings that are only partially state law. If the law falls by the wayside as a result of these processes of Entstaatlichung, then the following questions must be asked. Is national law losing its significance? Will it succeed in assimilating these developments and responding to them through Entstaatlichung and deterritorialization?

It is not possible to answer these questions comprehensively within the scope of this chapter. Thus, I shall limit myself to three fragmentary aspects that demonstrate something about legal or quasi-legal governance services in areas of limited statehood. I will first look at certain manifestations of nonstate self-regulation so as to establish the conditions under which such selfregulation actually functions. Only through understanding the functional logic and effectiveness of such nonstate self-regulation can one draw reasonable conclusions regarding the “opportunities and risks” associated with the Entstaatlichung of law. Second, I will examine in greater detail the meaning of the reference to the emergence of a transnational law and whether this could constitute a credible example of a deterritorialized and denationalized form of law. Third, I will look at sets of regulations that clearly do not constitute classical state law, but—as has been specified in the literature (Hommel- hoff and Schwab 2001)—have been enacted by private standards bodies that replace the state, and that, although not legally binding, display a high level of de facto governance. Having completed this broad survey of the world of nonstate law, I will then be in a position to draw some initial relevant conclusions about areas of limited statehood and, perhaps also, to formulate some preliminary hypotheses.

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