Document Type

Article

Publication Date

2005

Abstract

The common theme of the articles assembled for this issue is a focus on Asian societies and their struggle with the conceptualization of "non-law" and its relation to law. This brief Comment reflects on the construction of the "non-law" as analytical categories in the four contributions. It suggests that the struggle with "non-law" reflects a deeper confusion about the role of law in ordering social relations broadly defined.' Focusing on the "non-law" assumes implicitly that "law" is a useful and well-delineated category for analyzing governance structures within and across states and thus can serve as a benchmark for analyzing "non-law." Closer inspection, however, reveals this assumption is flawed. Governance takes many forms in any society, and law or legislation is only one of them. Moreover, the function and form of formal law has changed in many settings from one of direct social ordering by way of prohibitions, punishments, and the like to one of creating space for cooperation among multiple actors and adaptations in governance structures over time. Further, the level of formal versus informal law in a society and in the governance of certain aspects of social life is fairly irrelevant absent a debate over the substantive goals that governance shall achieve. Put differently, the focus on law versus non-law evades the more challenging task of considering the normative agenda underlying choices among different governance mechanisms and their use in practice.

Disciplines

International Law | Law

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