Lessons to Learn: Rule Making and Rule Enforcement in Areas of Limited Statehood

In closing, I would like to draw some conclusions for governance in areas of limited statehood that provide an outline for a future research program. First, it has clearly emerged that law is not necessarily state law. A large variety of nonstate rule making clearly exists that can be approached in a wide variety of contexts, from the informal customs of Jewish diamond traders in New York to the hierarchically organized international sports law, a variety to be found in areas of functioning statehood. Thus, there is all the more cause to watch for manifestations of nonstate rule setting in which the territorial nation-state is absent as monopolistic legislator—that is, in the transnational arena or areas of limited statehood. In both of these areas, other types of rules and standard setters play the role of the state and thus fill the regulatory gap. This role is fulfilled in the transnational arena by what is known as transnational law. To name the main ones, the corresponding systems of law in areas of limited statehood, which need to be studied in greater detail, include customary law, local law, traditional law, and religion-based law. This medley of systems should be analyzed and systematized.

Second, if one reviews the aforementioned candidates for a form of rule making that replaces or complements state lawmaking, it is of crucial importance not to think in terms of the state-private or public-private pairs of opposites and not to be taken in by this misleading dichotomy. As was seen in the study of the problems of governance in sub-Saharan Africa, the differentiation between state and private and public and private areas in areas of limited statehood is either nonexistent or merely rudimentary. Moreover, a central problem in areas of limited statehood appears to consist of the fact that effective territorial sovereignty only extends to part of the state ter- ritory—e.g., Kabulistan, archipelago states—and thus what is mainly being dealt with here is manifestations of local governance (Risse and Lehmkuhl 2007). If this is the case, and moreover, the key local governance actors are religious or ethnic authorities, it becomes questionable as to whether one can refer here to “governance by the state” or to a boundary line between state and private that, in reality, is almost impossible to locate.

Third, if one reviews the examples addressed in this chapter, it becomes clear that the main research questions for areas of limited statehood involve identifying the institutional infrastructure, in particular in the form of social and religious networks that can be considered as regulatory and reputation communities. Which collectives produce regulatory systems? What qualities do they have? How is their enforcement ensured? In my view, these questions are key ones and cannot be adequately answered in the absence of expertise in the areas of the science of religion and the social anthropology of law.

Finally, it should be clarified how these nonstate regulatory systems behave vis-a-vis the outcomes of state lawmaking. The question that arises here is whether one can refer to a functional division of labor between state and nonstate standard production or instead to the coexistence or overlap of different regulatory systems, as in the case of colonial statehood, or the coexistence of state and local, ethnic and religious sets of rules. It will also be impossible to answer these questions in the absence of a detailed knowledge of the relevant governance area and its historical and cultural context. Thus, a theory of the role of the law in areas of limited statehood can only be one that is empirically well founded.

 
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