Klink, Bart van --- "Can There be Law Without the State? The Ehrlich–Kelsen Debate Revisited in a Globalizing Setting" [2008] ELECD 307; in van Schooten, Hanneke; Verschuuren, Jonathan (eds), "International Governance and Law" (Edward Elgar Publishing, 2008)

Book Title: International Governance and Law

Editor(s): van Schooten, Hanneke; Verschuuren, Jonathan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847207272

Section: Chapter 5

Section Title: Can There be Law Without the State? The Ehrlich–Kelsen Debate Revisited in a Globalizing Setting

Author(s): Klink, Bart van

Number of pages: 20

Extract:

5. Can there be law without the state?
The Ehrlich­Kelsen debate revisited
in a globalizing setting
Bart van Klink

1. GLOBAL BUKOWINA VS BRAVE NEW WORLD

In his provocative essay `Global Bukowina: Legal Pluralism in the World
Society', Gunther Teubner (1996) returns to what he considers to be one of
the first heralds of legal pluralism: Eugen Ehrlich (1862­1922). According
to Teubner (1996, p. 3), Ehrlich's vision of `Global Bukowina' consisted of a
civil society globalizing its legal orders and thereby distancing itself from
`the political power complex in the Brave New World's Vienna'. In prophetic
terms Teubner (1996, p. 3) announces: `Although Eugen Ehrlich's theory
turned out to be wrong for the national law of Austria, I believe that it will
turn out to be right, both empirically and normatively, for the newly emerg-
ing global law.' Empirically, Ehrlich is deemed to be right because `the polit-
ical­military­moral complex' ­ formerly known as the state, I suppose ­ will
increasingly lose `the power to control the multiple centrifugal tendencies of
a civil world society'. Normatively, Ehrlich is claimed to be right because his
theory, by relocating rule-making activities to local contexts, complies with
the ideal of democracy. However, Teubner (1996, p. 7) distances himself
from (what he sees as) Ehrlich's `romanticizing' of `the law-creating role
of customs, habits and practices in small-scale rural communities'. The
concept of `living law' will in the current globalization process still have
significance, albeit a ` ...