Peters, Hans --- "The Influence of Court Judgments on Non-State Law" [2008] ELECD 314; 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 12

Section Title: The Influence of Court Judgments on Non-State Law

Author(s): Peters, Hans

Number of pages: 12

Extract:

12. The influence of court judgments
on non-state law
Hans Peters

1. INTRODUCTION

The central question in this book is how the state legislature should react
towards non-state law. What is or should be the influence of non-state law
on the legislature? Should the legislature take forms of non-state law into
account? Is it wise to participate in legislation on non-state law? Does it give
the legislator more authority? Is an association with non-state law conve-
nient for the legislator?
Because they are focused on the role of the legislature, these questions
suggest that there is a clear difference between non-state law and state law
and that it is for the legislator to decide whether a rule can be seen as state
law or non-state law. That is only half the truth. Of course, by introducing
non-state law into state regulation, the legislature can change non-state law
into state law. However, it is mostly a ruling from a court that finally decides
whether a rule can be seen as non-state law or state law. The legislature
should be aware of that: the borderline between state law and non-state law
is thin and relative. In this contribution, I would like to explore the bor-
derline between state law and non-state law and how that line can shift.
Therefore it is necessary to define the concepts of state law and non-state
law in a legal sense.
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