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Cardozo Law Review

Abstract

Political and legal theories have long been takingfor granted the idea that law is the province of government and government recognized authorities, including the judiciary. They have concentrated on the processes and principles, by which the form and substance of State law are determined, implemented, and enforced. This law is what I will call official or State law. By contrast, many non-official sites of legal production have always existed and still exist (outside and) inside the West. These sites produce rules that may flourish indifferent to or in opposition to official law and take the settlement of disputes arising out of the application of those rules outside the ordinary circuits of adjudication. Even though the discussions about the relation between the latter rules (especially those developed by merchants) and official law is one of the ancient debates of the law, stretching back centuries, in the last two hundred years the Western positivist attitude has been able to obscure and fence off the multifaceted dimensions of the legal experience from the spotlight of critical investigation. Yet in the last decades, the unofficial dimension of the law has gained new scholarly traction, also from a domestic perspective.

This essay analyzes critically the existing literature to show how State law tends to control relationships and disputes between people that are strangers to each other because, whenever there is a bond tying together a group of people, such a group tends to have their relationships and disputes controlled by different sets of rules. These "different" rules may have diverse origins (customary, religious, professional), but they are daily relied on by dozens of millions of people; they control U.S. markets worth dozens of billions of USD, and they all serve the purpose of regulating activities, for which State law is perceived by the concerned group as unfit (or, at most, as a second best choice) to meet their needs.

The paper unfolds as follows. I will first introduce the debate on the difference between State and non-State law, dwelling on language and cultural attitudes that innervate the debate itself (Sections 2-3). I will then review the literature on field studies showing the multifaceted presence and relevance of non-State law bodies of rules in a series of United States social and economic settings (Section 4). Next, I will critically analyze the arguments usually put forward to explain these departures from State law, highlighting the partiality of many of those arguments and proposing a different intellectual key to approach the issue (Sections 5-7). The final part of the essay (Section 8) will focus on the possible implications of the foregoing data and analysis for our views of the legal world and, in particular, on the impact the plurality of legal dimensions may have on our way of understanding State law and the law itself

Disciplines

Contracts | Estates and Trusts | Law | Legal Profession

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