The Mirage of Non-State Governance

Postulating non-state governance challenges the state’s monopoly on the creation and adjudication of law, but it does not challenge the framework in which we think of governance, or government, as related and linked to the state. Nonstate governance is merely the flipside of a state government. Ironically, such a conception does not weaken the importance of the state for governance, but perpetuates it. It changes the state from a tacit background assumption to the prime criterion with which we differentiate between kinds of governance.

This limits in crucial ways our ability to think creatively about governance. When we talk of non-state governance, we imagine governance that either reproduces the way in which we know law from the state, or provides its counterpart. A governance concept that transcends the distinction between state and non-state laws, by contrast, should enable us truly to imagine governance not only outside the state, but outside even the dichotomy of state/non-state, outside the state framework altogether. Non-state governance may once have been a necessary concept to overcome the idea that all law is state law.

However, as the mere negation of that idea, it lacks constructive potential; its implications collapse into either the negation or the replication of law within the state. We should leave this behind and devote our attention to a governance concept that transcends these boundaries and presents a more credible candidate for globalization and a functionally differentiated global system: governance beyond the state.