Introduction
The first year curriculum in the United States focuses on domestic private law (property, torts, contracts), civil procedure, and constitutional law, with the possibility of a course on legislation and regulation or an elective outside the core common law subjects. International law is rarely studied in the first year. So, many first-year law students may complete the year without having heard of "soft law," which implicitly is defined as contrasting with "hard law." Here is a representative definition that assumes the international law context:
By “soft law” I am referring to quasi-legal instruments that have no legal force, such as non-binding resolutions, declarations, and guidelines created by governments and private organizations. (Druzin, 2017)
The idea of soft law can easily be extended to domestic contexts. This entry in the Legal Theory Lexicon provides an introduction to the idea of soft law aimed at law students, especially first-year law students with an interest in legal theory.
Hard Law
The notion of "soft law" is implicitly defined by contrast with "hard law." Hard law is binding and enforceable. In the international contrast, treaty obligations and the binding enactment of international organizations created by treaties would be hard law. In the domestic sphere, hard law is the system of binding legal norms, including criminal law, tort law, constitutional law, and so forth.
What makes "hard" law hard? That is a deep question that connects with disputes about the nature of law: explored in Legal Theory Lexicon 065: The Nature of Law. One possible answer is that a hard law must be properly enacted or recognized by the relevant rule of recognition (a social rule that specifies what counts as a law and what does not) and be properly connected to some form of state-imposed sanction or reward. There are deep waters here, but we will work with that definition for the remainder of this Lexicon entry.
Soft Law
If hard law is properly enacted and backed by sanctions or rewards, then what is soft law? "Soft law" must share something with "law": at a minimum soft law must contain a norm the content of which has the action guiding function of hard law. And soft laws also appear to be things that are enacted or promulgated in some way. Thus, it common to include in the category of "soft law" things like "non-binding resolutions, declarations, and guidelines created by governments and private organizations." (Druzin, 2017) In other words, soft-laws are things with content that would be hard law if it had been enacted by a process that would have conferred legal status and if it had included some sanction or reward.
This definition of "soft law" is incomplete. If I right a set of guidelines for fossil fuel companies, it does not become "soft law." Implicitly, the category is limited to norms (rules, standards, or other kinds of norms) that are effective. Guidelines that achieve some threshold level of compliance may properly characterized be as "soft law," but guidelines that are have not effect on behavior are not. A full and complete definition would also need to differentiate the category of "soft law" from related notions such as "custom" or "social norms," but at this point, we will bracket these additional questions.
Soft Law in International Law
The term "soft law" seems to have originated in the field of international law and it is applied to resolutions of the United Nations General Assembly and the action plans or recommendations generated by the various organs of the United Nations and other international organizations.
Why is soft law created? And why does soft law sometimes succeed in changing behavior? These are big questions, but here are some ideas for starting to think about answers. Soft law may be created because it is not feasible to create hard law. This might happen in the course of treaty negotiations: if a hard law treaty is impossible, the negotiating parties might turn to soft law as a less than ideal option that is "better than nothing."
Even if soft law is not backed by sanctions or rewards, it might nonetheless affect behavior. Soft law might act like informal social norms and create social pressures for compliance. Violations of soft law may be criticized and result in various soft pressures, such as refusals to cooperate with the violators of soft law norms.
Another mechanism for cooperation may involve what are called "networking effects." Soft law may provide a mechanism for the coordination of behavior. If the benefits of coordination depend on the number of cooperators, the soft law norm may be adopted voluntarily. Here is an example from international shipping:
Soft-law documents such as BIMCO bills of lading, standard-form charter-parties, and the York-Antwerp Rules 2004 on General Average have self-standardized as de facto industry standards. This process of self-standardization may occur with respect to instruments at all levels of interaction. The soft-law document need only provide a focal point for actors within a network seeking to co-ordinate. International bill of lading and charter-party forms, couched in universal terms and practices widespread throughout the shipping world, do not require any formal legal codification precisely because—and this is a crucial point—they are already robustly supported by network-effect pressures. (Druzin, 2017)
Conclusion
There are many more questions that could be asked about the idea of soft law. Does it make sense to use the word "law" when we refer to "soft law"? Or is the terminology misleading? What are the costs and benefits of soft law approaches as compared to hard law? I hope this Legal Theory Lexicon entry has provided you with the tools to understand and recognize the concept of soft law.
Bibliography
- Chris Brummer, Soft Law and the Global Financial System: Rule Making in the 21st Century (2d ed. 2015).
- Bryan H. Druzin, Why does Soft Law Have any Power Anyway?, 7 Asian Journal of International Law, 361–378 ((2017).
- Gregory C. Shaffer and Mark A. Pollack, Hard vs. Soft Law: Alternatives, Complements, and Antagonists in
International Governance, 94 Minnesota Law Review 706 (2010).
Related Lexicon Entries
- Legal Theory Lexicon 026: Rules, Standards, Principles, Catalogs, and Discretion
- Legal Theory Lexicon 038: The Internal Point of View
- Legal Theory Lexicon 065: The Nature of Law,
(Last revised on September 24, 2022.)
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