Soft Law, generally
“My point is that this distinction between enforceable “hard” law and unenforceable, but normatively significant, “soft” law is not limited to international law questions and thus helps us understand how powerful concepts like sustainable development grow in relevance to domestic law practitioners.”
J. B. Ruhl, “The Seven Degrees of Relevance: Why Should Real-World Environmental Attorneys Care Now About Sustainable Development Policy?”
Soft law is a term used to describe a quasi-legal function. Soft law can be found in documents, statements, guidelines, codes of conduct, principles, action plans, declarations, resolutions, and codes of ethics traditionally found in the international arena, although it is surfacing in domestic instances as well. The terminology evolved because of the particular function it served. Essentially providing a framework of guidelines and expectations, soft law lacks the “teeth” that real law, or “hard law,” can have. Soft law has the potential of becoming “hard law” and morphing into a treaty, contract, or rule of law.
Societal norms and expectations play a large role in law. In common law systems, many laws are self-perpetuating. A law is placed into existence and is then reinforced by interpretations of existing factual circumstances, which also reinforce the norms. If an individual varies from the norms and disobeys the law, the injured party can bring enforcement of these norms through a regulatory agency or a court of law. Soft law, on the other hand, is a set of expectations and norms with neither a formalized framework nor a threat of enforcement.
Therefore, soft law has become important in the fields of international environmental law, international economics law, and international sustainable development law, where consideration of varying approaches to balancing environmental initiatives with socioeconomic factors in divergent cultures and governments is critical to the formulation and promulgation of initiatives.
Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment and Social Governance, by John J. Kirton and Michael J. Trebilcock is a collection of essays on how soft law works in international politics. The book’s 18 essays cover a range of topics, some of which include: setting standards for sustainable forestry, corporate conduct codes and labor regulation in developing countries, trade policy and labor standards, the role of nongovernmental organizations and social movements in developing countries, and integrating environment and labor into the World Trade Organization.
Environmental law has been affected by the use of soft law, especially in the European Union. In the article, “Soft Law, Self-Regulation and Co-Regulation in European Law: Where Do They Meet?,” Linda Senden notes that the European Union has embraced a model of “do less in order to do better,” whereby deregulation, simplification, and voluntary agreements are utilized. The EU is attempting to achieve harmony by trying to be flexible and diverse and not necessarily uniform, but merely coordinating national policies. In the EU context, variations of soft law aid in the development of self-regulation and co-regulation. A communication may be written from the government instructing all parties in voluntary environmental agreements that the objectives of a particular treaty must be met. In some cases, voluntary self-regulation has ensued, as when a group of interested parties has reached voluntary agreement on some topic and informed a governmental authority, which then performs the non-binding act of sending a recommendation.
- Senden, Linda. “SOFT LAW, SELF-REGULATION AND CO-REGULATION IN EUROPEAN LAW: Where Do They Meet?” Electronic Journal of Comparative Law, vol. 9.1 (January 2005). http://www.ejcl.org
- Gralf-Peter Calliess & Mortiz Renner; “From Soft Law to Hard Core: The Juridification of Global Governance.” This paper is based on a presentation given at the workshop “Law after Luhmann: Critical Reflections on Niklas Luhmann’s Contribution to Legal Doctrine and Theory” in Oñati (Spain), July 5-6, 2007.
- Hillgenberg, Hartmut. “A Fresh Look at Soft Law.” EJIL (1999), Vol. 10 No. 3, 499-515
- Shelton, Dinah L. “Soft Law.” The George Washington University Law School Public Law and Legal Theory Working Paper No. 322. http://ssrn.com/abstract=1003387
- John J. Kirton and Michael J. Trebilcock(editors) Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment and Social Governance
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