Hard and Soft Law: What Have We Learned?
Gregory Shaffer
University of Minnesota - Twin Cities - School of Law
Mark A. Pollack
Temple University - Department of Political Science
April 23, 2012
Minnesota Legal Studies Research Paper No. 12-17
Abstract:
Political scientists and legal scholars have increasingly explored the concepts of hard and soft law in international governance. In this paper for a volume on International Law and International Relations, we review and assess this literature, with a focus on the insights generated by interdisciplinary IL/IR scholarship. We first address the key definitional question, noting the substantial disagreements among positivist, rational institutionalist, and constructivist scholars about the definitions and the key features of hard and soft law. Next, we examine the question of hard and soft law as a design choice, asking under what conditions states (or other actors) might opt for hard- or soft-law commitments in international relations. We distinguish between a nearly ubiquitous functionalist approach and a nascent distributive approach distinctive to contemporary IL/IR scholarship. We then examine the question of how hard and soft law interact in an increasingly complex and fragmented international legal landscape. Finally, we examine the sparse but highly suggestive scholarship on the impact of hard and soft law on legal interpretation, compliance, and effectiveness. We conclude by assessing the value-added, lacunae, and blind spots of the IL/IR literature in this area.
Political scientists and legal scholars have increasingly explored the concepts of hard and soft law in international governance. In this paper for a volume on International Law and International Relations, we review and assess this literature, with a focus on the insights generated by interdisciplinary IL/IR scholarship. We first address the key definitional question, noting the substantial disagreements among positivist, rational institutionalist, and constructivist scholars about the definitions and the key features of hard and soft law. Next, we examine the question of hard and soft law as a design choice, asking under what conditions states (or other actors) might opt for hard- or soft-law commitments in international relations. We distinguish between a nearly ubiquitous functionalist approach and a nascent distributive approach distinctive to contemporary IL/IR scholarship. We then examine the question of how hard and soft law interact in an increasingly complex and fragmented international legal landscape. Finally, we examine the sparse but highly suggestive scholarship on the impact of hard and soft law on legal interpretation, compliance, and effectiveness. We conclude by assessing the value-added, lacunae, and blind spots of the IL/IR literature in this area.
Number of Pages in PDF File: 28
Keywords: hard law, soft law, institutional design, fragmentation, complianceFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2044800
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