Soft and Hard Law

Soft and Hard Law

Introduction

The purpose of this study is to scrutinize the extent to which the distinction and meaningful difference between "hard law" and "soft law" has been eroded. An extended aim of this study is to assess the impact of this erosion on International law. International Law, also called the "law of nations", is the branch of law that governs the life of the international community. It can be defined as the right of the commonwealth of States. There has been an abundant amount of scholarly work regarding the analysis of the differences between “hard” and “soft” law in international governance. International legal agreement comprises of various instruments of law such as soft law and hard law. A number of literatures are attributed to the assessment of relative functional characteristics and deficiencies of hard and soft law instruments as alternatives for international governance. It also analyses how the combined effect of these instruments can result in greater international cooperation. This study, in contrast, illustrates the impact of the differences between "hard law" and "soft law" on International law.

Discussion

Soft Law vs. Hard Law

Although law is often thought of as binding on those to whom it applies, and sanctions are associated with breaking the law; some legal rules are voluntary and not coercive. Particularly in international law, legal rules are not legally binding, and legal sanctions cannot be used in cases of noncompliance.

Soft law refers to those legal rules that are not legally binding and for which legal sanctions cannot be used in cases of noncompliance. These rules can be guidelines, codes of conducts, standards, and other voluntary rules. Soft law can be created by governments, international organizations, nongovernmental organizations, and the business community. Soft law is contrasted with the traditional tools of standardization and regulations. They are issued in accordance with certain procedures by persons who have the authority i.e. parliaments, governments, etc. In the absence of direct binding force, ensuring compliance with the rules of soft law rests on the fact that those who adopted them coincides with the recipient (self) or on the authority. The concept of soft law is rather vague, reflecting a diverse range of regulatory phenomena: the self-regulatory codes adopted by individual companies, the codes of conduct adopted by professional associations etc. The concept was founded in international law, as an alternative instrument to the international treaty. The agreements of this kind do not create legal obligations between the contracting parties, but only create political commitments, compliance with which is left to the will of the parties.

On the other hand, hard law includes treaties and elements of customary law. Making hard law is the prerogative of legislative assemblies and national parliaments. It should be noted that the distinction between hard and soft law is hard to make in practice. Legally binding law often contains references to standards and other non-legally binding rules, and soft-law rules often contain references to legally binding legislative rules. The two types of rules are therefore ideal types that ...