Guzman, Andrew T.; Meyer, Timothy --- "Soft law" [2016] ELECD 1026; in Kontorovich, Eugene; Parisi, Francesco (eds), "Economic Analysis of International Law" (Edward Elgar Publishing, 2016) 123

Book Title: Economic Analysis of International Law

Editor(s): Kontorovich, Eugene; Parisi, Francesco

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857930156

Section: Chapter 5

Section Title: Soft law

Author(s): Guzman, Andrew T.; Meyer, Timothy

Number of pages: 32

Abstract/Description:

The topic of international soft law has long confounded both legal scholars and political scientists. Although the term soft law has been in the legal lexicon since at least the 1970s, there is still no consensus on its meaning or its role in the international legal system. In an attempt to summarize existing views on the subject, we identify three different approaches to situating soft law within the international legal landscape. One group of scholars, the traditional legal positivists, tends to dismiss soft law. They do so not because they think the norms at issue are irrelevant, but because they consider these norms to be beyond the scope of what should concern legal scholars. Prosper Weil, for example, once argued that the kinds of obligations that flow from soft law are indeterminate because they ‘are neither soft law nor hard law: they are simply not law at all’. In a similar manner Jans Klabbers argued that soft law is fundamentally incoherent as a theoretical construct and is, at best, a superfluous addendum to the binary conception of law and legality. Jean d’Aspremont has gone so far as to contend that maintaining the binary distinction between law and non-law is necessary for the international legal system to maintain its ability to regulate state behavior. Oscar Schacter is somewhat more tolerant of soft law, but views it as a clear second best relative to hard law.