Hard vs. Soft Law: Alternatives, Complements and Antagonists in International Governance

Abstract:     
This article addresses the interaction of hard and soft law in a fragmented international law system. This issue is increasingly important in a world where functional international regimes proliferate to address globalization and national interdependence without any overarching legal hierarchy. The article makes three core claims in contradistinction to the existing literature. The first and primary claim is that international hard and soft law instruments can serve not only as alternatives or complements, but also as antagonists in many situations. The second, related claim is that this interaction has particular implications in a fragmented international law system, affecting the very nature of international hard and soft law regimes and their purported advantages. The interaction of hard and soft law regimes can lead to the hardening of soft law regimes, resulting in more strategic bargaining and reducing their purported advantages of consensus-building through information-sharing and persuasion; and it can lead to the softening of hard law regimes, resulting in reduced legal certainty and predictability, especially where there is distributive conflict between powerful states. The third and final claim is that the interaction of hard and soft law is not a binary either/or question, but one of specifying the conditions under which we can expect actors to employ hard and soft law as alternatives, complements or antagonists. The existing literature is not wrong in focusing on how hard and soft law may be employed as complements, but this literature tells only part of the story. The article provides an overarching theoretical framework for understanding the conditions under which states and other actors choose to employ hard and soft law in different ways, emphasizing the importance of distributive conflict among countries and their constituencies and the rise of regime complexes as conditions favorable to the use of hard and soft law as antagonists.

Keywords: hard and soft law, power and international law, WTO, dispute settlement, prisoners dilemma

JEL Classifications: F02, F10

Accepted Paper Series