Why Do We Obey Soft Law?
REDISCOVERING PUBLIC LAW AND PUBLIC ADMINISTRATION IN COMPARATIVE POLICY ANALYSIS: A TRIBUTE TO PETER KNOEPFEL, Stéphane Nahrath, Frédéric Varone, eds., pp. 45-62, 2009
10 Pages Posted: 30 Mar 2010
Date Written: 2009
“What explains this singular habit of respecting laws, which only a few ‘abnormal’ people obey only when compelled to do so?” Can this habit be explained by coercive sanctions? The fear they instil, or the threats they represent? The guilt and shame they evoke? In short, do we respect laws because of the emotions they stir within us?
This is certainly part of the answer, though not the entire answer. The authority of law stems not from coercion alone. Explanations vary depending on the point of view: neuroscientists cite the activation of cerebral zones specific to compliance with norms, psychologists the emotions, sociologists social norms, ethicists the sense of values, theologians morality, economists efficiency, psychiatrists the superego, and so on.
If compliance with hard law is not easy to explain, compliance with soft law is even more complex. It is astonishing -to a legal mind at least- that certain non-binding instruments, such as recommendations, declarations, information and persuasion activities, gentlemen’s agreements, charters and other incentive instruments, compel respect. The rules of soft law may, in practice, be respected regardless of whether or not they are of a legal nature.
Keywords: soft law, compliance, emotions
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