Soft Law as a New Mode of Governance: A Legal Perspective

NEWGOV: New Modes of Governance

35 Pages Posted: 31 Aug 2010

See all articles by Anne Peters

Anne Peters

Max Planck Institute for Comparative Public Law and International Law

Isabella Pagotto

Independent

Date Written: February 28, 2006

Abstract

After a brief review of the history and typology of soft law in public international law, we approach the concept deductively. We reject the binary view and subscribe to the continuum view. Building on the idea of graduated normativity and on the prototype theory of concepts, we submit that soft law is in the penumbra of law. It can be distinguished from purely political documents more or less readily, depending on its closeness to the prototype of law.

Insights gained by the study of public international soft law are relevant to EC and EU soft law despite some differences between those legal orders. European soft law is created by institutions, Member States, and private actors. The legal effects of soft law acts can be clustered according to their relation to hard law. Both practical and normative considerations motivate reliance on soft law.

An examination of the soft legal consequences of a disregard of soft law shows that compliance control mechanisms for hard and soft international law are converging. Moreover, some factors of compliance are independent of the theoretical hardness or softness of a given norm.

In a legal policy perspective, the proliferation of soft law carries both dangers and benefits. Especially soft acts with a law-plus function do not weaken the respective regimes, but perfect them.

Keywords: Governance, Soft Law, International Law, EU, Compliance, Public Law, Public International Law

JEL Classification: K33

Suggested Citation

Peters, Anne and Pagotto, Isabella, Soft Law as a New Mode of Governance: A Legal Perspective (February 28, 2006). NEWGOV: New Modes of Governance. Available at SSRN: https://ssrn.com/abstract=1668531 or http://dx.doi.org/10.2139/ssrn.1668531

Anne Peters (Contact Author)

Max Planck Institute for Comparative Public Law and International Law ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany

HOME PAGE: http://www.mpil.de

Isabella Pagotto

Independent ( email )

No Address Available

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