We Need to Cut Off the Head of the King: Past, Present, and Future Approaches to International Soft Law
Max Planck Institute for Comparative Public Law and International Law; Goethe University Frankfurt - Research Center SAFE; Goethe University Frankfurt - Cluster of Excellence Normative Orders; Goethe University Frankfurt
July 13, 2011
Leiden Journal of International Law, Vol. 25, Issue 2, 2012
This paper surveys contemporary approaches to international soft law, such as the various types of legal positivism, legal realism, critical legal studies, and global administrative law. It scrutinizes to what extent the concept of law endorsed by each of these approaches is able to tackle two challenges caused by the spread of soft law as a means of governance: (1) The fact that international soft law is today often the functional equivalent of international treaties, and (2) the contestations of the legitimacy of soft law. It concludes that approaches which stress the public law character of international law appear very promising, because they link broad concepts of law with considerations of legitimacy. However, since international institutions today exercise public authority not only through soft law or hard law, but also through non-legal instruments like information, the paper argues that one ultimately needs to conceptually dissociate the concept of international law from the concept of public authority.
Keywords: soft law, international law, international legal theory, legal positivism, legal realism, critical legal studies, global administrative law, public authority, foucault
JEL Classification: K33, K40, D70, F53
Date posted: July 14, 2011 ; Last revised: January 18, 2012