Download this Paper Open PDF in Browser

The Interaction of Formal and Informal Lawmaking

INFORMAL INTERNATIONAL LAWMAKING, Joost Pauwelyn, R. Wessel & Jan Wouters, eds., Oxford University Press, 2012

Minnesota Legal Studies Research Paper No. 12-10

30 Pages Posted: 18 Feb 2012  

Mark A. Pollack

Temple University - Department of Political Science; Temple University - James E. Beasley School of Law

Gregory Shaffer

University of California, Irvine School of Law

Date Written: February 16, 2012

Abstract

Informal international lawmaking (IN-LAW) is an important and increasingly common phenomenon of contemporary international life. IN-LAW, however, has not replaced formal lawmaking, but exists alongside it, with multiple, overlapping formal and informal procedures often addressing the same substantive issues in world affairs. Why would states choose to address any given issue through formal or informal lawmaking – and why might they do both simultaneously? Furthermore, once two or more formal and informal lawmaking processes are underway, how do they interact in practice? To get at these questions theoretically, we develop two distinct theoretical models, one functionalist and the other distributive, and derive predictions about the conditions under which formal and informal procedures interact in complementary or antagonistic fashion. Moving from theory to empirics, we apply the theory to a series of cases, including the regulation of genetically modified foods, the protection of cultural diversity, climate change, humanitarian intervention, intellectual property rights and the legality of nuclear weapons, exploring in each case the motivations of states in establishing formal and informal law-making systems, as well as the complementary or antagonistic interaction of these systems in practice.

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

JEL Classification: F02, F10

Suggested Citation

Pollack, Mark A. and Shaffer, Gregory, The Interaction of Formal and Informal Lawmaking (February 16, 2012). INFORMAL INTERNATIONAL LAWMAKING, Joost Pauwelyn, R. Wessel & Jan Wouters, eds., Oxford University Press, 2012; Minnesota Legal Studies Research Paper No. 12-10. Available at SSRN: https://ssrn.com/abstract=2006450

Mark A. Pollack

Temple University - Department of Political Science ( email )

461 Gladfelter Hall
Philadelphia, PA 19122
United States

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

Gregory C. Shaffer (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92612
United States

Paper statistics

Downloads
458
Rank
50,816
Abstract Views
2,324