Hard and Soft Law: What Have We Learned?

in International Law and International Relations: Insights from Interdisciplinary Scholarship, Jeffrey L. Dunoff and Mark A. Pollack (eds.),(New York: Cambridge University Press, 2012)

Minnesota Legal Studies Research Paper No. 12-17

28 Pages Posted: 25 Apr 2012 Last revised: 3 May 2012

See all articles by Gregory Shaffer

Gregory Shaffer

University of California, Irvine School of Law

Mark A. Pollack

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

Date Written: April 23, 2012

Abstract

Political scientists and legal scholars have increasingly explored the concepts of hard and soft law in international governance. In this paper for a volume on International Law and International Relations, we review and assess this literature, with a focus on the insights generated by interdisciplinary IL/IR scholarship. We first address the key definitional question, noting the substantial disagreements among positivist, rational institutionalist, and constructivist scholars about the definitions and the key features of hard and soft law. Next, we examine the question of hard and soft law as a design choice, asking under what conditions states (or other actors) might opt for hard- or soft-law commitments in international relations. We distinguish between a nearly ubiquitous functionalist approach and a nascent distributive approach distinctive to contemporary IL/IR scholarship. We then examine the question of how hard and soft law interact in an increasingly complex and fragmented international legal landscape. Finally, we examine the sparse but highly suggestive scholarship on the impact of hard and soft law on legal interpretation, compliance, and effectiveness. We conclude by assessing the value-added, lacunae, and blind spots of the IL/IR literature in this area.

Keywords: hard law, soft law, institutional design, fragmentation, compliance

Suggested Citation

Shaffer, Gregory C. and Pollack, Mark A., Hard and Soft Law: What Have We Learned? (April 23, 2012). in International Law and International Relations: Insights from Interdisciplinary Scholarship, Jeffrey L. Dunoff and Mark A. Pollack (eds.),(New York: Cambridge University Press, 2012); Minnesota Legal Studies Research Paper No. 12-17. Available at SSRN: https://ssrn.com/abstract=2044800 or http://dx.doi.org/10.2139/ssrn.2044800

Gregory C. Shaffer (Contact Author)

University of California, Irvine School of Law ( email )

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

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

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