Soft Law and Governance: Aspects of the European Union Experience
in the European Union Experience, LUO Haocai (ed), The Challenge of Soft Law (Beijing, Peking University Press, 2009)
16 Pages Posted: 23 Jan 2018
Date Written: January 14, 2010
Numerous legal systems, indeed perhaps all of them, make use not only of legally binding norms but also of 'soft law', measures which are not legally binding but which nevertheless have practical and even legal effects. The European Union (EU) is no exception to this generalisation. Since 1979, and in particular since the 1992 Maastricht Treaty on the European Union, the EU has elaborated systematically and instrumentally a variety of soft law measures in pursuit of a wide range of public policy objectives.
This paper aims to present selected aspects of the EU experience with soft law. The EU experience, both domestically and in international relations, may be of interest to other countries, which seek to combine legally binding measures and soft law in the service of economic and social regulation, if only because the EU experience reminds us that that social, political, legal, economic and cultural contexts shape and condition the choice, use and effectiveness of different types of norms, including soft law. In turn, such a reflection on its own experience within an implicitly comparative framework may be instructive for the EU itself. In the midst of the current financial crisis, the EU may be at a turning point, and there is considerable discussion about how best to regulate financial markets and other markets, whether through legally binding measures or soft law. Consequently, this paper is in the nature of a 'think piece', intended to raise questions and to provoke reflection, drawing considerably on my own research rather than being a systematic presentation of the subject.
This paper argues that, in the EU, certain basic features of regional integration have given rise to the frequent use of soft law. This argument is developed in three parts. A first part introduces some basic features of the EU today. The second, main part considers examples of soft law in the EU. Finally, the concluding remarks consider what, in sum, we can learn from the EU experience.
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