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Hard law is a term used to describe a particular type of foundational legal authority, particularly in international law. It can be best understood in comparison to its counterpart, soft law. Binding and enforceable legal documents, such as signed international treatises and U.N. resolutions, are hard law. Non-binding declarations and guidelines that simply state a general philosophy and are unenforceable except in the court of general opinion are soft law.
International law is a unique legal forum. Between sovereign countries there is no governing body that can demand comportment with a certain law of the land as a matter of course. Nations have to come to an agreement between themselves regarding the law they will follow in their relations with one another. These agreements, often known as treatises or resolutions, are negotiated and signed by appropriate political authorities and become the instruments of international law. The international community has established adjudicating bodies, such as the U.N. and the World Court, whose business it is to make sure countries comply with their international treatises or risk being ostracized by the rest of the world.
The nations of the world distinguish between signed treatises and gestures of goodwill. A signed treaty is a hard law. It will survive a country’s changing political administrations until the country withdraws from the treaty. Enforceability is a key feature of a binding hard law instrument, as it will spell out the penalties to be assessed if a party reneges on its obligations. Statements of solidarity and gestures of goodwill express a country’s philosophy, but nothing stops the country from going in a different direction if the political winds change.
Perhaps the best example of the hard and soft law dichotomy in action is the international law that governs the European Union. As a community of sovereign nations, member countries have to be diligent in the definition of their official obligations. The cooperative environment promoted by the union, however, has seen the development of soft law rules of conduct and general principals that are an expression of an increased congeniality amongst nations. Some scholars cast a specious eye on this development because soft law lacks the important features of hard law, such as assumed obligation, enforceability, uniformity, and the ability to adjudicate the issue in court. Some feel it is best to keep a country’s obligations restricted to the hard law that the country has officially ratified.
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