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What is Soft Law?

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  • Written By: Mary McMahon
  • Edited By: Nancy Fann-Im
  • Last Modified Date: 13 November 2016
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Soft law is law without legally binding components. It has the potential to transition into hard law, law backed with legal requirements and obligations. International law has historically relied on it to accomplish a number of aims, and the practice can also be seen in action in several nations, where bodies like legislatures may opt for a soft law approach on certain issues. The key characteristic of this kind of law is that it has a weak nature, with no legal obligations to bind anyone to the law. These laws also tend to be less precise in definition, nature, and scope, and usually do not delegate authority to other bodies for the purpose of enforcement.

Internationally, many declarations and resolutions made in the General Assembly of the United Nations are examples of soft laws. These communications express a desire to undertake a given action, but do not set out a clear framework for accomplishing goals, do not delegate enforcement of the law to any body, and do not constitute treaties. As legally binding agreements, treaties are hard laws, but they may contain components like codes of conduct that are structured in a soft way, allowing some leeway.

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Rule-making accomplished by legislators and government agencies can also be a form of soft law. Unless very specific procedures are part of the process, rules are not legally binding, only strongly encouraged. A government agency may use rule-making to experiment with establishing legal guidelines. By working within a flexible rule, they can see what works and what does not and apply this to the process of passing a more formal rule with legally binding clauses.

In international negotiations, soft law can play a critical role. Parties to an agreement may only be willing to commit if there is some flexibility, and negotiations can break down over an insistence on hard law. Having soft law as an option can be useful for negotiators. It can also cause problems, however, as people may refuse to abide by laws without legally binding components, and thus members of the General Assembly of the United Nations could be selective about which laws they choose to follow.

All soft law has the potential to turn into hard law. Legislators and policymakers can evaluate the law to draw up a more detailed version with mechanisms for enforcement and clearly defined terms. This new law can be brought to a vote and subjected to any tests necessary to be legally binding, such as a cost/benefit analysis from a government agency.

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