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11 - Soft law never dies

Published online by Cambridge University Press:  05 September 2015

Richard Rawlings
Affiliation:
University College London
Mark Elliott
Affiliation:
St Catharine's College, Cambridge
David Feldman
Affiliation:
Downing College, Cambridge
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Summary

‘Soft law’ is a fact of public life. Cast in terms of competing demands for flexibility and responsiveness, and consistency and coherence, official business could not sensibly be carried on without, to adopt a generous working definition, rules of conduct or pointers and commitments which are not directly legally enforceable but which may be treated as binding in particular legal or institutional contexts. While the phenomenon is commonly associated with international governance, it has increasingly resonated in public law scholarship if under different labels. An uncodified constitution, famous since Victorian times for conventions of the constitution bearing on the behaviour of, and relations between, principal organs of the State, is a natural habitat.

Examining a range of usages, this chapter looks at soft law as an instrument for, and barometer of, constitutional and administrative development over the course of a lifetime. Reflecting and reinforcing the notion of legalisation in contemporary society, commonly observed in terms of more legislation and more jurisprudence, as well as more lawyers, it pursues the idea of ‘soft law abounding’. While naturally vulnerable to the growth of formal legal norms, soft law techniques are also apt to be stimulated by it, in part by way of supplement and/or experiment, in part by way of counter-reaction.

The pervasive sense of ambiguity, as also the broad spectrum of rules, agreements, communications, etc. familiarly in play, is the other main starting point. Putting to one side the simplistic view of polar opposites, an influential institutionalist model references different dimensions to legalisation, whereby law is characterised as ‘harder’ or ‘softer’ according to the degree and precision of the obligations created, as well as the extent of involvement by a court or tribunal. Factors which point in a particular direction, a strong demand for authoritative interpretation and/or the constitutional symbolism of formal law perhaps, or conversely a preference for experimentation or ‘learning by doing’, may then be identified in functionalist fashion. It is well to remember, however, that while the choice of soft law technique will often be mundane, it may on occasion be a matter of significant political and/or legal dispute.

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Publisher: Cambridge University Press
Print publication year: 2015

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References

Baldwin, R., Rules and Government (Oxford: Clarendon Press, 1995)Google Scholar
Chinkin, C., ‘The Challenge of Soft Law: Development and Change in International Law’ (1989) 38 International and Comparative Law Quarterly850CrossRefGoogle Scholar
Creyke, R. and McMillan, J., ‘Soft law v hard law’ in Pearson, L., Harlow, C. and Taggart, M. (eds.), Administrative Law in a Changing State (Oxford: Hart Publishing, 2008)Google Scholar
Ganz, G., Quasi-Legislation: Recent Developments in Secondary Legislation (London: Sweet and Maxwell, 1987)Google Scholar
Rawlings, R., ‘Concordats of the Constitution’ (2000) 116 Law Quarterly Review257Google Scholar
Sossin, L. and Smith, C., ‘Hard Choices and Soft Law: Ethical Codes, Policy Guidelines and the Role of Courts in Regulating Government’ (2003) 40 Alberta Law Review867Google Scholar
Terpan, F., ‘Soft Law in the European Union-The Changing Nature of the European Union’ (2015) 21 European Law Journal68CrossRefGoogle Scholar
Trubek, D. and Trubek, L., ‘Hard and Soft Law in the Construction of Social Europe: The Role of the Open Method of Coordination’ (2005) 11 European Law Journal343CrossRefGoogle Scholar

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  • Soft law never dies
  • Edited by Mark Elliott, St Catharine's College, Cambridge, David Feldman, Downing College, Cambridge
  • Book: The Cambridge Companion to Public Law
  • Online publication: 05 September 2015
  • Chapter DOI: https://doi.org/10.1017/CCO9781139342551.012
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  • Soft law never dies
  • Edited by Mark Elliott, St Catharine's College, Cambridge, David Feldman, Downing College, Cambridge
  • Book: The Cambridge Companion to Public Law
  • Online publication: 05 September 2015
  • Chapter DOI: https://doi.org/10.1017/CCO9781139342551.012
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Soft law never dies
  • Edited by Mark Elliott, St Catharine's College, Cambridge, David Feldman, Downing College, Cambridge
  • Book: The Cambridge Companion to Public Law
  • Online publication: 05 September 2015
  • Chapter DOI: https://doi.org/10.1017/CCO9781139342551.012
Available formats
×