Soft Law as a New Mode of Governance: A Legal Perspective

After a brief review of the history and typology of soft law in public international law, we approach the concept deductively. We reject the binary view and subscribe to the continuum view. Building on the idea of graduated normativity and on the prototype theory of concepts, we submit that soft law is in the penumbra of law. It can be distinguished from purely political documents more or less readily, depending on its closeness to the prototype of law. Insights gained by the study of public international soft law are relevant to EC and EU soft law despite some differences between those legal orders. European soft law is created by institutions, Member States, and private actors. The legal effects of soft law acts can be clustered according to their relation to hard law. Both practical and normative considerations motivate reliance on soft law. An examination of the soft legal consequences of a disregard of soft law shows that compliance control mechanisms for hard and soft international law are converging. Moreover, some factors of compliance are independent of the theoretical hardness or softness of a given norm. In a legal policy perspective, the proliferation of soft law carries both dangers and benefits. Especially soft acts with a lawplus function do not weaken the respective regimes, but perfect them.