Hard and Soft Law in International Governance

TLDR

Actors often prefer softer forms of legalization, which involve reduced precision, less stringent obligations, and weaker delegation. The study examines why international actors—including states, firms, and activists—create different types of legalized arrangements to address political and substantive problems. The authors analyze hard and soft legalization by comparing their baseline advantages, incorporating normative legal elements, considering the role of nonstate actors, and illustrating these advantages with examples. They find that hard legalization provides precise, binding obligations, whereas soft legalization is easier to achieve, better manages uncertainty, respects sovereignty, and facilitates compromise, making each form superior in different circumstances.

Abstract

We examine why international actors -- including states, firms, and activists -- create different types of legalized arrangements to solve political and substantive problems. We show how particular forms of legalization provide superior institutional solutions in different circumstances. We begin by examining the baseline advantages of hard legalization (that is, precise, legally binding obligations with appropriate third-party delegation). We emphasize, however, that actors often prefer softer forms of legalization (that is, various combinations of reduced precision, less stringent obligation, and weaker delegation). Soft legalization has a number of significant advantages: it is easier to achieve, provides strategies for dealing with uncertainty, infringes less on sovereignty, and facilitates compromise among differentiated actors. Although our approach is largely interest-based, we explicitly incorporate the normative elements that are central in law and in recent international relations theorizing. We also consider the important role of nonstate actors who, along with states, are central participants in contemporary international legalization. We illustrate the advantages of various forms of international legal arrangements with examples drawn from articles in this special issue and elsewhere.