New Perspectives on the Interplay between Hard Law and Soft Law in Europe and Beyond

Senden, Linda and Scott, Colin (2015) New Perspectives on the Interplay between Hard Law and Soft Law in Europe and Beyond. [Conference Proceedings] (Submitted)

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Abstract

Regional and global networks increasingly develop, promulgate and diffuse soft law in the form of non-binding rules, standards and guidelines. This trend is particularly strong - but not limited to - the EU, which is a multi-level polity wherein in some issue areas regulatory power is disaggregated into the hands of task-specific transnational networks. These pieces of soft legislation coexist along with hard domestic law in non-trivial ways. In some cases, soft law is actively supported by private actors to prevent the development of more binding legislation. However, soft law can also entail contractual provisions that make it enforceable once agreed upon. This is for instance the case of the "Safe Harbour" agreement on data protection between the EU and the US. Soft law can also pave the way for more stringent public regulation and be referred into hard law. Transnational (soft) law and domestic (hard) law are more and more intertwined in practice, as an effective regulatory regime ideally requires to make the most of the flexibility of the former and of the certainty of the latter. However, the varieties of soft and hard law configurations, their origin, consequences and the trade-offs associated with them are still poorly understood. This panel welcomes theoretical and empirical contributions addressing the complex relationships between soft and hard law with a special attention to the conditions explaining different soft and hard law configurations and their consequences for regulation and governance.

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