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Three Things Distinguish Hard from Soft Law
International arrangements may be more or less legalized. Hard law is distinguished from soft law according to three features.
International governance has become increasingly legalized throughout the 20th century. However, legalization is not binary. That is, international law is not simply present or absent in a given issue area.
The situation is much more complex. A better approach is to understand legalization as a continuum, moving from “soft” law to “hard” law. But, how do we distinguish between harder and softer law? What are the criteria?
Dimensions of Legalization
Scholars Kenneth W. Abbott and Duncan Snidal distinguish harder from softer international law based on three dimensions:
Types of Hardness and Softness
An international law is not simply hard or soft. Not only do laws vary from harder to softer, but they may be hard or soft in different ways. A hard law could be highly legalized across all three dimensions, but a softer law might be legalized on only one or two dimensions. Also, a law could be softer in different ways. For instance:
The harder a law is, the more legalized it is.
How Do Hard and Soft Law Relate?
Whether an international arrangement is more or less legalized depends on the problem that states are trying to solve, as well as the participants involved in creating the law.
Is Harder Law Always Better?
Each form of law has its benefits and its drawbacks. In some cases, the benefits of hard law may outweigh the costs. In other situations, a law that is less legalized on one of more of the dimensions (thus softer) may be preferable.
Also, whether harder or softer law is “better” depends on the perspectives of the different actors. In a particular issue area, some states may prefer harder law, while others may prefer a softer law.
Is Soft Law Simply a Stepping Stone to Hard Law?
Soft law is not merely law that has not “hardened” yet. Soft law may become more legalized over time. However, it is not necessary that it do so. It may be in the interests of the parties to keep to a less legalized relationship.
Harder law may have particular benefits, but softer law has benefits as well. The benefits of softer law may be lost if the law becomes harder. Sometimes softer law may be in everyone's best interests.
International relations have become more legalized. However, as Abbot and Snidal point out, the degree of legalization varies from hard law to soft law. They distinguish between hard and soft law according to three criteria that vary in different ways. So, law is not hard or soft, but harder versus softer, according to these characteristics.
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Abbott, Kenneth W., and Duncan Snidal. 2000. "Hard and Soft Law in International Governance." International Organization 54:421-56.
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