Hard law refers to binding and enforceable legal documents, such as international treaties and UN resolutions, while soft law includes non-binding statements and guidelines. International law is established through treaties negotiated and signed by political authorities, with adjudicative bodies ensuring compliance. The European Union has developed both hard and soft law, with some scholars questioning the effectiveness of soft law.
Hard law is a term used to describe a particular type of fundamental legal authority, particularly in international law. It can be better understood than its counterpart, soft law. Binding and enforceable legal documents, such as signed international treaties and United Nations resolutions, are hard law. Non-binding statements and guidelines that simply state a general philosophy and are not enforceable except in the court of general opinion are soft law.
International law is a single legal forum. Between sovereign countries there is no governing body that can make behavior with a certain law of the land a matter of course. The nations must come to an agreement among themselves concerning the law they will follow in their relations with one another. These agreements, often known as treaties or resolutions, are negotiated and signed by the relevant political authorities and become the instruments of international law. The international community has established adjudicative bodies, such as the UN and the World Court, whose job it is to make sure that countries comply with their international treaties or risk being ostracized by the rest of the world.
The nations of the world distinguish between signed treaties and gestures of goodwill. A signed treaty is a tough law. It will survive a country’s changing political administrations until the country withdraws from the treaty. Enforceability is a key feature of a binding hard law instrument, as it will dictate the penalties to be inflicted if one party shirks its obligations. Declarations of solidarity and gestures of goodwill express a country’s philosophy, but nothing prevents the country from going in a different direction if the political winds change.
Perhaps the best example of the dichotomy between hard and soft law in place is the international law that governs the European Union. As a community of sovereign nations, member countries must be diligent in defining their official obligations. However, the cooperative environment promoted by the union has seen the development of rules of conduct and general principles of soft law which are an expression of a growing congeniality between nations. Some scholars cast a specious eye on this development because soft law lacks the important characteristics of hard law, such as assumed obligation, enforceability, uniformity, and the ability to adjudicate the matter in court. Some feel it is best to keep a country’s obligations limited to the harsh law that the country has officially ratified.
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