Soft Law – The Intermediate Stage Between Freedom and Control

Abstract

Abstract The soft law is placed on a scale between freedom and control, autonomy, and hard law. At first sight, it falls short of building elements known in the legal principles of law, like transparency, certainty, and predictability, but on the other hand, it is needed to address areas where complexity reigns, where flexibility is needed, where hard law is too hard, invasive, and inappropriate to achieve more distant goals. As soft law can have not only practical but also legal effects, this paper analyses the basic elements of soft law, its practice in the US, France, and the EU and gives pro et contra arguments to be able to recognise it as such and to apply it on a more objective manner. This can be done with the help of the manifest error standard of the judiciary, its structure, and the help of participatory collective wisdom. A first step could be the use of the evidentiary standard of manifest error as a possible solution for the most effective soft law (a la “Turing style”), after which the structure and collective wisdom follow. When the principle of loyal cooperation among institutions is established, the soft law hardens more and more into clay and/or hard law. It thus matters who, when, how, and why to enact the soft law.