Updated: Apr 30
Some legal concepts are general, while many are not general. The latter of the concepts are designed to shape the economic, administrative and sometimes, political priorities of the systems we live with. In this article, let us deconstruct the idea of “Soft law” to understand in basic terms, the ideation behind creating hybrid legal concepts and regulatory systems in the contemporary times we live in.
The “Law” as Known
Instead of getting on the usual understanding of legal theory, and its basics, from the positive law theory to other schools of thought, let us adopt a different method to look at “Law” as something different. When ideas are synthesised, solutions are manifested. In general, the process is not as oversimplified, self-explanatory and charted out as we assume it to be. Often it happens that legalising, in a positive or negative sense or maybe with an active/omissive intent, a plane of reference and incidence proliferates, multiplies and complicates/recalibrates with time. For example, the fundamental rules of contract jurisprudence, never change. Yet, as times have changed, the way contracts are understood, surely are not the same, even within a specific legal conundrum. Often the loopholes present and the binding value impugned upon the legal boundaries and extent defined in the documents, reflect the operability of such documents. This can even extend to key legal documents such as constitutions, statutes, rules, regulations, circulars, guidelines and ordinances.
According to Prof. Roger Brownsword’s book “Law 3.0: Rules, Regulation and Technology“, the development of Law per se can be assessed, in a modern scheme of things, in 3 stages. An excerpt has been shared above to make a simple reflection.
Law 1.0 (Coherentism): This generally implies the era of positive law where top-down approaches to law enforcement, administration and interpretation were existent. We can refer to the post-Industrial revolution times as well for a better context.
Law 2.0(Regulatory-instrumentalist): The stage when Law 1.0 as we know, in fundamental terms, is disrupted due to technological interventions. Yet we see, that technology itself becomes a solution and we go into the times of regulatory-instrumentalism (in a generic sense). Although I can refer to the AI “age”, I would limit here by stating that the sophistication of technology development itself could shape our legal and administrative status quo, in as many effective ways possible. This is also the stage when the emergence of regulatory theory is clearly visible, in as many legal fields as possible.
Law 3.0(Technocratic): This is the current stage, as of now, where public-private partnerships too shape the way regulators would act, and how laws would affect our day-to-day stakeholders. The potential of technology, regulators and the stakeholders creates the case of regulation, self-regulation, technology-oriented regulation and collaborative governance, together (there could be more or less similar means). Contrary to popular assertions that the US is a free market economy, the most sophisticated and important programmes, which were utilised by several MNCs and companies, are the gift of the United States Government’s agencies (internet for example).
What is common to observe are the following:
The significance of primary and secondary legal documents, which shape a polity per se, in terms of it being subject to constant change, is largely reduced by delegating their authoritative aspect, operationally, to rules, regulations, circulars and other kinds of by-laws. The role of regulatory theory becomes quite worth engaging and their proximity cum sensitivity to the incidents and circumstances related to the legal disputes or lacunae, is obviously going to be more.
A new phenomenon becomes mainstream, which in the information age, has its own colors and forms: stakeholder-ism. It means that various non-state actors become important stakeholders with time in subtle ways, which include citizens, civil society, companies, start-ups and other relevant actors, for local, provincial, national, transnational, international and global settings as we know. These stakeholders have some subtle role in at least vouching to utilise the potential the proximate and sensitive purpose of regulators at the first place. The relevancy of such stakeholders, of course, has to hold some water, which is a long-term issue in the timeline of regulatory and collaborative governance.
Even certain non-regulatory state actors gain relevance, and their approach and methods towards “public interest” are renewed with time, to seek clarity and optimisation towards achieving certain goals and maintaining the status quo, as we see. It depends if they affect the regulatory landscape. Yet, their role in shaping the economics behind the legal and administrative machineries, is intriguing.
Let us imagine a few examples from the real world, in graphical terms to further understand the phenomenon.
#1: RBI: Regulation & Accountability
Bhargavi Zaveri discusses an important question on the Indian scenario, whether regulators require constitutional status in India or not. An excerpt from her article published in Business Standard explains quite much about regulatory theory per se.
Securing the de jure and de facto is better achieved by asking for “fair contract terms” for these agencies under their governing law, aligning the incentives of the persons heading the regulatory agencies with public interest and requiring them to consistently explain their actions to the public. When an agency is required to explain its actions to the public or its representatives, it may seem like its independence is being compromised. On the contrary, transparency of conduct is one of the most effective ways of incentivising the agency to act in public interest. A classic example is that of the provisions built into the Reserve Bank of India Act in 2015, requiring the regular publication of the minutes of the monetary policy committee’s meetings, individual votes of each member and the requirement to explain to the government the failures in maintaining the inflation target. This is a powerful provision that simultaneously secures independence and accountability, as it would be hard to explain decisions and votes that do not align with public interest.
#2: The EU Artificial Intelligence Act
Thibault Schrepel weighs down on the EU Artificial Intelligence Act and explains the risk-related considerations involved for companies in the realm of regulation for Network Law Review.
Like GDPR, the AI Act will apply to a large number of companies in Europe. There are two overinclusive conditions to fall within the scope of the regulation. First, the company must use an AI system such as defined by the European Commission. The definition of AI is very, very broad. AI includes machine learning systems, but also expert systems, “logic and knowledge-based approaches” and statistical calculations. Two, the company must operate in a risky sector such as defined in the regulation. The riskier the sector, the heavier the regulation. For example, companies operating in “high risk” areas such as health or education will have to submit their AI system to a national agency for validation, before the system is released, whenever it is modified, and every five years.
#3: The Amendments to the IHR 2005 on Health Emergencies
India, among a group of countries had supported the US-proposed amendments to the International Health Regulations, 2005 (especially Article 6 of the Regulations), with the condition that the right to reservation by states is accepted as an amendment as well. In the Committee A of the World Health Assembly, on the application of Article 6, the Article 62 of the regulations were amended. The objections by certain countries however to the US-proposed amendments stem from reshaping the World Health Organisation’s regulatory capacity per se, over the question of whether the over-centralisation of the WHO is a necessity or not.
Dr Silvia Behrendt and Dr Amrei Müller review the amendments proposed by the United States of the International Health Regulations, 2005 for EJIL Talk!.
This short review of the US proposals to amend the IHR would like to end with a call on members of the WHA to discuss and carefully consider the implications of the proposed amendments before endorsing and adopting them. Have technocratic, biomedical approaches, developed and implemented from the top down primarily through executive action, worked well in response to Covid-19, justifying a further extension and centralisation of global emergency powers at WHO? And, if WHO’s powers are extended in this way, is there a need to also answer the question quis custodiet ipsos custodes (who guards the guards?), and to thus set up mechanisms ensuring that WHO complies with its obligations under the IHR and its Constitution, as well as its responsibilities for human rights deriving from customary international human rights law?
In these 3 different cases, of different magnitude, purpose and scope, we can observe how the subtleties of regulatory theory are tried and tested. Approaches and methods could be rigid, flexible or loose. Nevertheless, tried-and-tested subtleties sometimes might fail, or could work, practically. The transformation of regulatory theory globally, as a concept, is not to just pile up another set of bodies, but to rather innovate in shaping the legal and administrative apparatuses which affect our lives, in any way possible. There can be consequences not without context, of the laws and regulations we adopt and shape with time. Hence, as Hard Law (Law 1.0), the corpus of laws and regulations, shapes, the role of Soft Law becomes much important.
The Technocracy of Soft Law
Andrew T. Guzman and Timothy L. Meyer explain what Soft Law is in an article for Journal of Legal Analysis, Volume 2(1) :
But to say that soft law rules are quasi-legal is simply to beg the question of what separates the quasi-legal from the nonlegal, on the one hand, and the legal, on the other hand. The discomfort of legal commentators with soft law stems in significant part from this ambiguity. Soft law is a residual category, defined in opposition to clearer categories rather than on its own terms. Thus, soft law is most commonly defined to include hortatory, rather than legally binding, obligations. The focus of this definition is usually on whether or not something that looks like a legal obligation in some ways (e.g., it is a written exchange of promises between states) nevertheless falls short of what is required to formally bind states. This definition, then, is a doctrinal one—things that fall short of international law are called soft law. […] In our view, for reasons that are explained more clearly later, soft law is best understood as a continuum, or spectrum, running between fully binding treaties and fully political positions. Viewed in this way, soft law is something that dims in importance as the commitments of states get weaker, eventually disappearing altogether. […] There are so many different forms of soft law that it is often more fruitful to think of it as a group of subjects, rather than a single one.
Let us look at this reflection on Soft Law by Guzman and Meyer in graphical terms.
Soft Law, according to this mind map representation, is a corpus of law, which is not so performative like laws. It does have a multi-disciplinary route of impact, and yet we can inspire from the same to shape our legal and administrative solutions, in any area, be it Alternative Dispute Resolution, International Law, and even Constitutional Policy. Soft Law has the potential to bring fields like economy, policy, environment sciences, technology, victimology, finance, data science and many other unbeknownst fields together with the legal field. It behaves like a Schrödinger’s Cat.
To make things simple - In quantum mechanics, Schrödinger's cat is a “thought experiment that illustrates a paradox of quantum superposition. In the thought experiment, a hypothetical cat may be considered simultaneously both alive and dead as a result of its fate being linked to a random subatomic event that may or may not occur”.
Similarly, Soft Law in reality, does not vanish or exist in absolute terms. It is a phenomenon where the repositories of legal thinking can always learn the best from the policy phenomenon, which are uncertain, unclear and hortatory. Lawmakers and courts can try to make Soft Law rigid, but the nuance always lies in the details. It is impossible to keep up with the rigidity, as Soft Law has to be fungible. Otherwise, the instrumentation which we call as “the” Soft Law, will automatically become a relic or existing part of the Hard Law conundrum, in the form of regulation mechanisms, laws, judgments or any other possible form.
I will come up with more insights and analyses in future on various “kinds and forms” of Soft Law to further unpack the phenomenon in the language of graphics.