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Hard Vs. Soft Law: Alternatives, Complements, and Antagonists in International Governance Gregory C

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Hard Vs. Soft Law: Alternatives, Complements, and Antagonists in International Governance Gregory C University of Minnesota Law School Scholarship Repository Minnesota Law Review 2010 Hard Vs. Soft Law: Alternatives, Complements, and Antagonists in International Governance Gregory C. Shaffer Mark A. Pollack Follow this and additional works at: https://scholarship.law.umn.edu/mlr Part of the Law Commons Recommended Citation Shaffer, Gregory C. and Pollack, Mark A., "Hard Vs. Soft Law: Alternatives, Complements, and Antagonists in International Governance" (2010). Minnesota Law Review. 491. https://scholarship.law.umn.edu/mlr/491 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Article Hard vs. Soft Law: Alternatives, Complements, and Antagonists in International Governance Gregory C. Shaffer and Mark A. Pollackt I. The Canonical Literature on International Hard and Soft Law ..................................... 712 A. Definitions of Hard and Soft Law ........ ......... 712 B. Advantages and Disadvantages of Hard and Soft Law as Alternatives .................. ........ 717 C. The Interaction of Hard and Soft Law as Complements ............................... 721 II. Theorizing International Hard- and Soft-Law Interaction: Power, Distributive Conflict, Regime Complexes, and Implementation ................... 727 A. The Challenge of Power .................. ..... 728 B. The Challenge of Distributive Conflict ....... ..... 730 C. The Challenge of Regime Complexes .................. 737 D. The Challenge of Implementation ........ ......... 741 III. Hard- and Soft-Law Interaction as Antagonists: The Example of Genetically Modified Foods ....... ........ 743 A. Hard- and Soft-Law Interaction as Antagonists ........ 743 t Gregory Shaffer is Melvin C. Steen Professor of Law, University of Minnesota Law School, and Mark Pollack is Jean Monnet Chair and Associate Professor of Political Science, Temple University. As all of our work, this Ar- ticle represents an equal intellectual partnership. We thank Todd Allee, Lilia- na Andonova, John Bronsteen, Daniel Drezner, Brett Frischmann, Tom Gins- burg, Daniel Halberstam, Terry Halliday, Larry Helfer, Kal Raustiala, and Spencer Waller for their comments, as well as the participants at conferences and workshops at the University of Michigan, the University of Illinois, Loyola University Chicago, the Law and Society Association (Montreal), the Society of International Economic Law (Geneva), the International Law Association (New York City) and the Institute des Haute Etudes Internationaleset du De- veloppement (Geneva). We thank Melissa Beckman, Mathew Bills, Mathew Fortin, Kisa Patel, and Mary Rumsey for their research assistance. All errors of course remain our own. Copyright © 2010 by Gregory C. Shaffer and Mark A. Pollack. 706 2010] HARD VS. SOFT LAW 707 B. A Legal Realist Theory of Judicial Decision Making.. 748 C. The Example of Genetically Modified Foods .............. 752 IV. Five Hypotheses Regarding the Interaction of Hard- and Soft-Law Instruments ................... ..... 765 A. Where Powerful States Agree .................. 765 B. Where Powerful States Disagree ................ 767 C. When Less Powerful States Disagree ................ 774 D. The Recursive Impact of the Politics of Implementation ............................. 784 E. The Choice of Hard and Soft Law as Antagonists ...... 788 1. New Soft Law to Counter Existing Hard Law ..... 790 2. New Hard Law to Counter Existing Hard Law ... 791 3. New Hard Law to Counter Existing Soft Law ..... 792 4. New Soft Law to Counter Existing Soft Law ....... 795 Conclusion ............................................. 798 There has been a prolific amount of scholarship regarding the use of "hard" and "soft" law in international governance. This law and social science literature assesses the relative functional attributes and deficiencies of hard- and soft-law in- struments as alternatives for international governance.' It also examines how these instruments can be combined sequentially as mutually reinforcing complements to lead to greater interna- tional cooperation. This Article, in contrast, shows how hard and soft law can operate not only as alternatives and comple- ments, but also as antagonists. It sets forth specific hypotheses as to how, and under what conditions, hard- and soft-law in- struments interact in different ways in international gover- nance, supported by empirical examples. The existing law and social science literature on hard and soft law can be divided into three camps: legal positivist, ratio- nalist, and constructivist. All three of these camps address how hard and soft law are used as alternatives, as well as how they can interact in complementary ways; but they each have differ- ent starting points. Legal positivists tend to favor hard law and view hard and soft law in binary terms. For them, hard law re- fers to legal obligations of a formally binding nature, while soft law refers to those that are not formally binding but may none- theless lead to binding hard law. Rationalists, in contrast, con- tend that hard and soft law have distinct attributes that states choose for different contexts. They also find that hard and soft 1. The literature discussed in this introduction is explored in greater de- tail in later sections of the Article. See infra Parts I, II, III. 708 MINNESOTA LAW REVIEW [94:706 law, in light of these different attributes, can build upon each other. Constructivists maintain that state interests are formed through socialization processes of interstate interaction which hard and soft law can facilitate. Constructivists often favor soft-law instruments for their capacity to generate shared norms and a sense of common purpose and identity, without the constraints raised by concerns over potential litigation. Re- gardless of their views about the strengths and weaknesses of hard and soft law as alternatives, all three schools examine how hard and soft law can serve as mutually supporting com- plements to each other. This Article's aim is not to adjudicate among these three views about the respective strengths and weaknesses of hard and soft law, although we can be viewed as rationalists in our focus on actors and their interests. 2 Rather, the Article's aim is to enhance understanding of how hard and soft law interact under different conditions. The Article finds that all three exist- ing approaches to the study of hard and soft law have erred in focusing only on hard and soft law operating either as alterna- tives or as mutually supporting complements, thus presenting an inaccurate picture of how international law develops. The Article makes three central claims. The first and pri- mary claim is that international hard- and soft-law instru- ments (or, for that matter, any legal instruments that vary in their soft- and hard-law characteristics) serve not only as al- ternatives or complements, but often as antagonists. Hard and soft legal norms can be antagonistic in a conflict-of-laws sense. A proliferation of international legal norms can and (as this Ar- ticle demonstrates) often does lead to inconsistencies and con- flicts among these norms. Such a formulation of hard- and soft-law interaction, how- ever, can be misleading, since legal instruments are not actors exercising agency. The issue can therefore be fruitfully re- framed in terms of agents, to ask whether states and nonstate actors design or use hard- and soft-law instruments to comple- ment or to counter existing legal provisions. Thus, rather than saying, "soft law can elaborate and therefore complement hard law" (common in the existing literature), one can say, "states 2. While both of us can be viewed primarily as rationalists because of our focus on actors and their interests, our approach takes seriously constructivist insights. See generally, e.g., MARK A. POLLACK & GREGORY C. SHAFFER, WHEN COOPERATION FAILS: THE INTERNATIONAL LAW AND POLITICS OF GENETICALLY MODIFIED FOODS (2009). 2010]1 HARD VS. SOFT LAW 709 and other actors may adopt soft-law provisions to elaborate the provisions of existing hard law." Similarly, rather than saying "hard and soft law can interact as antagonists," one can say that "some states or other actors, unhappy with existing legal agreements, may promote the adoption of new legal provisions designed to obfuscate and undermine those arrangements." It is primarily in this latter sense that we shall argue theoretical- ly, and demonstrate empirically, the frequently antagonistic re- lationship of hard and soft law. The Article's second claim is that when actors promote a hard- or soft-law instrument to counter the other, this antago- nistic interaction has particular implications in a fragmented international system. It can affect the very nature of interna- tional hard- and soft-law regimes and their purported advan- tages. The Article shows how, when actors promote countervail- ing hard or soft law, such antagonistic interaction can lead to the hardening of soft-law regimes, resulting in more strategic bargaining and reducing their purported advantages of consen- sus building through information sharing and persuasion, and the softening of hard-law regimes, resulting in reduced legal certainty and predictability. This result is more likely where there is distributive conflict between powerful states. The Article's third and final claim is that the interaction of hard
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