
Publication details
Publisher: Springer
Place: Berlin
Year: 2018
Pages: 145-164
Series: Law and Philosophy Library
ISBN (Hardback): 9783319775210
Full citation:
, "A fuller understanding of legal validity and soft law", in: Legal validity and soft law, Berlin, Springer, 2018


A fuller understanding of legal validity and soft law
pp. 145-164
in: Pauline Westerman, Jaap Hage, Stephan Kirste, Anne R. Mackor (eds), Legal validity and soft law, Berlin, Springer, 2018Abstract
Soft law appears to be the "bastard child" of law. Because of its dubious origin, soft law is not officially recognized, in positivist conceptions of law, as legally valid law. At the same time, the legal relevance of soft law is hard to deny. Soft law does generate rights and duties that the parties at hand, and even sometimes state officials, perceive as legally binding. How to make sense of soft law? Is it law or nonlaw, or something in between, law that is emerging or not yet law? Is it really soft and, if so, in what sense? In this chapter, two different approaches to legal validity and soft law will be confronted with each other. Firstly, we will present Kelsen's conception of legal validity, which still is one of the prevailing positivist conceptions and very close to the traditional lawyer's internal perspective on law. Secondly, we will discuss the interactionist theory of legal validity, as developed by Lon L. Fuller. Finally, the two opposing approaches will be compared and evaluated. Building on an interactionist approach, we will explore how we can account for the legal relevance of soft law, without rejecting it all too easily as nonlaw.
Publication details
Publisher: Springer
Place: Berlin
Year: 2018
Pages: 145-164
Series: Law and Philosophy Library
ISBN (Hardback): 9783319775210
Full citation:
, "A fuller understanding of legal validity and soft law", in: Legal validity and soft law, Berlin, Springer, 2018