Coercion Factor in the Context of "Soft Law"

Abstract

The authors raise issues concerning the factors that determine compliance with the acts of “soft law” by participants of social interactions. At the same time, soft law is defined as a set of formalized general rules (norms, principles, criteria, standards) that do not have a legally binding nature, are not provided with official sanctions and are observed voluntarily due to the authority of their makers, the interest of the addressees and targeted social “pressure” that is put by the community on potential (and actual) violators. A key issue that arises in the context of “soft law” is whether law can exist without state coercion? If soft law is not secured by sanctions of a public-power nature, how is its binding character (validity) maintained? Is state coercion — in the form of direct violence or its threat — an attribute of a legal norm? The inclusion (or non-inclusion) of “soft law” norms in national legal systems, their application by courts and other law enforcement bodies, the authority and attractiveness of soft law as a regulatory system, etc., depend on the solution of these questions. Acts of “soft law” formally do not belong to the sources of law, do not contain legally binding provisions backed by state sanctions, but have some legal significance (sometimes essential) and sometimes — legal consequences. Ultimately, the authors conclude that by its nature, “soft law” per se is not legally binding, but the facts of universal recognition and application (primarily by the courts and other law enforcement agencies) give soft law instruments de facto binding character.