How to Operationalize Open Norms in Hard and Soft Laws: Reflections Based on Two Distinct Regulatory Examples

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Labour standards are often and increasingly framed as open norms, at a higher level of abstraction, both as national hard laws and transnational hybrid, soft labour law instruments. A significant share of these open norms set standards for employers to stimulate socially responsible corporate behaviour. Nonetheless, concerns are often raised about the uncertain, unmeasurable, possibly insufficient implementation of these standards. This article examines two regulatory case-studies in order to reflect on the chances of implementation of open norms. One case study is taken from national hard law: the principle of ‘equitable assessment’ from the 2012 Hungarian Labour Code, according to which ‘employers shall take into account the interests of workers under the principle of equitable assessment; where the mode of performance is defined by unilateral act, it shall be done so as not to cause unreasonable disadvantage to the worker affected’. The other regulatory case study is from transnational soft law: the concept of risk-based ‘due diligence’ enshrined in many global soft law standards (such as the UN Guiding Principles on Business and Human Rights, and OECD Guidelines for Multinational Enterprises). Although these examples are different in many respects (hard vs soft, national vs transnational), they share important features: as normative ‘benchmarks’, they try to influence employer decision-making and they are difficult to implement. One of the assumptions of the article is that mostly the ‘essence’ (i.e.: goal, aim, relevance, ‘marketing’, uptake, etc.) of a given open norm is what matters most for its overall impact, rather than the legal form in which it is manifested. The regulatory case studies are intended to support this argument and draw general conclusions about the possible operationalization of open-textured norms, manifested in hard or soft laws. The conclusions bring together the author’s two main fields of research: the enforcement of national (Hungarian) labour law, and the effectiveness of transnational private/hybrid labour law.