Which Future for the Scholarly Concept of Soft International Law? Editors’ Introductory Remarks

Abstract

Engaging with a mundane topic like the softness of international law may certainly look surprising to the readership of a journal known for its avowed and constant quest for an intellectually and conceptually rigorous ‘off-Broadway’ scholarship. Why would a journal that tries to establish itself as a leading alternative voice in the field replay a comedy so often staged in mainstream scholarship? It is with the full awareness of such an anticipated feeling of déjà vu that the editors of the Leiden Journal of International Law have decided to open the ensuing pages to an oft-debated topic with the ambition of evaluating the possibility of transcending the traditional pitched battle between opponents and advocates of soft law. It is well known that, after the juvenile success of the concept1 and its embrace by a great number of international scholars, soft law became the object of severe criticisms, resulting in a chasm in the international legal scholarship. Indeed, the debate about soft law came to literally split authors into two camps, firmly pitted against one another. On the one hand, there are the advocates of the notion for whom the binary nature of law is incapable of explaining the complexity of the international exercise of public authority in a pluralized world2 or who see soft law as an instrument of (programming of the) development of hard law.3 These apostles of the notion of soft law are opposed by those who see the notion as redundant because it turns into either hard law or not law at all,4 it is self-serving for the profession,5 it is dangerously deformalizing our instruments of law ascertainment,6 or it is weakening the general authority of law.7 The fierce character of that confrontation originates in soft law's being intrinsically intertwined with one's core and inner understanding of (international) law, thereby making these discrepancies seem irreconcilable.