Softness in International Law: A Self-Serving Quest for New Legal Materials

Abstract

The concept of soft law which rests on the idea that the binary nature of law is ill-suited to accommodate the growing complexity of contemporary international relations has been endorsed by a large number of scholars. It has however remained under the attack of those that are commonly portrayed as positivists. Although it does not seek to rehabilitate positivism as a whole, this paper will try to offer a refreshed and modernized account of the positivist objection to soft law. It will accordingly distinguish several types of softness. Such a dichotomy will help unravel the underlying agenda of some of the staunchest supporters of the concept of soft law. The paper will ultimately expound on the proneness of international legal scholars to stretch the limit of their object of study by constantly seizing materials outside the realm of international law in order to alleviate the strain inherent to the contemporary proliferation of international legal thinking.

Keywords: International Law, Soft Law, Treaty, Customary International Law, Sources of International Law, Legal Theory, Article 38, Pacta Sunt Servanda, Secondary Rules, International Law-Making, Formalism, Positivism