Legal Validity, Soft Law, and International Human Rights Law

This chapter looks at international soft law against the background of broader issues about the normativity of law. It explores the ways in which “institutional normativity” operates across legal systems with special focus on the relationship between different constructs of validity. The chapter develops a narrowly defined “core” concept of validity that reflects the minimum conditions for providing effective normative guidance in institutional settings. This concept revolves around the idea that validity establishes a mediated relationship between the legitimacy of law and the internal processes of legal practices. The chapter argues that more specific constructs of validity are political constructs that reflect the concrete political and institutional dynamics of particular legal practices. This point about the coexistence of different constructs of legality and legal validity is demonstrated by an analysis of the relationship between international law and modern state law. The chapter characterise the proliferation of international soft law as one manifestation of the tensions that this coexistence brings about. The growing volume and significance of international soft law has a lot to do with a constraining model of legality in domestic legal systems which have a spillover effect on international law. Soft law often needs to fill normative spaces that have been made hard to access for hard international law. For a more concrete analysis, issues about international soft law in the field of human rights law are picked out. Using the General Comments of the UN Committee on Economic, Social and Cultural Rights as an example, the chapter looks at the legitimacy problems that the proliferation of soft law generates.