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Journal articles on the topic 'Hard law'

Author: Grafiati

Published: 4 June 2021

Last updated: 11 March 2023

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1

Lasinski-Sulecki, Krzysztof. "Is Soft Law Making Hard Law Too Hard?" Global Trade and Customs Journal 17, Issue 4 (March 1, 2022): 171–76. http://dx.doi.org/10.54648/gtcj2022022.

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Soft laws are created for many reasons to serve various purposes. This article focuses on acts of soft law that are adopted to facilitate the process of applying hard law (or complying with it) and to standardize the understanding of international agreements. In the field of customs law, one can point, for instance, to opinions adopted by the World Customs Organisation. The Organisation for Economic Co-operation and Development (the OECD) Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations and the Commentary to the OECD Model Tax Convention on Income and on Capital are globally recognized examples of the tax arena. The side effects of the application of acts of soft law in the fields of tax law and customs law are presented and analysed. Interpretative problems are observed at the international level, whereas clear-cut side effects often occur domestically. customs classification – World Customs Organisation (WCO) – double taxation conventions – Organisation for Economic Co-operation and Development (the OECD) – Model OECD – OECD Transfer Pricing Guidelines – OECD Commentary – interpretation

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2

Ryan, Cheyney. "The Hard Hand of War." Law and Philosophy 37, no. 3 (December 1, 2017): 269–87. http://dx.doi.org/10.1007/s10982-017-9319-z.

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3

Schneider, Carl E. "At Law: Hard Cases." Hastings Center Report 28, no. 2 (March 1998): 24. http://dx.doi.org/10.2307/3527568.

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4

Zhao, Lijun. "Soft or Hard Law." International Organizations Law Review 11, no. 1 (December 2, 2014): 172–227. http://dx.doi.org/10.1163/15723747-01101006.

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Historically, international regimes regulating maritime transport have aimed to develop uniform rules. However, these rules are relatively static and have been implemented differently based on different national understandings in a de-centralised, State-based manner. This article argues that greater global uniformity in maritime transport rules could be achieved through the framework of the World Trade Organization (‘wto’). The wto could update these rules dynamically, and could also enforce them. A wto-based negotiating forum could generate substantive, uniform seaborne cargo rules in two ways. Through a selective referral approach, it could incorporate the existing rules — including the un-administered rules — within the wto framework. It could also develop new uniform rules. The wto also provides international communities with a quasi-judicial procedure — the wto dispute settlement mechanism (‘dsm’) — which could also be used to protect and promote the global uniformity of seaborne cargo rules. Such an approach could further reduce divergent interpretations of uniform transport rules by providing a centralised system for the implementation of those rules.

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5

Weber, Rolf. "Overcoming the hard law/soft law dichotomy in times of (financial) crises." Journal of Governance and Regulation 1, no. 1 (2012): 8–14. http://dx.doi.org/10.22495/jgr_v1_i1_p1.

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Traditional legal doctrine calls for hard law to regulate markets. Nevertheless, in financial markets, soft law has a long tradition, not at least due to the lack of multilateral agreements in this field. On the one hand, the recent financial crisis has shown that soft law does not suffice to avoid detrimental developments; on the other hand, a straight call for hard law would not be able to manage the recognized regulatory weaknesses. Therefore, emphasis should be put on the possibilities of combining hard law and soft law; specific areas allowing realizing such kind of “combination” are organizational issues, transparency requirements, and dispute settlement mechanisms.

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6

Craig, Elizabeth. "From soft to hard law?" Focaal 2010, no. 56 (March 1, 2010): 35–48. http://dx.doi.org/10.3167/fcl.2010.560103.

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This article explores the use of soft law by those involved in the drafting of a Bill of Rights for Northern Ireland, drawing in particular on the author's experiences as legal adviser to the Culture, Identity, and Language Working Group of the Northern Ireland Bill of Rights Forum. The article reflects on the extent to which the Council of Europe's Framework Convention for the Protection of National Minorities 1995 and other relevant international instruments can be considered as forms of international soft law. It then highlights controversies that have arisen in debates over the content and scope of provisions addressing culture, identity, and language issues in any future Bill of Rights for Northern Ireland.

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7

Ferguson, Lucinda. "Hard divorces make bad law." Journal of Social Welfare and Family Law 39, no. 3 (July 3, 2017): 364–67. http://dx.doi.org/10.1080/09649069.2017.1344398.

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8

Molloy, T., and T. Graham. "Hard cases and bad law." Trusts & Trustees 17, no. 9 (October 1, 2011): 803–6. http://dx.doi.org/10.1093/tandt/ttr126.

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9

Brazier, M. "Hard cases make bad law?" Journal of Medical Ethics 23, no. 6 (December 1, 1997): 341–43. http://dx.doi.org/10.1136/jme.23.6.341.

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10

Maclean, Mavis. "Family law in hard times." Journal of Social Welfare and Family Law 33, no. 4 (December 2011): 309–10. http://dx.doi.org/10.1080/09649069.2011.632882.

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11

Dresser, Rebecca. "At Law: Schiavo: A Hard Case Makes Questionable Law." Hastings Center Report 34, no. 3 (May 2004): 8. http://dx.doi.org/10.2307/3528413.

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12

Lahusen, B. "Vom hard law zum soft law und wieder zurück?" KUR - Kunst und Recht 24, no. 3-4 (2022): 91–97. http://dx.doi.org/10.15542/kur/2022/3-4/3.

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13

Patterson, Carol J. "Feature: Hard Cases Make Bad Law." Journal of Management in Engineering 12, no. 3 (May 1996): 25–28. http://dx.doi.org/10.1061/(asce)0742-597x(1996)12:3(25).

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14

McNicol, Suzanne B. "A Hard Look at Holism and Consequentialism in Hard Cases." Federal Law Review 15, no. 3 (September 1985): 169–205. http://dx.doi.org/10.1177/0067205x8501500302.

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In any field of law … there may arise the rare “landmark” case in which a court, usually a final appellate court, concludes that the circumstances are such as to entitle and oblige it to reassess the content of some rule or set of rules in the context of current social conditions, standards and demands and to change or reverse the direction of the development of the law.1

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15

Junesun Choi. "Selection of Corporate Governance Model - Hard Law vs. Soft Law -." SungKyunKwan Law Review 24, no. 2 (June 2012): 597–617. http://dx.doi.org/10.17008/skklr.2012.24.2.023.

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16

Olivas, Michael A. "Hard Cases, Hard Times: Reflections on Preparing a Higher Education Law Text." Teaching Education 2, no. 2 (December 1988): 22–27. http://dx.doi.org/10.1080/1047621880020205.

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17

Abbott, Kenneth W., and Duncan Snidal. "Hard and Soft Law in International Governance." International Organization 54, no. 3 (2000): 421–56. http://dx.doi.org/10.1162/002081800551280.

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We examine why international actors—including states, firms, and activists—seek different types of legalized arrangements to solve political and substantive problems. We show how particular forms of legalization provide superior institutional solutions in different circumstances. We begin by examining the baseline advantages of “hard” legalization (that is, precise, legally binding obligations with appropriate third-party delegation). We emphasize, however, that actors often prefer softer forms of legalization (that is, various combinations of reduced precision, less stringent obligation, and weaker delegation). Soft legalization has a number of significant advantages, including that it is easier to achieve, provides strategies for dealing with uncertainty, infringes less on sovereignty, and facilitates compromise among differentiated actors.Although our approach is largely interest-based, we explicitly incorporate the normative elements that are central in law and in recent international relations theorizing. We also consider the important role of nonstate actors who, along with states, are central participants in contemporary international legalization. We illustrate the advantages of various forms of international legal arrangements with examples drawn from articles in this special issue and elsewhere.

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18

Boehmer, Charles, and Renato Corbetta. "Hard International Law-Contributing Organizations as Networks." Peace Economics, Peace Science and Public Policy 22, no. 4 (December 1, 2016): 413–26. http://dx.doi.org/10.1515/peps-2016-0031.

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AbstractThis paper explores the networks that intergovernmental organizations (IGOs) create in the international system and explore how states relate to each other in such networks. It focuses in particular on the network of IGOs that act as creators of and agents for hard international law. We introduce new data that allows us to investigate which institutional traits and functions are most closely related to IGOs’ contribution to the implementation and enforcement of informal international law. We map out and explore the network of “highly legalized” IGOs for the years 1980–2005 as well as the affiliation networks emerging from states’ membership in such IGOs. Combining international relations theory with network theory, we raise novel hypotheses on the potential impact of highly legalized IGO networks on states’ conflict behavior and peace.

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19

DeBenedictis, Erik P. "Moore's Law: A Hard Act to Follow." Computer 52, no. 12 (December 2019): 114–17. http://dx.doi.org/10.1109/mc.2019.2941719.

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20

Strzałka, Dominik, and Piotr Szurlej. "Power-Law Distributions in Hard Drive Behavior." Journal of Software Engineering and Applications 04, no. 12 (2011): 710–17. http://dx.doi.org/10.4236/jsea.2011.412083.

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21

Cominetti, Marta, and Peter Seele. "Hard soft law or soft hard law? A content analysis of CSR guidelines typologized along hybrid legal status." uwf UmweltWirtschaftsForum 24, no. 2-3 (November 2016): 127–40. http://dx.doi.org/10.1007/s00550-016-0425-4.

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22

Pfeifer, Guido. "(No) Hard Feelings!" Rechtsgeschichte - Legal History 2019, no. 27 (2019): 296–97. http://dx.doi.org/10.12946/rg27/296-297.

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23

Harris, Cheryl I., Lani Guinier, and Gerald Torres. "Mining in Hard Ground." Harvard Law Review 116, no. 8 (June 2003): 2487. http://dx.doi.org/10.2307/1342769.

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24

Barnard, Catherine. "A Hard Day's Work." Cambridge Law Journal 56, no. 1 (March 1997): 43–46. http://dx.doi.org/10.1017/s0008197300017694.

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25

Langille, Brian. "Hard Law Makes Bad Cases: The International Labour Organization (Nervously) Confronts New Governance Institutions." International Journal of Comparative Labour Law and Industrial Relations 32, Issue 4 (December 1, 2016): 407–23. http://dx.doi.org/10.54648/ijcl2016021.

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The struggle between hard and soft law for the attention of labour lawyers is ongoing and the results are mixed and controversial. The title for this article is a play on the common lawyers’ somewhat dubious saying: ‘hard cases make bad law’. My point is I think a better one: insisting upon hard law when that is neither desirable nor possible is a recipe for bad results in concrete cases. My view is also that this debate about hard and soft law is very unhelpful unless it is placed in the clear light of a good answer to the question ‘what is international labour law for?’. Only when we have understood what the task at hand really is can we address the question of what tools we need to deal with it. This article uses two sorts of recent controversies at the ILO (labelled ‘internal’ and ‘external’) to explore labour law’s current hard/soft dilemma.

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26

Skjærseth, Jon Birger, Olav Schram Stokke, and Jørgen Wettestad. "Soft Law, Hard Law, and Effective Implementation of International Environmental Norms." Global Environmental Politics 6, no. 3 (August 2006): 104–20. http://dx.doi.org/10.1162/glep.2006.6.3.104.

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The article compares the interplay between soft law institutions and those based on hard law in international efforts to protect the North Sea, reduce transboundary air pollution, and discipline fisheries subsidies. Our cases confirm that ambitious norms are more easily achieved in soft law institutions than in legally binding ones, but not primarily because they bypass domestic ratification or fail to raise concerns for compliance costs. More important is the greater flexibility offered by soft law instruments with respect to participation and sectoral emphasis. Second, ambitious soft law regimes put political pressure on laggards in negotiations over binding rules, but this effect is contingent on factors such as political saliency and reasonably consensual risk and option assessment. Third, hard-law instruments are subject to more thorough negotiation and preparation which, unless substantive targets have been watered down, makes behavioral change and problem solving more likely. Finally, although most of the evidence presented here confirms the implementation edge conventionally ascribed to hard law institutions, the structures for intrusive verification and review that provide part of the explanation can also be created within soft law institutions.

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27

Kocher, Eva. "Private Standards between Soft Law and Hard Law: The German Case." International Journal of Comparative Labour Law and Industrial Relations 18, Issue 3 (September 1, 2002): 265–80. http://dx.doi.org/10.54648/5100074.

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Codes of Conduct or private standards by transnational enterprises on the compliance of social minimum standards in production have a legal character, although they are usually not meant to be legally binding. Their legal character derives from their integration into private contracts on the one hand, and from the legal context of competition and consumer law on the other. We can realize this when we, for example, take a closer look at the German legal context. Legal theory should accept these private standards as a way of broadening the public debate over regulation of economic activity into a public discourse on legal standards. Legislation could also help by establishing a more specific and outspoken legal framework.

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28

Pečarič, Mirko. "Soft Law – The Intermediate Stage Between Freedom and Control." DANUBE 13, no. 1 (March 1, 2022): 42–66. http://dx.doi.org/10.2478/danb-2022-0004.

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Abstract The soft law is placed on a scale between freedom and control, autonomy, and hard law. At first sight, it falls short of building elements known in the legal principles of law, like transparency, certainty, and predictability, but on the other hand, it is needed to address areas where complexity reigns, where flexibility is needed, where hard law is too hard, invasive, and inappropriate to achieve more distant goals. As soft law can have not only practical but also legal effects, this paper analyses the basic elements of soft law, its practice in the US, France, and the EU and gives pro et contra arguments to be able to recognise it as such and to apply it on a more objective manner. This can be done with the help of the manifest error standard of the judiciary, its structure, and the help of participatory collective wisdom. A first step could be the use of the evidentiary standard of manifest error as a possible solution for the most effective soft law (a la “Turing style”), after which the structure and collective wisdom follow. When the principle of loyal cooperation among institutions is established, the soft law hardens more and more into clay and/or hard law. It thus matters who, when, how, and why to enact the soft law.

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29

Hicks, Lanis L. "Making Hard Choices." Journal of Legal Medicine 32, no. 1 (February 28, 2011): 27–50. http://dx.doi.org/10.1080/01947648.2011.550825.

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30

Cunningham, Clark D., Judith N. Levi, Georgia M. Green, Jeffrey P. Kaplan, and Lawrence M. Solan. "Plain Meaning and Hard Cases." Yale Law Journal 103, no. 6 (April 1994): 1561. http://dx.doi.org/10.2307/797094.

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31

Luxton, Peter. "Ethical Investment in Hard Times." Modern Law Review 55, no. 4 (July 1992): 587–93. http://dx.doi.org/10.1111/j.1468-2230.1992.tb00937.x.

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32

Duus-Otterström, Göran. "Betting Against Hard Determinism." Res Publica 14, no. 3 (September 2008): 219–35. http://dx.doi.org/10.1007/s11158-008-9059-x.

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33

Bakan, Joel C., and D. Dyzenhaus. "Some Hard Questions about the Hard Cases Question." University of Toronto Law Journal 42, no. 4 (1992): 504. http://dx.doi.org/10.2307/825794.

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34

Lasiński-Sulecki, Krzysztof. "OECD Guidelines. Between Soft-Law and Hard-Law in Transfer Pricing Matters." Comparative Law Review 17 (December 1, 2014): 64. http://dx.doi.org/10.12775/clr.2014.003.

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35

Gyeney, Laura. "Hard and Soft Law in EU’s Integration Policy." Hungarian Yearbook of International Law and European Law 6, no. 1 (December 2018): 149–75. http://dx.doi.org/10.5553/hyiel/266627012018006001009.

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36

Baccelli, Luca. "Los Derechos Entre Hard Powers Y Soft Law." Soft Power 01, no. 02 (January 2016): 32–47. http://dx.doi.org/10.17450/150203.

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37

Shahshahani, Sepehr. "Hard Cases Make Bad Law? A Theoretical Investigation." Journal of Legal Studies 51, no. 1 (January 1, 2022): 133–75. http://dx.doi.org/10.1086/718207.

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38

Tollefson, Jeff. "America's long hard road to climate-change law." Nature 458, no. 7236 (March 2009): 266–67. http://dx.doi.org/10.1038/458266a.

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39

Doherty, Michael. "Hard law, soft edge? Information, consultation and partnership." Employee Relations 30, no. 6 (October 3, 2008): 608–22. http://dx.doi.org/10.1108/01425450810910019.

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40

Hinaus, Brad, and Mick Veum. "The Hard Drive: an Experiment for Faraday’s Law." Physics Teacher 40, no. 6 (September 2002): 339–41. http://dx.doi.org/10.1119/1.1511589.

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41

Burchfield, Bobby R., and Robert K. Kelner. ""Great Cases, Like Hard Cases, Make Bad Law"." Election Law Journal: Rules, Politics, and Policy 3, no. 2 (June 2004): 211–16. http://dx.doi.org/10.1089/153312904322907739.

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42

McKenna, Brian. "PKI dies hard." Computer Fraud & Security 2004, no. 7 (July 2004): 3. http://dx.doi.org/10.1016/s1361-3723(04)00084-3.

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43

Zygmunt, Tomasz J. G. "An intuitive approach to hard cases." Utrecht Law Review 16, no. 1 (2020): 21–38. http://dx.doi.org/10.36633/ulr.505.

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44

George, Robert P. "Gratz and Grutter: Some Hard Questions." Columbia Law Review 103, no. 6 (October 2003): 1634. http://dx.doi.org/10.2307/3593397.

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45

Ansolabehere, Stephen, and James M. Snyder. "Soft Money, Hard Money, Strong Parties." Columbia Law Review 100, no. 3 (April 2000): 598. http://dx.doi.org/10.2307/1123496.

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46

Hey, Ellen. "Hard Law, Soft Law, Emerging International Environmental Law and the Ocean Disposal Options for Radioactive Waste." Netherlands International Law Review 40, no. 03 (December 1993): 405. http://dx.doi.org/10.1017/s0165070x00009645.

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47

Statman, Daniel. "Hard Cases and Moral Dilemmas." Law and Philosophy 15, no. 2 (1996): 117. http://dx.doi.org/10.2307/3504826.

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48

Statman, Daniel. "Hard cases and moral dilemmas." Law and Philosophy 15, no. 2 (1996): 117–48. http://dx.doi.org/10.1007/bf00144130.

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49

Choudhury, Barnali. "BALANCING SOFT AND HARD LAW FOR BUSINESS AND HUMAN RIGHTS." International and Comparative Law Quarterly 67, no. 4 (July 9, 2018): 961–86. http://dx.doi.org/10.1017/s0020589318000155.

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AbstractIn the wake of increasing corporate disasters, there has been an urgent need to address the impact of business on human rights. Yet business responsibilities for human rights are mainly voluntary and best understood as ‘soft law’. Recently, however, States have begun negotiations for an internationally binding treaty in this area, suggesting that there is a need to turn to ‘hard law’ to increase the efficacy of business and human rights (BHR) initiatives. This article argues that because soft and hard law concepts are not dichotomous, BHR governance need not become ‘hard law’ to be effective. Rather ‘hardened’ soft law instruments can be equally effective.

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50

Bernstein, Jeffrey. "Between a Rock and a Hard Place." Potentia: Journal of International Affairs 2 (October 1, 2010): 23–38. http://dx.doi.org/10.18192/potentia.v2i0.4374.

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The present recurrence of mass atrocity crimes, though shocking, is nothing new. With conflict raging in the Democratic Republic of Congo, Myanmar, Sudan, and elsewhere, why have actors or coalitions outside the authority of the United Nations not emerged to exercise a credible deterrent and halt the bloodshed? Much of the answer lies within the framework of international law. This article seeks to understand whether the law serves as constrainer or enabler of unauthorised humanitarian interventions. I argue that the integrity of international law is best preserved by maintaining the illegality of unauthorised, militarily-coercive interventions. Simultaneously I posit that states should take the coercive actions necessary to end large-scale killing and that their actions should be considered and authorised, ex post facto, by the Security Council based on contextual “exceptionality.”

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