1. Law and soft law in the world of legal pluralism
Beryl ter Haar
14 December 2016

2. Law and soft law in the world of legal pluralism
Global space (or law and soft law)
Hybridity
An example: the ILO core labour standards

3. 1. World of legal pluralism
Globalisation
Goods / products are no longer produced in one country or region of the world only
E.g. clothes; smart phones; etc.
Services are provided from everywhere
E.g. an internet helpdesk is based in Singapore; FB photos are checked in the Philipines; rontgen photo’s are analysed in India; etc.
Persons are moving from one country to another, permanently or temporarily
Consequence:
Various laws are applicable on one product/service/ or person
Similar issues are governed by various legal regimes
=> Legal pluralism

4. 1. World of legal pluralism
Challenges for lawyers – to name some …
Which legal regime should apply?
How and by which legal regime can a situation be regulated?
How do the different legal regimes interact? And what does that mean in practice?
What to do when there is a conflict? Who decides?
2 Theories to help:
Global space
Hybridity

5. 1. World of legal pluralism
Global space => 4 features
diverse and complex challenging law which has to bring uniformity between social systems and legal orders
plural in terms of legal orders (horizontal and vertical) and in terms of participating actors (public and private)
relatively weak and limited in means when it comes to international systems of coercion
a knowledge deficit that is the result of a high degree of uncertainty concerning the optimal solutions to problems

6. 1. World of legal pluralism
Global Space => 2 roles
conventional rule-setting role of (international) law that stresses the enforcement and compliance with fixed rules
Cf hard law
a problem-solving role that emphasises the operation of multi-level networks, the role of experimentation and deliberation in order to internalise open-ended standards.
Cf soft law

7. 2. Law and soft law Law One lawmaker Sets the norm
Commands (has to; must; etc.)
Controls through (third party) judiciaries
Is linear
Soft Law
Multiple stakeholders
Acknowledges the existence of a problem
Consends to solve the problem
Includes governance mechanisms to fosters deliberation, experimentation and participation
Is itterative

8. 3. Hybridity
Hybridity =
The acknowledgement that various regulatory regimes exist in the same dimension (society; legal order; etc.)
About the interaction of the various regulatory regimes in the same dimension, which can be rivalry, complementary, or transformative

9. 3. Hybridity
Rivalry = when the newer forms of governance are designed to perform the same tasks as legal regulation and are thought to do it better, or otherwise involve a necessary choice between systems
Complementary = when each system is operating at the same time and contributing to a common objective but they have not merged
Transformative = configurations in which governance and traditional law are not only complementary; they are integrated into a single system and the functioning of each element is necessary for the successful operation of the other

10. 4. An example: ILO Core Labour Standards
ILO’s core labour standards are:
- Ban on slavery
Ban on child labour
Equal treatment
Right of association and collective bargaining
Regulatory dimension - International (ILO, UN, OECD)
Regional (e.g. Council of Europe)
National (legislation; guidelines)
Transnational
public – e.g. ILO Better work programmes
Private – e.g. CSR codes of conduct; IFAs

11. 4. An example: ILO Core Labour Standards
SupervI
Ruggie
Framework
NCPs
UN GC
OECD
Guidelines
ILO Conventions &
Recommendations
Tripartite
Declaration
1998
Declaration
MULTI
Follow-up
CSR
Codes
NGOs
IFAs

12. Thank you for your attention!
Questions?