We have analyzed the spectrum of international legalization from soft informal agreements
through intermediate blends of obligation, precision, and delegation to hard
legal arrangements. Although even hard international law does not approach stereotypical
conceptions of law based on advanced domestic legal systems, international legalization nevertheless represents a distinctive form of institutionalization. Ultimately,
we can only understand the inclination of actors to cast their relations in legal
form, and the variety of ways in which they do so, in terms of the value those institutional
forms provide for them. Put plainly, international legalization is a diverse
phenomenon because it helps a diverse universe of states and other actors resolve
diverse problems.
Legalization reflects a series of trade offs. States are typically torn between the
benefits of hard legalization—for example, mitigating commitment and incomplete
contracting problems—and the sovereignty costs it entails. For their part, private
actors generally seek hard legal arrangements that reflect their particular interests
and values, but these demands often con ict with those of other private actors or of
governments.In settingslike these,soft legalizationhelps balance competing considerations,
offering techniques for compromise among states, among private actors,
and between states and private actors. In addition, soft law helps actors handle the
exigencies of uncertainty and accommodate power differentials.
Our analysis necessarily combines the rational incentives associated with ‘‘contracts’’
and the normative considerations associated with ‘‘covenants.’’ Legalization
is a strategy through which actors pursue their interests and values; it also supplies a
body of norms and procedures that shape actors’ behavior, interests, and identities.
Thus, though we premise our analysis on the notion of actors rationally pursuing
goals, we argue that they do so knowing that legalization embeds them in a partially
autonomous process and discourse that constrains their behavior and may modify
important understandings. The wariness with which states regard the prospect of
enmeshment in such normative processes is testimony to the power of legalization—
soft and hard.
More generally, the many forms of legalization remind us that international politics
and international law are not alternative realms, but are deeply intertwined. Although
one goal of law—as of institutions in general—is to settle key issues so that
actors can regularize their interactions,the creation and development of legal arrangements
is highly political. This is especially true in the international sphere, where
most legal regimes are relatively new and undeveloped. Politics permeates international
law and limits its autonomy.
Conversely, international politics is rooted in legal considerations. From the principles
of sovereignty that define modern nation-states, through the rules of diplomacy,
war, and commerce that structure their interactions, to the specific regimes
they create, legalized agreements and normative processes guide and constrain the
behavior of states. Without this foundation in law, neither states nor analysts could
make sense of international interactions.
The deep connection of law and politics is most apparent in the area of delegation.
States almost never delegate authority to independent courts of general and mandatory
jurisdiction like those of advanced domestic legal systems—although more constrained
judicial delegation appears to be increasing and is supplemented in many
cases by the participation of national courts. More typically, even in connection with
binding legal commitments, they delegate authority only to international organizations or other administrative bodies subject to direct and indirect controls.This choice
of venue limits the extent to which interactions can be governed by purely legal
procedures and discourse.
In forecasting the future of international legalization, we subscribe to the theories
of neither Pollyanna nor Chicken Little. To be sure, the twentieth century and especially
the period following World War II witnessed a remarkable expansion of international
legalization.But in large part that growth merely allowed international institutions to
catch up with the dramatic changes in globalization (ne´e interdependence)
that had overtaken the inherited framework. It does not follow that international
legalization will continue at the same rate, or that the apparent tendency toward
(somewhat) harder legalization will continue. Indeed, a central part of our argument
is that states and non state actors can achieve many of their goals through soft legalization
that is more easily attained or even preferable.
In this light,we argue vigorously against those who discount international legalization
because it is so often soft. Soft law is valuable on its own, not just as a steppingstone
to hard law. Soft law provides a basis for efficient international ‘‘contracts,’’ and it helps create normative ‘‘covenants’’ and discourses that can reshape international
politics. International legalization in all its forms must be considered one of
the most significant institutional features of international relations.