A Fuller Understanding of Legal Validity and Soft Law

B.M.J. van Klink, O.W. Lembcke

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Soft law appears to be the ‘bastard child’ of law. Because of its dubious origin, soft law is not officially recognized, in positivist conceptions of law, as legally valid law. At the same time, the legal relevance of soft law is hard to deny. Soft law does generate rights and duties which the parties at hand, and even sometimes state officials too, perceive as legally binding. How to make sense of soft law? Is it law or non-law, or something in between, law that is emerging or not yet law? Is it really soft and, if so, in what sense? In this chapter, two different approaches to legal validity and soft law will be confronted with each other. Firstly, we will present Kelsen’s conception of legal validity, which still is one of the prevailing positivist conceptions and very close to the traditional lawyer’s internal perspective on law. Secondly, we will discuss the interactionist theory of legal validity, as developed by Lon L. Fuller. Finally, the two opposing approaches will be compared and evaluated. Building on an interactionist approach, we will explore how we can account for the legal relevance of soft law, without rejecting it all too easily as non-law.
Original languageEnglish
Title of host publicationLegal Validity and Soft Law
EditorsPauline Westerman, Jaap Hage, Stephan Kirste, Anne Ruth Mackor
Place of PublicationCham
Number of pages20
ISBN (Electronic)9783319775227
ISBN (Print)9783319775210, 9783319775234
Publication statusPublished - Dec 2018

Publication series

NameLaw and Philosophy Library
ISSN (Print)1572-4395
ISSN (Electronic)2215-0315


  • Validity
  • soft law
  • Lon L. Fuller
  • Hans Kelsen
  • Fact/value diversity


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