Soft Law and Courts: Saviours or Saboteurs of the Rule of (Soft) Law?

The ubiquitous presence and significance of soft law instruments at all levels of governance has sparked a debate about their legitimacy and compliance with due process norms and various sets of democratic credentials. Against this background, it is not then surprising that courts are often called in to help with saving the rule of (soft) law. However, this chapter shows that when courts engage with soft law, they find themselves on slippery ground and subject to criticism both from those who think that courts do not do enough and those who think that they already do too much. After introducing the elements of the rule of (soft) law, this chapter discusses the complex pull between views for ‘more’ and ‘less’ courts, identifying and analysing four sets of arguments which have been brought for and against the courts’ engagement with soft law. The purpose here is not to settle the issue, rather, our aim in this chapter is more modest. Distinguishing various arguments helps with organizing the discussion around courts and soft law and provides insights for a discussion to envisage what the proper role of courts should be.