Soft Law, Justiciability, and the Rule of Law

The justiciability of soft law is a demand of the rule of law, understood as “articulated governance” (Waldron 2013): the normative impact of power must be channelled, exposed, and controlled by structuring its exercise through a sequence that encompasses, and differentiates, the phases in which that impact takes shape – norm-production, application, and scrutiny. Within this sequence, courts occupy a central position, serving as a crucial node of control over power’s normative impact in relation to particular cases. Soft law too, insofar as it has normative influence, must be “articulated” in these terms and, thus, subject to judicial scrutiny. The aim is not to convert soft law into hard law, but to render visible, and subject to public scrutiny, the normative force it exerts.