National Soft Law as a Legal Phenomenon and a Tool for Increasing Stability of Legislation

Abstract

The subject of the study is the phenomenon of soft law in relation to national law. The purpose of the study is to analyze this phenomenon and identify its essence, role and place, as well as its impact on legal stability. The methodological apparatus of the article is formed on the basis of methods of formal logic, system and structural analysis, thought experiment, methods of legal forecasting and interpretation of legal norms, modeling using ideal models, comparative analysis and extrapolation. Based on the analysis of current achievements of foreign and domestic scientific thought, the signs of soft law are identified and systematized, allowing it to be distinguished from both traditional law and non-legal phenomena. This analysis is carried out in the context of updating the category of “soft law”, which has been widely studied in relation to international relations, to national legal systems. The author’s definition and classification of soft law are proposed, the phenomenon of “legal legitimacy” and the determinants of the creation of soft law are revealed. The conclusion is formulated that in order to recognize the soft-legal essence of the norm, it is necessary that it, without possessing at least one of the mandatory features of the norm of traditional law, most often mandatory normativity, be able to generate indirect legal consequences or significant consequences of a non-legal nature. Some official documents are also considered, which are widely represented in the domestic legal regulation and can be designated as acts of national soft law. An attempt has been made not only to postulate their special status, but also to justify the presence of signs of soft law in them. According to the results of the study, it is possible to declare the presence of such signs in official explanations, planning documents and acts of a recommendatory nature. The influence of such documents on the stability of Russian legislation is also considered. Their significant potential in this area has been revealed, since acts of national soft law, firstly, have greater stability in themselves than acts of traditional law, and secondly, they allow avoiding additional changes in legislation.
For citation: Usenkov I. A. (2022) National Soft Law as a Legal Phenomenon and a Tool for Increasing Stability of Legislation. Law. Journal of the Higher School of Economics, vol. 15, no 1, pp. 28–58 (in Russ.). DOI:10.17323/2072-8166.2022.1.28.58.