Governance is established and mediated through law; however, the modern conception of law — that it is coextensive with books of statutes adopted by duly authorized, elected legislatures — fails to capture critical dimensions of law and legality as they apply to global governance. In practice, global governance is accomplished by a combination of “hard” and “soft” laws. Hard law, in the form of domestic statutes or international treaties, coexists alongside various forms of soft law, which are less binding, less precise and/or rely on less centralized forms of interpretation and enforcement.
This diversity of legal norms is not an indication that, based on the rule of law, global governance is a poor cousin of domestic government; rather, it is more productively understood as reflecting accumulated practical experience in diplomacy and an attempt to select the right tool for the job. A hammer is not an effective substitute for a wrench; similarly, there are often good reasons why states and other global governance actors prefer soft law over hard, even though soft law certainly lacks some of the considerable advantages of hard law.
It is difficult to change hard laws once they are established. Governments must go through long processes to change or update domestic laws. At the international level, difficulties reaching agreement among culturally heterogeneous parties may make the problems more pronounced. If the parties believe the negotiated agreement will be highly precise, legally binding, and independently adjudicated and enforced, they will bargain hard and may be reluctant to commit at all.
In contrast, the various forms of soft law can allow for greater flexibility in interpretation, making it easier for contracting parties to come to an agreement and effectively lowering sovereignty costs.
Over time, soft law also facilitates learning about the implications of particular kinds of rules and governance arrangements. Newly established rules and laws, especially in an emerging issue area, often have unintended consequences. Soft law instruments, such as voluntary codes of conduct, can allow parties to learn about the effects of potential rules or standards without the costs associated with negotiating and implementing a new hard law.
These insights about the benefits and utility of soft law have important implications for ongoing efforts to improve Internet governance. Like many other areas subject to global governance, the Internet is currently governed by a mix of hard and soft laws at both the domestic and international levels. However, much of the hard law that affects the Internet was developed in and for a pre-Internet world.
The fair use doctrine is a copyright principle based on the belief that individuals are entitled to use portions of copyrighted materials for limited but socially important purposes: to critique, parody or comment on copyrighted work. Fair use, which predates the Internet, was established as a legal defence to protect society from the oppressive exercise of monopoly that can result from strict copyright legislation. In the digital age, however, determining what is “fair” becomes complicated.
Fair use no longer entails simply quoting literary texts for comment in newspapers and magazines. Now that individuals are able to rip, mix and share all kinds of copyrighted materials over the Internet, a grey area has arisen in the definition of “fair.” This is further complicated by popular websites, such as Google and YouTube, that search, archive and display copyrighted material for easy access by users.
Many of the laws governing the Internet were created before its conception, and some actors have tried to fill in the gaps in governance through soft law arrangements in an effort to make basic Internet functions work both quickly and efficiently.
For example, settlement-free peering agreements are voluntary arrangements between Internet networks, such as Rogers and Virgin, allowing the exchange of traffic between network customers free of cost. Such agreements were established ad hoc between Internet service providers to establish an efficient method for Internet users to access websites hosted on different networks.
Other critical Internet governance mechanisms, such as the Domain Name System, were created by largely voluntary organizations with technical rather than legal or political expertise. While states and publics are becoming more interested in (and concerned with) these mechanisms, attention remains nascent.
Trying to work out how to adapt existing bodies of domestic and international law to the Internet is complex. This is further complicated by continuing efforts to improve existing soft law mechanisms in light of an increasing body of knowledge about their effects. However, despite these difficulties, it has become evident that soft law instruments can play an important role in Internet governance.
Soft laws permit a learning curve that could be beneficial since the Internet is a fairly recent phenomenon. In the future, some of these soft law arrangements may be transformed into hard law; however, this should not be understood as the ultimate goal or considered a measure of success. Hard laws and soft laws are two very different but equally important tools used to accomplish certain tasks in societies. As the Internet continues to develop and become more integrated into our lives, it is essential that we select the right tools for the job.