by Dr. Lance B. Eliot
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Key briefing points about this article:
- Soft law is oftentimes a precursor to officially formalized hard laws
- The arising of soft law tends to occur when shoring up new domains or innovations
- A slew of soft law has emerged in the burgeoning field of AI
- Arizona State University (ASU) College of Law has established a database of soft law about AI
- This database is a veritable treasure trove, publicly available, and can be sliced-and-diced
Some would contend that there is the law and then there is everything else. You’ve likely heard that well-worn line before. It is certainly eye-catching and memorable.
What makes the catchphrase especially interesting is that somewhere in that morass is so-called soft law, sitting somewhat in a no man’s zone. Yes, there is a nebulous grey area that is not quite a law and yet oftentimes provides a law-like shaping and tonal directive toward what we can do, including whether our actions are seemingly lawful or ostensibly could veer into becoming unlawful. This mushy realm is commonly known as soft law.
It is said that soft law at times provides the seeds for the formation of future on-the-books hard laws. In a sense, soft law is floated around and if it gets enough traction then the odds are that official regulations and more formal law will be enacted based on those tried out precepts.
The malleability of soft law is a great strength and simultaneously a potential weakness. As a strength, soft laws can be changed and refined readily. No big hassle, no need to jump through a lot of arduous hoops. Adjustments can be made, remade, and altered time and again. You could argue that this is a big plus since soft law can iteratively be improved until it is finally ripened to be turned into conventional law.