Law 3.0 and Soft Law: Beyond Uncertainty

Some legal concepts are general, while many are not general. The latter of the concepts are designed to shape the economic, administrative and sometimes, political priorities of the systems we live with. In this article, let us deconstruct the idea of “Soft law” to understand in basic terms, the ideation behind creating hybrid legal concepts and regulatory systems in the contemporary times we live in.

The “Law” as Known

Instead of getting on the usual understanding of legal theory, and its basics, from the positive law theory to other schools of thought, let us adopt a different method to look at “Law” as something different. When ideas are synthesised, solutions are manifested. In general, the process is not as oversimplified, self-explanatory and charted out as we assume it to be. Often it happens that legalising, in a positive or negative sense or maybe with an active/omissive intent,?a plane of reference and incidence?proliferates, multiplies and complicates/recalibrates with time. For example, the fundamental rules of contract jurisprudence, never change. Yet, as times have changed, the way contracts are understood, surely are not the same, even within a specific legal conundrum. Often the loopholes present and the binding value impugned upon the legal boundaries and extent defined in the documents, reflect the operability of such documents. This can even extend to key legal documents such as constitutions, statutes, rules, regulations, circulars, guidelines and ordinances.

Excerpt from Roger Brownsword’s book “Law 3.0: Rules, Regulation, and Technology” [2020]

According to Prof. Roger Brownsword’s book “Law 3.0: Rules, Regulation and Technology“, the development of Law per se can be assessed, in a modern scheme of things, in 3 stages. An excerpt has been shared above to make a simple reflection.

• Law 1.0 (Coherentism): This generally implies the era of positive law where top-down approaches to law enforcement, administration and interpretation were existent. We can refer to the post-Industrial revolution times as well for a better context.
• Law 2.0(Regulatory-instrumentalist): The stage when Law 1.0 as we know, in fundamental terms, is disrupted due to technological interventions. Yet we see, that technology itself becomes a solution and we go into the times of regulatory-instrumentalism (in a generic sense). Although I can refer to the AI “age”, I would limit here by stating that the sophistication of technology development itself could shape our legal and administrative status quo, in as many effective ways possible. This is also the stage when the emergence of regulatory theory is clearly visible, in as many legal fields as possible.
• Law 3.0(Technocratic): This is the current stage, as of now, where public-private partnerships too shape the way regulators would act, and how laws would affect our day-to-day stakeholders. The potential of technology, regulators and the stakeholders creates the case of?regulation, self-regulation, technology-oriented regulation and collaborative governance, together (there could be more or less similar means). Contrary to popular assertions that the US is a free market economy, the most sophisticated and important programmes, which were utilised by several MNCs and companies, are the gift of the United States Government’s agencies (internet for example).

What is common to observe are the following:

1. The significance of primary and secondary legal documents, which shape a polity per se, in terms of it being subject to constant change, is largely reduced by delegating their authoritative aspect, operationally, to rules, regulations, circulars and other kinds of by-laws. The role of regulatory theory becomes quite worth engaging and their?proximity cum sensitivity?to the incidents and circumstances related to the legal disputes or lacunae, is obviously going to be?more.
2. A new phenomenon becomes mainstream, which in the information age, has its own colors and forms:?stakeholder-ism.?It means that various non-state actors become important stakeholders with time in subtle ways, which include citizens, civil society, companies, start-ups and other relevant actors, for local, provincial, national, transnational, international and global settings as we know. These stakeholders have some subtle role in at least vouching to utilise the potential the proximate and sensitive purpose of regulators at the first place. The relevancy of such stakeholders, of course, has to hold some water, which is a long-term issue in the timeline of regulatory and collaborative governance.
3. Even certain non-regulatory state actors gain relevance, and their approach and methods towards “public interest” are renewed with time, to seek clarity and optimisation towards achieving certain goals and maintaining the status quo, as we see. It depends if they affect the regulatory landscape. Yet, their role in shaping the economics behind the legal and administrative machineries, is intriguing.

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