I came across this interesting essay at Concurring Opinions law blawg. It concerns how formal law—laws written in books, enforced by police and the courts—intersects with informal law—behavior determined by culture and community. I think it’s worth reading in full.

As Saudi Arabia approaches codification of its laws as part of comprehensive legal reform, I think the essay has a lot to say about what’s going on. Popular or not, Saudi Arabia is undergoing a massive shift in its perspectives. Issues which a mere 50 years ago were deemed utterly unimportant—workers’ rights, womens’ rights, human rights—are now to the fore. What makes the transition particularly bothersome is that not all Saudis are yet on the same page. There are those whose ‘soft law’ remains based on patterns and systems that proved effective for thousands of years—patriarchy, patron/client relationships, honor/shame personal motivations—while others, the so-called ‘modernists’ or ‘secularists’ see a need for something better integrated with the rest of the world.

“Hard law, soft law and culture in the court room”
Grant McCracken, MIT

Teaching legal anthropology at Cambridge, I used to draw a distinction between hard law and soft law. It’s not a perfect distinction but some students found it clarifying.

Hard law is the body of rules that comes from the deliberations of jurists, legislators and the precedent of legal discourse. It is relatively formal, explicit, and well documented. It is subject to constant scrutiny, test and revision.

Soft law is the body of rules comes from a shifting consensus contained in social life. It prevails in traditional societies where, typically, there is no written record of what the community believes. Instead, there is a shared, deeply assumed set of notions about what is required, what is prohibited, and what punishment is called for when things go wrong. When soft law changes, it often does so by gradual and invisible consensus.

Hard law and soft law represent two kinds of order. Both help regulate social affairs, but clearly they operate in very different ways. As an anthropologist who studies contemporary culture, I am surprised how often these two forms of law are proverbial “ships passing.” We might expect soft law to proceed without a clear concept of the contents of hard law. But it is odd, I think, that hard law should be created and prosecuted as if soft law does not matter…or does not exist.
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