Genealogies of soft law

The relatively recent blossoming of multiple soft law tools and the calls for a soft harmonization of European private law have invited reflection on the genealogy of soft law. Genealogical arguments have come to play a critical role in the heated European soft law v. hard law debate. While some find the ancestors of soft law in the medieval legal regime and particularly the lex mercatoria, others link soft law to a prolific strand of 19th and early 20th century theories of social law and legal pluralism. At times explicitly invoked, more often implicitly alluded to, the neo-medieval genealogy and the social genealogy perform a crucial ideological function, legitimizing different political and professional agendas of soft harmonization and obfuscating their failures and distributive consequences.