Fuzzy law: A theory of quasi-legality

Law is everywhere. We are exposed to multifarious forms of legality, which permeate ever more realms of our social lives. In this extensively juridified world, quasi-legal or “soft law” schemes occupy an important place. Quasi-legal schemes can be found in such diverse fields as transnational environmental governance, administrative best practice guidelines, corporate codes of conduct, ethical clinical codes, and the regulation of academic life. The prevalence of these multiple quasi-legal structures poses a challenge for legal theory. What exactly is the nature of the norms elaborated in these quasi-legal environments? How should we conceptualize the priority relations between soft legal norms and non-legal reasons, and between competing soft legal norms? What is the dynamic of deliberation or argumentation in social contexts involving quasi-legal norms? Traditional legal theory has failed to produce a theory that adequately captures the structure and dynamics of quasi-legal systems. To a large extent, this failure reflects traditional legal theory’s continued commitment to a binary conception of law which views the phenomenon of law through the binary frames of lawlessness and complete legality (lawlessness/lawfulness). The article responds to this challenge by developing a theory of quasi-legality which I term “fuzzy law.” Quasi-legal structures that lie between the poles of lawlessness and complete legality represent an increasingly prevalent phenomenon, which challenges the either/or approach of legal positivism. The article addresses this conceptual challenge by developing a theory of fuzzy law. The model embraces two critiques of the binary framework of traditional legal theory. The first critique is conceptual: drawing on the extensive philosophical study of the notion of vagueness, the article argues that more consideration should be given to the possibility of reinterpreting the fundamental concepts of legal theory (e.g., validity, bindingness) in a nuanced fashion. The second critique is empirical: the article argues that the binary model fails to satisfactorily account for the deliberative and institutional dynamics underlying the diverse legal-like phenomena documented by the soft law literature. The model of fuzzy law replaces the either/or framework that has dominated traditional legal theory with a dynamic framework based on a degree-theoretic interpretation of legal normativity. The model is built on three theoretical pillars: the theory of complementary pairs (TCP), developed by Scott Kelso and David Engstrom; fuzzy-set theory; and the concept of defeasible reasoning.