About The Workshop
SW 103– Delegating the Future: Soft Law, Democratic Legitimacy, and the Governance of Artificial Intelligence
Convenors:Andrea Bertolini; Elisa Stracqualursi
Contact: andrea.bertolini@santannapisa.it; elisa.stracqualursi@jus.unipi.it
The governance of artificial intelligence has become one of the defining regulatory challenges of our time. Across jurisdictions, legislatures have responded to this challenge by enacting broad, principle-based frameworks that deliberately avoid technical specificity – delegating the task of substantive norm-setting to guidelines, recommendations, codes of practice, and other soft law instruments issued by administrative bodies, expert agencies, and international organisations.
This delegation is not merely a pragmatic accommodation to technological complexity. It reflects a structural choice about who holds normative power in the digital age: not parliaments, but the institutions that draft the guidelines; not ordinary legislative procedures, but opaque expert processes; not democratically accountable actors, but bodies whose legitimacy rests on technical authority alone. The result is a form of governance in which the most consequential decisions – about what AI systems may do, to whom, and under what conditions – are made outside the channels through which liberal legal orders traditionally authorise the exercise of public power.
This workshop examines that structural choice. Its starting point is the observation that soft law in AI governance is not simply an instrument operating at the margins of the legal system: it has become, in several regulatory frameworks, the primary vehicle through which legal obligations are defined, applied, and enforced. This raises foundational questions of legal theory and democratic legitimacy that existing scholarship has only begun to address.
The workshop takes the EU Artificial Intelligence Act and the Digital Omnibus on AI
