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Robert W. Emerson

This chapter examines a myriad of meanings for the terms, ‘hard law’ and ‘soft law’. It applies the terms while analysing franchise relationships and laws. The franchise parties’ understanding of these legal concepts can facilitate their business planning. In tandem, soft law and hard law can work to foster stronger franchise relationships and more effective franchise regulation. The chapter considers the jurisprudence of hard law and soft law: positivism, rationalism, constructivism, and functionalism. It deals with franchise contract terms and termination. In its second section, the chapter proceeds to an in-depth treatment of soft law, including franchise parties’ expectations as well as important franchise elements such as goodwill and know-how. Franchisor disclosure obligations, franchise regulation, and franchising dispute resolution are analysed in the third section along a continuum of legal hardness or softness. After considering franchise business stability and franchise law standards through the lens of hard and soft law in the fourth section, the chapter concludes with an account of hard law’s and soft law’s advantages and disadvantages for both franchisors and franchisees.