Sweden: Non-binding Rules against the Pandemic – Formalism, Pragmatism and Some Legal Realism
(2021) In European Journal of Risk Regulation 12. p.127-142- Abstract
- Swedish measures to fight the spread of COVID-19 differ from the strategies used in other comparable countries. In contrast to the lockdown approach that has been applied in many European countries, the Swedish strategy has been based to a substantial extent on individuals taking responsibility under non-binding recommendations. This contribution explores the Swedish strategy from a constitutional and administrative law perspective, highlighting the tension between the formalist system for delegating norms under the Swedish Constitution and the pragmatic use of non-binding rules such as the “General Recommendations” adopted by the Public Health Agency. The article concludes that the official use of soft law instruments is confusing from a... (More)
- Swedish measures to fight the spread of COVID-19 differ from the strategies used in other comparable countries. In contrast to the lockdown approach that has been applied in many European countries, the Swedish strategy has been based to a substantial extent on individuals taking responsibility under non-binding recommendations. This contribution explores the Swedish strategy from a constitutional and administrative law perspective, highlighting the tension between the formalist system for delegating norms under the Swedish Constitution and the pragmatic use of non-binding rules such as the “General Recommendations” adopted by the Public Health Agency. The article concludes that the official use of soft law instruments is confusing from a legal perspective, because non-binding rules do not offer the traditional formal mechanisms for legal protection, the publication of norms or accountability. The legal-realist approach of the Supreme Administrative Court’s case law, however, has the potential of balancing some of the unfortunate effects arising from the Swedish combination of formalism and pragmatism. (Less)
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https://lup.lub.lu.se/record/563dce7f-4bab-4cc8-b7ed-2f3e05dd6f79
- author
- Wenander, Henrik LU
- organization
- publishing date
- 2021
- type
- Contribution to journal
- publication status
- published
- subject
- keywords
- Förvaltningsrätt, Allmänna råd, Administrative Law, Soft Law, COVID-19, Legal Realism
- in
- European Journal of Risk Regulation
- volume
- 12
- pages
- 16 pages
- publisher
- Cambridge University Press
- external identifiers
-
- scopus:85104313308
- pmid:34191958
- ISSN
- 1867-299X
- DOI
- 10.1017/err.2021.2
- project
- Den offentliga förvaltningens konstitutionella roll i Norden: demokrati, rättssäkerhet och effektivitet under europeisk påverkan
- language
- English
- LU publication?
- yes
- id
- 563dce7f-4bab-4cc8-b7ed-2f3e05dd6f79
- date added to LUP
- 2021-04-20 09:14:44
- date last changed
- 2022-12-09 00:05:00
@article{563dce7f-4bab-4cc8-b7ed-2f3e05dd6f79, abstract = {{Swedish measures to fight the spread of COVID-19 differ from the strategies used in other comparable countries. In contrast to the lockdown approach that has been applied in many European countries, the Swedish strategy has been based to a substantial extent on individuals taking responsibility under non-binding recommendations. This contribution explores the Swedish strategy from a constitutional and administrative law perspective, highlighting the tension between the formalist system for delegating norms under the Swedish Constitution and the pragmatic use of non-binding rules such as the “General Recommendations” adopted by the Public Health Agency. The article concludes that the official use of soft law instruments is confusing from a legal perspective, because non-binding rules do not offer the traditional formal mechanisms for legal protection, the publication of norms or accountability. The legal-realist approach of the Supreme Administrative Court’s case law, however, has the potential of balancing some of the unfortunate effects arising from the Swedish combination of formalism and pragmatism.}}, author = {{Wenander, Henrik}}, issn = {{1867-299X}}, keywords = {{Förvaltningsrätt; Allmänna råd; Administrative Law; Soft Law; COVID-19; Legal Realism}}, language = {{eng}}, pages = {{127--142}}, publisher = {{Cambridge University Press}}, series = {{European Journal of Risk Regulation}}, title = {{Sweden: Non-binding Rules against the Pandemic – Formalism, Pragmatism and Some Legal Realism}}, url = {{https://lup.lub.lu.se/search/files/97251826/sweden_non_binding_rules_against_the_pandemic_formalism_pragmatism_and_some_legal_realism.pdf}}, doi = {{10.1017/err.2021.2}}, volume = {{12}}, year = {{2021}}, }