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Sweden: Non-binding Rules against the Pandemic – Formalism, Pragmatism and Some Legal Realism

Wenander, Henrik LU orcid (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)
Please use this url to cite or link to this publication:
author
organization
publishing date
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
2022-04-27 01:36:07
@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}},
}