Sweden: Non-binding Rules against the Pandemic – Formalism, Pragmatism and Some Legal Realism
Wenander, Henrik LU
(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:
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}},
}