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Portrait of Henrik Wenander. Photo.

Henrik Wenander

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Portrait of Henrik Wenander. Photo.

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

Author

  • Henrik Wenander

Summary, in English

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.

Department/s

  • Department of Law
  • Public Law

Publishing year

2021

Language

English

Pages

127-142

Publication/Series

European Journal of Risk Regulation

Volume

12

Document type

Journal article

Publisher

Cambridge University Press

Topic

  • Law

Keywords

  • Förvaltningsrätt
  • Allmänna råd
  • Administrative Law
  • Soft Law
  • COVID-19
  • Legal Realism

Status

Published

Project

  • Den offentliga förvaltningens konstitutionella roll i Norden: demokrati, rättssäkerhet och effektivitet under europeisk påverkan

Research group

  • Public Law

ISBN/ISSN/Other

  • ISSN: 1867-299X