Henrik Wenander
Dean
Sweden: Non-binding Rules against the Pandemic – Formalism, Pragmatism and Some Legal Realism
Author
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
Full text
- Available as PDF - 294 kB
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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