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Wenander H
Eur J Risk Regul 12 (1) 127-142 [2021-03-00; online 2021-07-01]
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.
Category: Social Science & Humanities
PubMed 34191958
DOI 10.1017/err.2021.2
Crossref 10.1017/err.2021.2
pii: S1867299X21000027
pmc: PMC8060606