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

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: Other

Category: Social Science & Humanities

Type: Journal article

PubMed 34191958

DOI 10.1017/err.2021.2

Crossref 10.1017/err.2021.2

pii: S1867299X21000027
pmc: PMC8060606

Publications 9.5.0