Soft Law in the Public Administration

Soft law in the public administration concerns all kinds of non-legislative rules in favour of governmental or administrative decision-making. These rules are known as quasi-legislation, guidelines, protocols, codes, models, covenants, instructions, norms for standardisation, et cetera. There is a natural need for rules. Rules contribute to equal treatment, legal certainty, transparency, efficiency, et cetera, and democracy (partly) and legitimacy. These functions of rules, which are the rationale the principle of legality, can be attributed to soft law, too. One of the questions concerning soft law in the public administration deals with, is the intensity of judicial review. This intensity depends from the sort of soft law (rules about discretion, fact-finding, interpretation or legal qualification). My central statement is that this intensity, and therefore the Division of Powers and the system of checks and balances, is changing from absolute and static model towards an more relative and dynamic one.

The working paper 'Soft Law in the Public Administration' can be found here.