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

Henrik Wenander

doi:10.1017/err.2021.2

Abstract

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.

Highlights

Swedish measures to limit and prevent COVID-19 differ from the strategies used in other comparable countries.[1]
The legal-realist approach of the Supreme Administrative Court’s case law, has the potential of balancing some of the unfortunate effects arising from the Swedish combination of formalism and pragmatism
Vol 12:1 measures differ from those of the other Nordic countries of Denmark, Finland, Iceland and Norway. This is remarkable because the Nordic legal systems often provide similar solutions to societal problems.[3]. This contribution explores the use of non-binding instruments (“soft law”) in Sweden from a constitutional and administrative law perspective

Summary

INTRODUCTION

Swedish measures to limit and prevent COVID-19 differ from the strategies used in other comparable countries.[1]. The focus on written law is clearly expressed through the principle of legality, which holds a predominant position in constitutional and administrative law thinking The core of this principle is a requirement of support in written legislation for public bodies to act, especially concerning measures that are burdensome to the individual.[9] The respect for the legislature is indicated by the wide acceptance of the use of legislative materials (travaux préparatoires) for the interpretation of legislation.[10] At the same time, a certain form of “pragmatism” is often mentioned as specific to the Nordic legal systems, including Sweden’s system, in the sense that legal reasoning traditionally rests more on practical considerations and less on the deduction of solutions from abstract general principles.[11] In this way, Swedish legal thinking may be situated between a formalist adherence to written law and the pragmatic solution of problems. 12 Letto-Vanamo and Tamm, supra, note 3, pp 12 f; J Reichel, “European Legal Method from a Swedish Perspective – Rights, Compensation and the Role of the Courts” in U Neergaard et al (eds), European Legal Method – Paradoxes and Revitalisation (DJØF Publishing Copenhagen 2011) pp 246 ff

CONSTITUTIONAL FRAMEWORK

NORM-MAKING POWER UNDER THE SWEDISH CONSTITUTION

Introduction

General Recommendations