Hard Choices and Soft Law: Ethical Codes, Policy Guidelines and the Role of the Courts in Regulating Government

Alberta Law Review, Vol. 40, pp. 867-893, 2003

29 Pages Posted: 20 Aug 2011

See all articles by Lorne Sossin

Lorne Sossin

York University - Osgoode Hall Law School

Charles W. Smith

St. Thomas More, University of Saskatchewan

Date Written: 2003

Abstract

The authors examine a number of examples of “soft law”: written and unwritten instruments and influences which shape administrative decision-making. Rather than rendering bureaucratic processes more transparent and cohesive, or fostering greater accountability and consistency among decision-makers, “soft law” in this context frequently reinforces artificial divisions. Moreover, it insulates decisions and decision-makers from the kinds of critical inquiry typically associated with “hard law.” If it is to realize its potential as a bridge between law and policy, and lend meaning to core principles – like fairness and reliability – soft law ought to be subjected to similarly critical consideration. The authors maintain that doing so allows one to preserve soft law’s promise of flexibility. Moreover, one avoids falling prey to the misleading dichotomies soft law tends to bolster in the absence of critical administrative, political, and judicial scrutiny.

Keywords: administrative decision making, soft law, critique of soft law, judicial scrutiny

Suggested Citation

Sossin, Lorne and Smith, Charles W., Hard Choices and Soft Law: Ethical Codes, Policy Guidelines and the Role of the Courts in Regulating Government (2003). Alberta Law Review, Vol. 40, pp. 867-893, 2003, Available at SSRN: https://ssrn.com/abstract=1911267

Lorne Sossin (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

Charles W. Smith

St. Thomas More, University of Saskatchewan ( email )

College of Education
Saskatoon, Saskatchewan S7N 5A7
Canada

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