Soft Law and Public Liability: Beyond the Separation of Powers?

21 Pages Posted: 4 Aug 2018 Last revised: 7 Sep 2018

Date Written: July 16, 2018

Abstract

Soft law refers to domestic, non-legislative instruments which are designed to influence, modify or otherwise affect conduct. It relies for this result on the fact that people generally assume that soft law requires them to act and has immediate legal effect. Where this assumption is mistaken, individuals have a limited capacity to obtain remedies where public authorities fail to adhere to the terms of their published soft law. This paper examines reliance on soft law and considers a selection of the diverse forms in which it appears. It considers which remedies are available where an individual suffers loss as a result of relying on soft law and asks whether and how the separation of powers doctrine can be updated to attach legal significance to the proliferation of soft law. Soft law is a topic about which little has been written. Given its importance as a regulatory tool, a fuller analysis of its place within the separation of powers model is both timely and original.

Keywords: Administrative Law, Soft Law, Separation of Powers

JEL Classification: K10, K19, K23

Suggested Citation

Weeks, Greg, Soft Law and Public Liability: Beyond the Separation of Powers? (July 16, 2018). Adelaide Law Review, Vol. 39, 2018, ANU College of Law Research Paper No. 18-10, Available at SSRN: https://ssrn.com/abstract=3214391

Greg Weeks (Contact Author)

ANU Law School ( email )

ANU College of Law
5 Fellows Road
Canberra, Australian Capital Territory 2600
Australia
6125 5420 (Phone)

HOME PAGE: http://law.anu.edu.au/people/greg-weeks

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