Jessika van der Sluijs (Stockholm University – Faculty of Law) has posted Normative Legitimacy of Domestic Soft Law on SSRN. Here is the abstract:
Although the concept of soft law usually is associated with norms in an international context, the concept has always been an important element of domestic Swedish law. My research field – insurance law and financial markets law – is and has always been regulated to a considerable extent by various models of soft law. As a lawyer practising law within these fields, it is not enough to consider traditional hard law; one must also pay attention to recommendations, guidelines, complaint board decisions, statements on good conduct, and codes of conduct issued by authorities and agencies, industry organizations, alternative dispute boards or professional associations. Soft law norms are not binding in traditional terms. Nevertheless, the various branches and industries pay attention to the norms, respect them, follow them, use them to solve legal problems, refer to them in legal disputes, teach them to their employees and adjust their operations according to the norms. The guidelines, recommendations, codes of conduct, etc., are indeed law beyond the state. The fact that domestic soft law often has a normative impact on everyday legal affairs is unarguable.
Although soft law "rules" are not binding like hard law, the soft-law makers often use the symbolism of hard law. Recommendations by alternative dispute resolution boards look like judgements from the courts. Guidelines or codes of conduct look like pieces of legislation. However, that does not mean that the guidelines or the recommendations by alternative dispute resolution boards look like judgements from the courts. Guidelines or codes of conduct look like pieces of legislation. However, that does not mean that the guidelines or the recommendations are automatically complied with by the industry (for instance the insurance industry). For a lawyer who is an expert within a certain industry it is possible to assess, based on experience, whether or not a guideline "ought to" be complied with, and the lawyer knows the risks associated with non-compliance. However, if one is a stranger to an industry, it is difficult to evaluate the normative legitimacy of a guideline or a recommendation. In one legal field (for instance the insurance law field) there might be a great variation of soft law, issued by different actors. Technically, the guidelines or recommendations might look the same. In practice, however, they differ in normative impact; some can be safely ignored, while non-compliance with others involves certain risks.
In this article I sketch, in somewhat general terms, a model of the infrastructure of domestic soft law – a model that can be used to evaluate whether a specific guideline, code of conduct, recommendation, etc. typically has normative legitimacy, i.e. is likely to be respected by the actors within the industry, complied with by the actors, referred to in legal disputes, taught to new employees of the industry, are expected to be followed by other actors within the industry, etc. In the next section I discuss the institutional framework that needs to be in place in order to produce soft law. I then describe the constituent components of normative legitimacy of soft law. Finally, I discuss which infrastructures that are within and which are outside the control sphere of soft-law-making actors.