The Legal and Practical Effects of Soft Law in the Administrative Law Systems of the United States and the European Union
The aim of the article is to provide a brief comparison of the legal effects of soft law documents in the administrative law systems of the US and the EU. In this regard, the article tries to define the fine line between soft law documents that intend to have legal effects and those that have practical binding effects. Additionally, some questions will be raised regarding the meaning of “practical binding effects” and its relation to genuine legal effects. Soft law is traditionally defined as a rule with “no legally binding force which nevertheless may have practical effects”. The publication of soft law documents may also be considered as soft post-legislative rule-making, since most times soft law is adopted to further elaborate, interpret legislative acts. Even without legal effects, both the authorities and the interested parties rely on soft law documents. However, the use of such soft law is not a pathology of the rule-making ossification, it is rather a general phenomenon of a complex administrative law system. Soft law rules bring flexibility and adaptability in a rigid legal order, in addition to providing guidance and uniformity for the lower-levels of the executive. From the perspective of the interested public, soft law rules can at the same time create a sense of predictability by provide information on the future practice of the agency, while creating uncertainty by their undecided force of law effect. The problem arise when soft law documents intend to do more than giving guidance and contain more imperative language. In these cases, soft law intends to replace legislative acts, usually without going through the same procedure. Both the US and the EU courts have developed similar judicial tests to handle these cases and annul soft law documents with legal effects. Nevertheless, the line between documents with only practical binding effects and legal effects is not always clear, thus the courts usually have a wide margin of appreciation in deciding these cases.