Hard Choices and Soft Law: Ethical Codes, Policy Guidelines and the Role of the Courts in Regulating Government
AbstractThe 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.
Author(s) retain original copyright in the substantive content of the titled work, subject to the following rights that are granted indefinitely:
- Author(s) grant the Alberta Law Review permission to produce, publish, disseminate, and distribute the titled work in electronic format to online database services, including, but not limited to: LexisNexis, QuickLaw, HeinOnline, and EBSCO;
- Author(s) grant the Alberta Law Review permission to post the titled work on the Alberta Law Review website and/or related websites.
- Author(s) agree that the titled work may be used for educational or instructional purposes and/or in educational or instructional materials. The author(s) acknowledge that the titled work is subject to other such "fair dealing" provisions and applicable legislation.
- Author(s) grant a limited license to those accessing the titled work from an electronic database or an Alberta Law Review website to download the titled work onto their computer and to print a copy for their own personal, non-commercial use, subject to proper attribution.
To use the journal's content elsewhere, permission must be obtained from the author(s) and the Alberta Law Review.