A year and some months into the COVID-19 -pandemic, it is trite to say that it has been an unprecedented challenge to many legal systems around the world. In attempting to mitigate the devastating social, economic and political effects of the virus, many governments went all out and closed national borders, schools, cinemas and restaurants, ordered lockdowns, strongly recommended that those over 70 years old stay indoors in quarantine-like conditions, banned social gatherings, and encouraged social distancing and the use of face masks.

In addition to “normal” legislative measures (or, in some legal systems, administrative rule-making in the form of governmental or ministerial decrees), much of the regulation of COVID-19 has taken place through circulars, instructions, guidance and other norms. The legal status of such norms is not entirely clear, but they are often referred to as ’soft law’. Soft law is labelled as ’soft’ to keep it distinct from legislation as hard law. The European Journal of Risk Regulation published a Special Issue on the use of such non-binding soft law guidance in dealing with COVID-19 in a comparative perspective.

The articles contained in the Special Issue compare and critically analyse the uses of soft law in dealing with COVID-19 at EU level, as well as in seven EU Member States (Finland, Germany, Greece, Hungary, Italy, Spain, Sweden), China and England. These countries have followed very different approaches to the management of the pandemic, ranging from a full lockdown in China, Italy and Spain to very mild recommendations in Sweden. These differences have not only resulted from different legal and political traditions (such as federalism in Germany) but the countries’ specific approaches also reflected the particular circumstances they were facing locally (such as the large number of migrants in Greece).

Also the use of soft law between the countries varied. Some national governments and other (central or local) authorities did not resort to non-binding soft law guidance (for instance, the German response was described as business as usual, with the emphasis on legislative instruments) whereas others experimented with soft law to stop or to slow down the spread of the virus. Finland, for example, used soft law to regulate the cross-border travel, England to ensure the functioning of criminal justice system, or Hungary to manage teaching during lockdowns. As an experienced soft law regulator, the EU was quick to turn to soft law, adopting impressive numbers of soft law documents in the first few months of the pandemic. Some attempts at soft law-making were better than others, but the universal lesson is that as an instrument soft law is not something that you can throw at a problem that comes your way, even if this problem happens to be a worldwide pandemic. There are constitutional and legal limits to soft law-making, too.

The Special Issue shows that there is no denying that COVID-19 soft law is soft law at its best: it is cheap, fast, flexible; and therefore good for emergency situations. But COVID-19 soft law is soft law also at its worst: it lacks democratic credentials, poses – unlike standard non-emergency soft law – risks for fundamental rights, results in constitutional encroachments, and confuses not only the general public but courts and lawyers, too.

Soft law is always a mix of these good and not-so-good elements. This is not to say that these not-so-good elements are inevitable, but to acknowledge that it is not possible to have the best of both worlds. It is hard to retain the speed and agility of soft law with parliamentary involvement or make full use of flexibility while also at the same time making the general public understand why soft law may be a rule or may not be a rule. The precise components of this regulatory response mix (what is non-negotiable and what can be compromised on) cannot be determined in abstract, in advance or uniformly across jurisdictions. Each jurisdiction must decide on its own smart mix. Yet smart jurisdictions learn from the mistakes of others, and this is what the Special Issue hopes to facilitate.

Read the EJRR Special Issue on COVID-19 and Soft Law without charge for a limited time. The issue guest editors are Mariolina Eliantonio, Emilia Korkea-Aho and Steven Vaughan.