I. PRELIMINARY REMARKS: SCOPE, STATE OF THE ART, AND METHODOLOGY
This article aims to map how soft law fitted around and supported the overall regulatory strategies implemented by European countries to counter the systemic and multi-faceted Covid-19 crisis (the pandemic soft law atlas Footnote 1), and to shed light on some key aspects: more specifically, how pandemic soft law tools interact and complement one another including on different levels (the pandemic soft law web), how pandemic soft law tools interact and complement the sources of pandemic law to the point that they have created a sort of expanded normative dimension able to back up the overall regulatory process, at all stages (the interplay between pandemic soft and hard law), and the positive and negative impacts on sovereignty and individual freedoms, as well as on governance and policy making during the pandemic and beyond (the pandemic soft law bright and dark sides).
Although the policy responses to Covid-19 have been analysed in depth from many different perspectives,Footnote 2 including as regards the use of soft law,Footnote 3 a comparative analysis on the use, operation, effectiveness, and potential of pandemic soft law on such policy responses has still not been made. This article, based on a set of country-specific experiences ranging from February 2020 to May 2021, aims to fill this gap and to assess the true added value of soft law at a time of systemic emergency, where sovereignty becomes more apparent but where there is also an urgent need to get private and public players’ consent over decisions deeply affecting individual freedoms. Decisions that may even involve tragic constitutional choices, shaping behaviours outside a merely prescriptive paradigm and enhancing legal resilience and effectiveness throughout the regulatory process and in a holistic sense.
A clear methodology is key to the success of the research work. First, it is essential to define and set out what soft law means.Footnote 4 Here soft law is interpreted broadly, in order to encompass the various tools used by institutions when implementing their policies and goals that aim to shape and regulate the behaviour of individuals, businesses, and/or other private and public institutions without recourse to the prescriptive or authoritative paradigm that traditionally applies in the public sphere.Footnote 5 These tools may include guidelines and collections of best practices and cases, FAQs, public statements and speeches, alerts and press releases, recommendations and warnings, conference proceedings and working papers, information and awareness campaigns, and even silence.Footnote 6 In this broad(er) meaning, soft law works as a descriptive legal category that encompasses the multi-faceted complexity of an increasingly important normativity essential to the effectiveness and resilienceFootnote 7 of contemporary legal systems and their institutional apparatus.Footnote 8
Second, despite the fact that the term soft law contains echoes of law-making power and reveals the complex world of an ancillary normativity, its roles and features can only be fully understood and studied in conjunction with, and throughout, the entire regulatory process/cycle,Footnote 9 from law making to law implementation and enforcement. This is precisely the landscape in which public policies and governance are developed, carried out, tested, and adjusted on an ongoing and quite open basis, and it is exactly where soft law comes into play. Consequently, as soft law is a regulatory strategy instrumental to an augmented governance,Footnote 10 it would be more appropriate to refer to it as soft regulation. This terminology variation may serve to clear the field of potentially misleading interpretations and narratives connected to the use of the word ‘law’, in which soft law tools are only measured on a par with law making and soft law is compared with hard law, and soft law sources with hard law sources.
Third, the study and mapping of soft law cannot ignore the complexity of governance, ie the multitude of players, goals, and areas of application. Soft law is a fluid normativity that originates and operates in a composite and highly flexible web of international, supranational, domestic, and sub-state players, both public and private. This is an open-source environment in which norms, regulations, and institutional decision-making can be continuously inspired, tested, changed, and exchanged through adaptive and dynamic processes. In this respect, drawing lines between institutional soft law, self-regulation and even judicial soft law is not enough, and is far from satisfactory. Moreover, in order to understand how soft law sources and soft law makers influence one another, the study of this soft law web requires a system-minded approach.Footnote 11
Fourth, a comparative perspective may add significant value to the analysis and mapping of the roles soft law has played in countering the Covid-19 pandemic in Europe.Footnote 12 In fact, country-specific cultural, socio-economic, legal, and institutional factors profoundly affect the selection of strategies based on soft law tools, the power and efficacy of soft law, its role within the framework of emergency sovereignty, deeply affecting individual freedoms but more than ever in need of people's consent and spontaneous compliance. Besides, country-specific factors significantly affect the interplay between hard and soft law, throughout the entire regulatory process. That said, due to the way the soft law web operates, a comparison of different soft law practices and experiences is key to understanding soft law's bright and dark side and, in the end, to furthering our knowledge of the mercurial regulatory strategy we call soft law. Moreover, precisely because it developed at a time of such a systemic emergency, the paradoxical alliance between sovereignty and soft law-based strategies clearly shows the extent to which soft law is linked to the effectiveness of law, at all stages of the regulatory process, and to the capacity of legal systems and their institutional apparatus to deal with rapid changes and systemic shocks such as those brought about by the Covid-19 pandemic.Footnote 13 Thus, it has proved itself a strategic ally for augmented governance in a future of rapid change and unknown risks.
II. SOFT LAW IN THE PANDEMIC: THE ATLAS
A. General Overview and Structure of the Atlas-Country Selection
As highlighted by the French Conseil d’État in its 2013 report on soft law (droit souple),Footnote 14 during times affected by new phenomena that evolve rapidly and require prompt and appropriate public policies, reactive governance, and legal resilience, soft law/soft regulation finds its place. Bearing this in mind, the extensive and substantial use of soft law/soft regulation in the fight against Covid-19 cannot be considered either surprising or coincidental. Besides, the fluid and grey-zone normativity represented by soft law has proved to be ‘particularly adapted to deal with emergencies such as the current pandemic’.Footnote 15
Furthermore, it is worth mentioning that the use of soft law in the context of pandemics and/or diseases is not new, either at international/European level or at national level, so the current frequent recourse to soft law to counter the Covid-19 pandemic can rely on previous experiences.Footnote 16 For example, the guidance for pandemic preparedness developed by the World Health Organisation (WHO) in 1999Footnote 17 and revised in 2005Footnote 18 and 2009Footnote 19 comes to mind, along with national pandemic plans adopted on the basis of such guidanceFootnote 20 (nowadays partially reviewed and updated), also taking into account the latter's relevance in the field of fundamental rights and their substitutive function with respect to hard law.Footnote 21 The extensive recourse to soft law at all levels during the SARS epidemic is also tangible evidence of this (see the WHO Guidelines for the global surveillance of severe acute respiratory syndrome issued in 2003 and revised in 2004,Footnote 22 the EU guidance documents and the measures implemented at national levelFootnote 23). It has also to be highlighted that at international and European level soft law is the only tool, given the lack of competence and/or of binding powers on such matters. Furthermore, the use of soft law at European and international level has been generally increasing over time.Footnote 24
However, awareness is not enough. In order to determine the effectiveness of soft law in addressing the pandemic's many challenges (from health to the economy) and, on a more general and theoretical level, the impact it is having and will have on legal systems and individual freedoms, together with the reasons for its success (or perhaps lack thereof), we need to measure and map the soft law web (see Part I). This means tracking the way the soft law web operates, starting with the soft law makers (Section B below), the type of soft law tools they use (Section C below), the functions/benefits soft law helps them achieve (Section D below), and, last but not least, linking the various domestic soft law experiences (Section E below). Based on the proposed methodology, different domestic jurisdictions are here taken into account, in order to both widen the research and evidence base, and offer a significant comparative overview between Italy,Footnote 25 Germany,Footnote 26 France,Footnote 27 the United Kingdom,Footnote 28 and Luxembourg.Footnote 29 The countries were selected to respond to specific criteria. First of all, the selected countries have different levels of decentralisation, so it is possible to assess not only the use of soft law/soft regulation in the light of the different forms of state, but also the role soft law plays as a tool bridging the centre and the peripheries of legal systems.Footnote 30 Secondly, in the aftermath of Brexit and given the peculiar features of the United Kingdom's legal (and constitutional) system, understanding how the UK used soft law to counter Covid-19 or to improve the efficacy of its overall Covid-19 regulatory strategy, the many challenges posed by the pandemic—in terms of both the resilience of the healthcare system and socio-economic recovery—and the impact EU soft law may have had (and may still have), adds dramatic tension to the present research and its proposed scope. Finally, the case of Luxembourg is worth mentioning because of some best practices put in place to combat Covid-19, which have been possible precisely due to its small size.
In the next paragraphs, the article will aim to put together a pandemic soft law scenario, taking into account the players, the forms, and the roles of soft law, as it has evolved throughout the pandemic crisis, in order to offer a frame of reference as a basis for a better comprehension of the value and of the drawbacks of using soft law in the current emergency situation and beyond.
B. The Soft Law Makers
In actual fact, and in normal circumstances, soft law is not only omnipresent,Footnote 31 it also operates in a composite and highly flexible web of international, supranational, domestic, and sub-state players, both public and private. It cuts across different legal systems (both vertically and horizontally) at all stages of the regulatory processes, allowing for highly flexible and direct forms of communication/dialogue across the international order on the one hand, and between individuals and businesses on the other. The complexity of the soft law web—the number of players and levels involved, and their interaction—depends on many country-specific factors. These include: the form of state and government, the level of institutional fairness and culture of cooperation (both public-to-public and public-to-private), the structure and functioning of the administrative apparatus, and the specific features of the legal system concerned. The question is whether the pandemic has added further complexity to the already complex soft law web. To answer this question, we need to map the spectrum of ‘anti-Covid19’ soft law makers at the various levels (1), and how they operate and interact with one another (2).
With regards to the spectrum of ‘anti-Covid19’ soft law makers, it is worth emphasising beforehand that the (huge) number and (varied) type of players depend primarily on the pandemic's multi-faceted and systemic impacts. It is a health-related, but also a socio-economic crisis which raises serious constitutional issuesFootnote 32 and the need to re-think cultural and development models.Footnote 33 Besides, to counter the Covid-19 emergency, a new pandemic-related form of governance has emerged, which has developed rapidly in all countries surveyed, bringing new players to the forefront, altering roles and powers, and forcing the system into institutional cooperation at all levels with the involvement of all affected parties (both public and privateFootnote 34). Notwithstanding the fact that national experiences differ from one another in terms of their governance structure and its legal basis,Footnote 35 pandemic governance has tended to work alongside, and to partially overlap with the institutional and administrative apparatus, adding a further level of complexity. Countries with an existing specific legal framework (and related administrative apparatus) for tackling emergency situations and healthcare crises, are no exception.Footnote 36 In short, the vast spectrum of soft law makers mirrors, on the one hand, the intense, multi-faceted and systemic effects of the Covid-19 crisis, and, on the other hand, the organisational aspect of the pandemic that has added so much complexity to governance frameworks in all countries. In this respect, soft law is at once a cause and effect of this complexity, in the way that it triggers changes to the governance framework and gives voice to many governmental and non-governmental players.
Moving on to map the soft law makers, starting from an international level, since the Covid-19 crisis broke out, the United Nations (UN), and its specialised agency responsible for international public health (the WHO), have played a leading role in addressing the current pandemic and the response strategies put in place by nation states.Footnote 37 However, the pandemic-driven collapse of the economy has also led the Organisation for Economic Co-operation and Development (OECD) to enter the field, and to develop data, analysis, and recommendations on a vast range of topics. Such measures focus on the vulnerable sectors of society and the economy (such as tourism), in an attempt to boost a resilient recovery through coordinated policy responses across countries. The International Monetary Fund (IMF) also provides policy advice, issuing special series notes on Covid-19 to help members address the economic effects of the pandemic,Footnote 38 and FAQs on the IMF's response to Covid-19.Footnote 39 The final component of the framework is the Council of Europe, which has issued a toolkit for governments across Europe on respect for human rights, democracy, and the rule of law during the COVID-19 crisis.Footnote 40 The importance of this document cannot be underestimated, since it highlights the fact that anti-Covid-19 measures must remain proportionate and limited in time in order to avoid undermining human rights, democracy, and the principle of the rule of law. In this context, it is also worth mentioning that in its Statement on derogations from the Covenant in connection with the COVID-19 pandemic,Footnote 41 the UN Human Rights Committee has also stressed the importance of the limitation in duration, geographical coverage and material scope, and on the proportionality of any measures taken. This crucial issue is gradually being dealt with by Constitutional Courts, in their key role of guardian of fundamental rights and individual freedoms, called upon to establish both the constitutional features of pandemic law and the constitutional parameters to assess the sustainability of anti-pandemic measures, even if based on soft law.Footnote 42
At a supra-national level, the response to the coronavirus crisis has been led by the European Commission. On the one hand, the Commission ‘has assumed, along with national authorities, its own share of responsibility to respond properly to the serious public health issues related to the COVID-19 crisis’Footnote 43 and, on the other hand, it has given ‘its contribution in term of solidarity, ie the quintessential normative value of the EU construction’.Footnote 44
Under this umbrella, other significant European soft law players in the pandemic are the European Central Bank, the three European Supervisory Authorities (the European Banking Authority (EBA), the European Securities and Markets Authority (ESMA), and the European Insurance and Occupational Pensions Authority (EIOPA)), the European Data Protection Board, and the various EU Agencies, each in its field of expertise.Footnote 45 Their action is particularly relevant, since they have engaged both with the equivalent authorities/agencies at national level and with private institutions/organisations and individuals, giving an extraordinary boost to mitigation of the crisis in the various sectors.
On a domestic level, the emergence of pandemic governance frameworks has been responsible for the most significant changes, especially in the use of soft law and the variety of different soft law makers. Although the spectrum of soft law makers very much depends on the country-specific pandemic governance framework (its complexity, operational mechanisms, constitutional setting, and so on), to say that the soft law web simply mirrors it is to sin by neglect. In fact, soft law is a powerful game-changer. It contributed to the framework for pandemic governance in the first place, together with its informal bodies and advisory boards, and helped many players find their place within this framework (irrespective of formal legal boundaries). Their roles promptly and informally adapted to developments in the pandemic crisis, other players’ behaviour and the effectiveness of pandemic-driven regulatory strategies. Mapping the pandemic governance framework is therefore key, as all its players have proved themselves to be soft law makers, in the sense that they have, at least to a certain extent, made use of soft law as a regulatory strategy to tackle the pandemic's many challenges. It is also worth mentioning here that many of the pandemic governance framework players have had an important role precisely as soft law makers. Quite frankly, were it not for soft law, they would have played a less important, or very different role.
As the following rapid overview shows, this is common to all the countries surveyed. The crisis outbreak has led to quite a composite governance framework, the essential features of which are: a strengthening of the head of government's role together with that of the executive and that of central government;Footnote 46 a call for the presence of supportive, encouraging and charismatic high-level institutional figures (starting with the head of stateFootnote 47); substantial, continuous, and relatively informal cooperation between different levels of government (regional and municipal councils first and foremost);Footnote 48 the empowerment of extraordinary emergency bodies (and related advisory and scientific committees) operating side by side, and in partial overlap with other emergency bodies and administrative structures already provided for by law;Footnote 49 independent agencies acting as facilitators in many key areas (such as financial and banking markets);Footnote 50 consolidation of the proactive role of unions and trade associations in shaping anti-pandemic regulatory measures and (hard and soft) regulations and in assisting workers and/or businesses;Footnote 51 and engagement of the scientific community in policy-making to support anti-pandemic regulatory strategies and their effectiveness.Footnote 52 These changes have paved the way to a broad and varied spectrum of soft law makers—public and private, national, regional, and local—interacting with one another and with soft law makers at supranational and international level.
Before considering how soft law makers interact with one another, it is worth pointing out how they operate (2). In this respect, it is noticeable that many soft law makers have shown themselves to rely heavily on soft law to address tasks and to make their contribution to anti-pandemic governance.Footnote 53 A few examples may be useful here. Notwithstanding the strong regulatory powers conferred upon him by emergency laws, the former Italian Prime Minister Giuseppe Conte relied strongly on soft law (public statements and press releases above all, frequently given in the presence of other institutional figures or members of scientific advisory bodies) to enhance his leading role in the pandemic governance framework and the effectiveness of anti-pandemic strategies in terms of citizens’ responsiveness. Similarly, the UK Prime Minister Boris Johnson has been shoring up his political standing and decision-making powers with a strong narrative: ‘our great national drama’Footnote 54 and ‘we must act like any wartime government’,Footnote 55 echoed by Her Majesty's official addresses to the nation,Footnote 56 and conveyed through frequent public statements (almost on a daily basis in the first wave of Covid-19).Footnote 57 The same narrative has been used in France by President Emmanuel Macron: ‘Nous sommes en guerre’.Footnote 58 The German Chancellor, Angela Merkel, has also benefited from her scientific background (she has a PhD in quantum chemistry)—which confers more authority to her messages, increasing the power of their persuasion on the public opinion—to strengthen anti-Covid-19 distancing measures by inspiring trust and dependability.Footnote 59 In Luxembourg it should be noted that, in accordance with Article 32(4) of the Constitution, the declaration of a state of emergency on national territory was anticipated by the statement of the Prime Minister Xavier Bettel at the Chamber of Deputies telling people to ‘Stay at home!’Footnote 60 The subsequent measures to counter the pandemic were always announced or accompanied by statements made by the Prime Minister or press conferences by the latter together with the Minister of Health, Paulette Lenert: a strategic interplay/alliance between hard and soft regulatory measures in order to underpin people’ consent and trust in the institutions together with their effectiveness.
The same approach can be observed at both higher (international and/or supranational) and lower levels (state, regional, and local government level, based on the country-specific form of state and the devolution in place), where high-level institutional figures have frequently used soft law to ramp up their dialogue with interested parties and/or citizens with the aim of promoting coordinated approaches, building consensus and trust in governance, and preventing stricter lockdown and social distancing measures. In this respect, it is worth mentioning that the UN Secretary-General António Guterres has issued many public statements, press releases, statements to UN member states (also via video-message), and opinions.Footnote 61 Among others, these include the following statements: his comparison between the virus and a ‘war that needs a war plan to fight it’ at the G-20 summit on the Covid-19 pandemic on 26 March, 2020;Footnote 62 his warning against ‘a dangerous epidemic of misinformation’; and his invitation to trust in science and solidarity on 14 April, 2020.Footnote 63 Similarly, the President of the European Commission has made frequent official public statements to EU citizens (and has even been interviewed on national TV networks), to help narrow distances between European institutions and raise awareness about EU measures and strategies to counter Covid-19 and support the recovery of EU member states.Footnote 64
Other institutional bodies have relied heavily on soft law. In Italy, 71 of 134 Covid-related Health MinistryFootnote 65 measures (from February to December 2020) not only fall into the category of soft law tools, but also circulate the soft law of scientific advisory bodies (best practices and recommendations, guidelines, and safety measures), leading to what could be described as a soft law loop.Footnote 66 It is probably less surprising to find out that 34 of the 38 Interior Ministry's pandemic-related measures (enacted before 31 December 2020) fall into the category of soft law tools. In Germany, the Federal Ministry of Health has made wide use of its power to issue recommendations, a power that is now expressly recognised by Article 5, paragraph 6 of the Infection Protection Act (Infektionsschutzgesetz, IfSG), as amended in 2020.Footnote 67 Here the Robert Koch Institut (RKI), the German federal government agency and research institute responsible for disease control and prevention, has played a pivotal role through a broad range of soft law measures (from the supplement to the pandemic plan cited sub C to its constantly updated FAQ). The Institute's coordination role in the event of an epidemic outbreak of national importance is set out in the Infection Protection Act, as amended in 2020.Footnote 68 It is also worth mentioning that Article 4, paragraph 2, of the Act expressly mentions soft law instruments that can be issued by the Robert Koch Institut: guidelines, recommendations, leaflets and other information for the prevention, detection and prevention of the spread of transmissible diseases.Footnote 69 Moving onto independent agencies,Footnote 70 these have undoubtedly been key facilitators in sector-specific markets by combining a broad range of soft law tools (from FAQs to guidelines). Their approach is clearly aimed at embracing all market players—consumers, customers, and savers first and foremost—and at operating in close conjunction with sector-specific regulators and supervisory bodies at European level.
It is also important to highlight that European and constitutional judges are key soft law makers. Indeed, the aforementioned broad concept of soft law also needs to include the soft approach of judicial dialogue.Footnote 71 This is the implicit or unseen conversations between courts based on the work of judges’ assistants, or the informal meetings between judges that take place through their own personal networks or through seminars/conferences organised by the courts or by international organisations and universities. Such dialogue provides a significant stimulus for the establishment and dissemination of an international/European legal culture capable of dealing with the challenges of our time, without lowering the threshold on the protection of rights.Footnote 72 Judicial soft law instruments are also the reports and analyses drafted by the courts such as the one on droit souple by the French Conseil d’État,Footnote 73 the first annual report published in 2020 by the German Federal Constitutional CourtFootnote 74 that—not by chance—includes a brief overview of the decisions on measures taken to combat the Covid-19 pandemic,Footnote 75 or the report on the activities of the Italian Constitutional Court in 2020 made by its President Giancarlo Coraggio on 13 May 2021,Footnote 76 which contains a reference to the problem of a lack of coordination between State and Regions in the context of the current pandemic and to the unity of action and regulation required by the national dimension of the emergency.Footnote 77 In addition, another aspect worth mentioning is the current development of a new procedural judicial soft law, composed of guidelines and hearing memoranda, which aims to introduce exceptional procedural regulation for Covid-19 times,Footnote 78 thanks to the flexibility and dynamism that enable it to adapt to a constantly changing situation.
This overview would not be complete without reference to research institutions/centres/associations as soft law makers in the contest of the fight against Covid-19. If scholars’ works are always a stimulus for the development of strategies and solutions, the formal recourse to soft law instruments by research institutions/centres/associations specifically aimed to spread anti-pandemic strategies or guidance is worth of mention. Two cases are: (1) the joint statement dated 28 April 2020 by the Fraunhofer Society, Helmholtz Association, Leibniz Association, and Max Planck Society on possible coping strategies for the coronavirus pandemic from a modelling perspective based on mathematical analyses of the data situation,Footnote 79 and (2) ad hoc statements on the coronavirus pandemic by the German National Academy of Sciences Leopoldina.Footnote 80 The fact that both the cases are in Germany is not surprising, given the importance of university and non-university research organisations in the country. Finally, also in Germany the Society for Legislation has acted as a soft law maker by issuing guidelines for parliamentary and executive law-making in the present Covid-19 situation,Footnote 81 focusing on significant items such as the need to guarantee the core contents of public debate, the protection of fundamental rights, and judicial control over regulatory laws.
C. Pandemic Soft Law Comes in Different Shapes
This new and important normativity called soft law is multi-faceted, as it comes in many different shapes and at all stages of the regulatory process, from law making to law implementation and enforcement, supporting the resilience of contemporary legal systems and augmenting the potential of all its components (augmented governance). According to the proposed methodology and definition (see Part I above), the term soft law is here intended in a very broad meaning, capable of embracing and bringing together a varied set of tools comprising up pandemic soft law governance, from plans,Footnote 82 guidelines and collections of best practices and cases, and FAQs, to public statements and speeches, alerts and press releases, recommendations and warnings, conference proceedings and working papers, information and awareness campaigns, and even silence. All of these differential measures have been placed at the service of an expanded normative dimension, instrumental to hard law and regulatory strategies during the pandemic crisis. That said, it remains to be specified which soft law tools were specifically used, at what stage, for what purpose, and how. This step will be useful for mapping soft law tools based on their function and operation.
Research outputs show that pandemic soft law has been used not only in all its varied shapes by different players at all levels of government and at all stages of the regulatory process, but also in combination or in crosslinks aiming to enhance the impact and recognition of soft law (the soft law loop). Moreover, as will be analysed in greater depth further on (in Part III), the pandemic has led to quite an intricate interplay between soft law and hard law sources that has transformed and reshaped hard law from the inside, together with law making processes and the system of law sources (interplay between hard and soft law). In addition, as analysed later (in Part IV), pandemic soft law has significantly complemented and supplemented the traditional toolbox in the hands of regulators and supervisory agencies and bodies, allowing them to partially recalibrate their institutional role so to counterbalance the impact of the pandemic on sector-specific markets.
Apart from these more general considerations, the research work provides more specific insights into pandemic-related soft law. In particular, it helps to understand what type of soft law has mainly been used, by whom and why.
As typical soft law instruments of pandemics developed under the impulse of the WHO, pandemic plans were also applied during the Covid-19. Germany is a primary example, where due to the Covid-19 pandemic, the Robert Koch Institut (RKI) published a supplement to the national pandemic plan (Ergänzung zum Nationalen Pandemieplan – Covid-19 – neuartige Coronaviruserkrankung) on 4 March 2020. This included new recommendations based on the three identified epidemiological phases (‘Containment, Protection and Mitigation’).Footnote 83 As a consequence, some Länder updated their pandemic plans,Footnote 84 in the process remedying some problems of coordination with the Federation and with the other Länder.
Guidelines and collections of best practices and cases are probably the most common and widespread formats in the soft law family. At times of emergency, when there is little room for selecting and collecting best practice and cases, and knowledge progresses experimentally and by means of rapid adjustments based on a learning-by-doing approach,Footnote 85 health and safety guidance (and guidelines) have proved themselves key to promoting uniform behaviours and practices by means of easily adaptable standards, reaching vast audiences comprising public and private institutions, businesses and individuals.Footnote 86
Starting from an international and European level, the analysis shows that soft law takes many different shapes. The WHO and the European Union have issued several measures and, more specifically, technical guidance, statements, releases, press conferences, communications, guidance, roadmaps, situation reports, resolutions, and plans. Examples at the European level include the Communication on a coordinated economic response to the COVID-19 outbreak of 13 March 2020;Footnote 87 the Communication from the European Commission of 20 March 2020 on a temporary framework to support the economy;Footnote 88 and the Guidance on the implementation of the temporary restriction on non-essential travel to the EU, on the facilitation of transit arrangements for the repatriation of EU citizens, and on the effects on visa policy of 30 March 2020.Footnote 89
Policy briefs are also frequently used, for example by the UN Secretary-General. Classified by theme, population group, and region, such briefs are very interesting because they cover many different topics (food security and nutrition, people on the move, mental health, human rights, debt, socio-economic impact, jobs, cities, tourism, inequality, education, and universal health), and take into account different perspectives, ie the belonging to specific categories (people with disabilities, older people, children, and women) and to geographic areas that are less equipped to deal with the pandemic (Africa, the Arab States, South-East Asia, Latin America, and the Caribbean).Footnote 90
In the UK, the Cabinet Office's Staying at home and away from others Guidance catered for the very first lockdown measures in the country, paving the way to the Coronavirus Act of 25 March 2020.Footnote 91 Thanks to the Coronavirus Act, the executive's guidance was thereafter not only formally recognised as a strategic tool to address the pandemic's many challenges, in England as well as in the devolved countries of the United Kingdom, but also, at least to a certain extent (depending on the wording used and interpretation given), made legally binding.Footnote 92 In order to move faster and ensure uniformity and coordination across different levels of government, after the first chaotic early stages of the spread of Covid-19, standards developed internationally or by the EU have been copied and/or adopted domestically thanks to cross-referencing mostly by soft law sources. Hard law has sometimes stepped in, to facilitate these soft law loops and to boost and strengthen the dissemination of guidelines domestically. In Italy, the WHO's guidelines and standards, as transposed into Ministry of Health guidelines, have been made mandatory for all medical staff. Aside from health and safety guidance, easy-to-read and clear guidelines about how to address public policies and procurement in emergency situations, based on legal tools and practices already in place, have also played a very important role. An example is the European Commission's Guidance on using the public procurement framework in the emergency situation brought about by the COVID-19 crisis’Footnote 93 and, domestically, the vade-mecum on faster and simpler public procurements issued by A.N.AC., the Italian anti-corruption authority.Footnote 94
The huge mass of anti-pandemic hard and soft law measures (the latter, as previously mentioned, in the form of guidance, vademecums, and guidelines) has been accompanied by additional anti-pandemic soft law mostly comprising recommendations, warnings,Footnote 95 and clarifications. A superficial examination of such complementary anti-pandemic soft law would give the impression of a highly complex and fragmented situation. Recommendations and warnings may be conveyed in the form of public statements and speeches, press releases, conference proceedings, information and awareness campaigns, alerts on institutional websites, and even silence. Similarly, clarifications may take the form of circulars, FAQs on institutional websites, but also be made orally in public statements and speeches, delivered in press releases and so on. In the majority of cases these soft law tools are combined, and sometimes even mixed together. In their official addresses to the nation and/or to the public, top institutional figures have frequently made recommendations (sometimes bordering on paternalism) warning about the consequences of non-compliance and threatening stricter measures (in line with a traditional stick and carrot strategy). On other occasions, recommendations made by one of the institutional soft law players (the PM, the Minister of Health, etc.Footnote 96) have been combined with warnings made by other soft law players (experts, members of advisory boards, head of emergency administrative bodies, and so on). In their circulars (eg the circulars of the Italian Interior Ministry), Ministers have frequently mixed clarifications and recommendations with warnings and alerts, enhancing the overall normative impact of soft law.Footnote 97 Combinations of different soft law tools have also been made possible thanks to new Covid-19 webpages on most soft law players’ institutional websites (eg those of independent agencies and trade unions). These act as shared platforms for a wide range of soft law tools varying in form, content and origin (recommendations, press releases, alerts, conference proceedings, and international, domestic, and sub-national standards). A very interesting soft law tool, which has already been used in the healthcare sector, is that of information and awareness campaigns, which have played a key role in drawing public attention to Covid-19-related effects and risks, and the healthcare measures to be put in place. Such campaigns have generally complemented existing hard or soft law measures, with the aim of promoting awareness and compliance and countering fake news and denial of the Covid-19 pandemic.Footnote 98
In this context, particular attention needs to be paid to the letters or emails sent by the Grand Duchy of Luxembourg during the Large-Scale Testing project to monitor the evolution of Covid-19 infection within the population, in order to maintain the infection rate at a very low level by regularly testing representative samples of the population.Footnote 99 These were a formal invitation to citizens to help resolve the problem and an effective way of soliciting their sense of civic duty, as the text shows: ‘Dear Sir or Madam, We are all part of the solution. By participating in the Large-Scale Testing, you help to protect yourself and your fellow citizens in the best possible way. For this reason, we invite you today to a Covid-19 test’. Such an invitation can indeed be regarded as a sort of recommendation addressed to the residents of the country and can therefore be included in the broad concept of soft law outlined above.
This brief overview allows us to conclude that a substantive approach to pandemic-related soft law is more than ever necessary to analyse this multifaceted phenomenon and the new developments it has brought about. The only soft law tool largely used by regulators in strategic markets, but left to one side during the pandemic, was silence. As explained in more detail, below (in Part III), pandemic-related soft law has given rise to a fluid, experimental, and ongoing normativity, creating a conversational-style regulatory cycle.
D. The Many Roles Played by Soft Law in the Pandemic
In its 2013 comprehensive study on droit souple, the French Conseil d’État outlined four soft law basic functions: soft law (1) replaces hard law when it is not possible, or it is too difficult to use it; (2) supports the effectiveness of hard law; (3) is a long-lasting alternative to hard law; and (4) helps in the event that new phenomena appear on the horizon.Footnote 100 While the analysis of soft law measures adopted in the pandemic confirms the multifaceted nature of soft law and its ability to carry or accept these four functions, it also reveals that this classification cannot be considered exhaustive. At least to a certain extent, it needs to be expanded and completed. In this respect, comparison between different country experiences significantly adds to the study of the soft law world, far beyond the quite exceptional pandemic experience.Footnote 101 Furthermore, such comparison shows that soft law often plays multiple roles, sometimes even resulting in a continuum in which the different roles cannot be clearly separated from one other, and in which the role played depends on who, how and when, requiring case-by-case analysis. It follows that in this respect no classification could ever be conclusive or any mapping complete.
Bearing this in mind, the analysis focuses on the most important functions of soft law since the onset of the pandemic. The first can be called an anticipatory function.Footnote 102 Given the high degree of uncertainty and the consequent stress placed on decision makers, soft law acts as a sort of preparatory base for the future adoption and implementation of binding acts. In other words, soft law paves the way for hard law and/or for formal decisions by public authorities and agencies in the exercise of their powers. The anticipatory function, apparent in the first phase of the pandemic in all the countries surveyed, may to a certain extent echo the experimental role which soft law frequently has for agencies. Notwithstanding some similarities, pandemic-related anticipatory soft law, mainly consisting of healthcare and safety measures, is unique because it aims to give the institutions and the legal system enough time to frame a legal and regulatory strategy to counter the emergency, acting as an early warning mechanism. These early healthcare and safety standards and guidelines were either developed by states in conjunction with international organizations (the WHO first and foremost), or based on standards and guidelines already developed internationally or domestically (ie by China or Italy) as the pandemic spread. A good example comes from the German experience: on 16 March 2020 both the federal and Länder governments issued the first guidelines to combat the Covid-19 epidemic,Footnote 103 which were subsequently reinforced.Footnote 104 In the UK, the Cabinet Office's Staying at home and away from others guidance paved the way for the very first lockdown measures in the country, and for the Coronavirus Act of 25 March 2020.
A second important function is the linking or coordinating one. We refer to coordination here in a very broad sense, both between different levels of government, and between the various public and private players. Soft law helps create connections and links and to create a shared environment by (1) promoting convergent objectives and/or, where necessary, uniform behaviours; (2) reducing potential conflicts among the many players involved regardless of their public or private nature; and (3) soliciting recourse to the subsidiarity principle, thus overcoming some of the rigidities deriving from the distribution of competences.Footnote 105 This coordinatory role has been performed with success especially by international and European law makers. Indeed, as pointed out by A von Bogdandy and P Villareal in relation to the WHO (but this is also true in relation to other international organisations and European institutions), without the legal framework they provide, ‘the various responses of many countries under high pressure would be even more diverse and the degree of uncertainty even higher’.Footnote 106 As regards country-specific experiences, the analysis shows that the linking function is also crucial in federal and regional states, such as the cases of Germany, Italy, but also the UK,Footnote 107 prove. Were it not for soft law, the design of swift and shared anti-pandemic strategies would have added significantly to the tension between levels of government and made it more difficult for central governments to act in accordance with the principle of subsidiarity. The tendency for centralisation in Germany culminating with the introduction of the nationwide emergency brake on the one hand, and the need for standardised action highlighted by the Constitutional Court in Italy in decision 37/2021Footnote 108 on the other, does not make this less true.
Besides, soft law, and the process of discussion and negotiation that has led to soft law have helped to actively involve private players (albeit through unions and trade associations) in anti-pandemic regulatory strategy design (with positive impacts also on law effectiveness). This important functionFootnote 109 has been carried out thanks to a variety of soft law measures, such as guidance, standards of practice, informal agreements, protocols,Footnote 110 and the setting up of informal bodies and consultations developed and/or performed alongside formal sources, bodies, and sources.
A third, very important role soft law has played in the pandemic can be described as a stepping up function aimed at augmenting governance potential and overall resilience (augmented governance). On the one hand, soft law has helped design cross-sector anti-pandemic strategies, bridging different public policy areas so as to tackle the pandemic's many challenges more consistently. In this respect, soft law has also facilitated the creation of a new ecosystem-friendly governance, in which one can see the reflection of the complexity of institutional, economic, and social players and processes. In the light of this, it comes as no surprise that this stepping-up function has become particularly important as the pandemic scenario has evolved and the economic and social impacts have increased. On the other hand, soft law fosters the rapid adaptation of institutions, agencies, and administrative bodies to changes. Safe for some differences in legal systems, any time public power is at stake, due to the fundamental applicable standards of the rule of law (legislative supremacy and the principle of legality in the first place), formal adaptation processes can come to terms with the emergency scenario and legal resilience issues it opens up. Soft law specifically helps to complement, counterbalance, and redirect the roles each institution is called on to play in the anti-pandemic governance framework. Put differently, it helps find a place in the anti-pandemic governance framework, as the role played by the Minister of the Interior, independent agencies, and trade unions in the Italian experience clearly shows. In this respect, it is worth mentioning the extent to which soft law contributed to re-shaping independent agencies’ role as facilitators in many key areas, including banking, finance, antitrust issues and public procurement (see Section B above).
There is also a fourth (last but not least) key function, which consists of supporting law effectiveness and boosting legal resilience throughout the overall regulatory process, from law making to law enforcement. Besides adding clarity to anti-pandemic emergency law (through FAQs, circulars, guidance, and memoranda), promoting basic homogeneity in the application of anti-pandemic emergency law and regulatory measures while taking into account the different conditions and situations of the territoriesFootnote 111 (thanks to vademecums on already implemented or tested emergency practices and strategiesFootnote 112), counter-balancing or avoiding stricter hard law/authority-based responses and regulatory strategies severely impacting on fundamental rights and freedoms,Footnote 113 one should also consider that soft law has helped rebut fake news and negationist narratives (sometimes even inflamed by top political institutional actors in order to delay lockdown measuresFootnote 114). This has boosted awareness and spread an institution-driven narrative about the seriousness of the pandemic and the danger posed by Covid-19. This function was outlined in clear terms by the French Conseil d’État in its 2013 Report on droit souple, and can probably be considered not only the most common soft law role, but also the one that most attracted scholars’ attention, due to the fact that it calls into question the relationship between hard and soft law, and entire system of law sources as traditionally structured. Notwithstanding this, as soon as we look at it from a regulatory process perspective, the traditional soft law role has a number of different nuances, depending on the who (the soft law player), the how (the soft law measure used), and the when (the stage of the regulatory process at which soft law operates). Once the Pandora's box has been opened, it is finally possible to see what lies beyond the surface of law or rule making and to better understand soft law's back-up or accompanying function. It goes without saying that in this role, soft law has been extremely important during the pandemic, to a point that it has created a sort of expanded normative dimension able to back up the overall regulatory process, at all stages. To create such soft law continuity throughout the regulatory process, regulators have drawn from the multi-coloured palette of soft law measures, established links between different soft law measures and exploited the interplay between hard and soft law (see Part III below).
In conclusion, the research outputs show that all traditional soft law functions have come into play to help countries and institutions, at all levels of government, fight against Covid-19 and the pandemic's negative impacts on the economy and society. This converging and aggregate strategy, amplified by the vast range of both soft law players and tools described above (Sections B and C), clearly aims to fully exploit soft law's potential. Moreover, there is evidence that, thanks to its multiple roles, soft law has not only supported law effectiveness at all stages of the regulatory process—from law making to law enforcement—but it has also enhanced and expanded overall resilience of legal systems and their capacity to address public policies in large ecosystems, thus connecting multiple areas of scope and objectives and reaching out to vast audiences and numbers of interested parties.
E. Drawing Lines between Countries
If comparative law has always been a source of inspiration, the current pandemic shows an emulative trend among countries. Many are the similarities among the measures adopted by the selected countries to counter Covid-19. The completely new nature of the threat, absence of precedents to be taken into account, and consequent experimentalism has pushed law makers to observe each other and to opt for the same solutions, when these have proved to be successful. As Italy copied China, so the other European countries took inspiration from Italy, despite their initial criticism regarding the first Italian lockdown. Indeed, Italy was the first country in Europe to introduce restrictions, followed by Germany, France, and others. In this ongoing open-learning environment, also thanks to soft law, experimentalism becomes learning by doing.
Such similarity can also be regarded to some extent as the product of the close link between science and law during pandemics.Footnote 115 Indeed, the current situation has shown very clearly that public strategies to fight the pandemic must be based on scientific knowledge and expertise,Footnote 116 and that Covid-19 legislation depends on the progress made by those latter, on the level of agreement between scientistsFootnote 117 and on the result of the experimentation (eg in relation to the types of vaccines). In this context, soft law takes on a remarkable importance, being able, on the one hand to manage the difficulties of incorporating science in law, and on the other hand to keep up the continuous development of scientific research with the uncertainty and at times predictability of its outcomes as well as to take into account differences of views among health experts. In other words, soft law acts as an important filter and adaptor.
Furthermore, in all the selected countries, soft law was used at the beginning of the Covid-19 crisis in order to bypass various deadlocks at different stages of the pandemic crisis, depending on country-specific features (socio-economic, political, legal, and cultural). Nevertheless, the nature of these impasses is as different as their solutions, given the peculiarities of the forms of government, equilibrium between the powers, and different level of decentralisation. In Germany in March 2020, the issuing of common guidelines by federal and state governments looked to be the only choice that both respected German cooperative executive federalism and the competences in the case of contagious diseases laid down by the Infection Protection Act of 20 July 2000. Thus, soft law can be regarded as a preliminary coordination tool that is deferential in respect of the setup of competences between the Federation and the Länder. However, on 27 March 2020, the Infection Protection Act was substantially amended by the Act on the Protection of the Population in the Event of an Epidemic Situation of National Importance,Footnote 118 which introduced the concept of an epidemic outbreak of national importance (Epidemische Lage von nationaler Tragweite), conferring in such a case more powers on the Federation and the Federal Ministry of Health. The aforementioned act was approved very quickly thanks to the grand coalition and some precautionary actions (reduced attendance at the Bundestag and temporary amendment of the parliamentary regulation on the structural quorum).Footnote 119 As a result, the Bundestag declared the Covid-19 crisis an epidemic outbreak of national importance. Therefore, the German Federal Government did not resort to declaring a state of emergency in accordance with Article 35, paragraph 3 of the German Basic Law. This was a path that could have been legally possible, albeit with some difficulties linked to the fact that the rule does not explicitly mention the epidemic scenario, presupposes that the Länder are unable to deal with the situation, and does not confer substitutive power on the Federation. The Covid-19 crisis law instead passed through the German Parliament, which further intervened in April 2021. Indeed, on 21 April 2021, the Infection Protection Act was again amended to remedy the heterogeneity of the solutions adopted by the Länder (the so-called ‘federaler Flickenteppich’)Footnote 120 and introduce a nationwide emergency brake (‘bundeseinheitliche Notbremse’), according to which if the seven-day incidence in a district or town exceeds 100 new infections per 100,000 inhabitants on three consecutive days, additional measures standardised at national level and listed in Article 28b of the Infection Protection Act apply.Footnote 121 In Italy, after an early stage regulated by a mix of soft law acts (mainly Health Minister's circulars) and Civil Protection's ordinances, the Government largely relied on the legislative power granted by article 77 of the Italian Constitution, which allows it to pass decree laws in the event of emergency situations, to introduce the first nationwide lockdown measures.Footnote 122 Based on these decree laws (subject to subsequent conversion into law by Parliament), the Prime Minister was delegated to decree, based on the pandemic risks, the list of healthcare, distancing, and lockdown measures. This example of subsidiarity dramatically reinforced the central level of government, whereas due to the constitutional framework in place, coordination with the regions and local authorities was inevitably mainly carried out on the basis of a soft law method of coordination. It was only between the first and the second wave of Covid-19 that traditional coordination bodies came back into vogue, alongside soft law coordination methods. In France, Parliament passed a new emergency government framework law, parallel to the emergency framework already provided for by the National Healthcare Law and which provided the legal basis for the first lockdown measures at the very beginning of pandemic crisis,Footnote 123 whereas soft law became widely used later on, especially to regulate health and security standards in workplaces. This is a national direction centre in the hands of the executive. In the UK, following the Cabinet's initial Stay at Home soft law Guidance, the Coronavirus act provided the necessary legal basis for both central government and the devolved countries, explicitly allowing the use of certain soft law measures by public authorities. The use of soft law as a pre-law in the UK clearly shows the effort to safeguard, at least formally, Parliament and its legislative supremacy (together with its key constitutional importance).
Another aspect worth mentioning is the difference in the use of soft law between the first and the second wave of Covid-19 at the government level. In the first phase, soft law was the principal means for the introduction of the initial restrictions, undertaking an essential anticipatory and coordinating function. In the second phase, soft law to an extent played a secondary role, being absorbed and incorporated into hard law. Nevertheless, it played an important part in providing a major boost to the vaccination campaign, given the difficulties in imposing a legal obligation on receiving the vaccination for both material and procedural reasons: the right to the self-determination of individuals and decision making on the matter (Article 32, paragraph 2, of the Italian ConstitutionFootnote 124 and Article 2, paragraph 2, of the German Basic LawFootnote 125 contain a statutory reservation).Footnote 126
In addition, it has to be considered that if ‘taking soft law seriously’ is to a certain extent easier in common law systems because of a legal culture based on case law and on precedent, which is also proven by the fact that in common law jurisdictions direct court actions against soft law instruments are regarded as admissible,Footnote 127 it is also true that the distance between common law and civil law and their traditional differences have progressively shortened and lessened.Footnote 128 After all, the circumstance that in the context of the current pandemic the French Conseil d’État has not only reviewed, but also suspended recommendations issued by the French Ministry for Solidarity and Health for residential care facilities for the elderly is a clear signal in this direction.Footnote 129
Moreover, it cannot be overlooked that in all the countries analysed, liberalisation and deregulation have strongly stimulated the use of soft law and involvement of private players in the regulatory process through soft law in many fields (eg the banking and financial sectorsFootnote 130), so that such use becomes not only generally accepted, but also internalized and treated as an ordinary tool.
Finally, trust in soft law is a growing phenomenon that goes beyond the type of legal system and could be boosted by leveraging the sense of civic duty of citizens and the principle of subsidiarity between public and private sectors.
III. HARD LAW AND SOFT LAW INTERACTION IN THE PANDEMIC
Based on the soft law comparative atlas outlined above, we can now draw a few conclusions regarding the impact soft law has on hard law, on the system of law sources (Part III) and the bright and dark side of soft law (Part IV).
In spite of only being the tip of the iceberg, the interplay between hard and soft law sourcesFootnote 131 has not only been the new normal during the pandemic, it has also given rise to new forms of mutual support and exchange which have reshaped law making and hard law sources.Footnote 132 However, in accordance with the proposed methodology, it is important to consider this phenomenon within the wider context of the overall regulatory process.
As described above, in its back-up or accompanying function (see Section II.D), pandemic soft law creates a sort of expanded and amorphous dimension able to hold together and improve the overall regulatory process, at all stages. The output is a new regulatory continuum Footnote 133 where the sequencing between law making, law implementation, and law enforcement becomes weaker, less apparent, even illusive, and a new circularity adds dramatically to the dynamism and openness of regulatory processes. In this respect, we need to take into consideration the functioning and features of the soft law web as restructured according to the country-specific pandemic governance framework. More specifically, the number and type of soft law makers (operating at all stages of the regulatory process, including that of judicial review), extremely varied range of soft law measures and multi-faceted spectrum of functions all have a multiplier effect on the interoperability and interconnectivity of the soft law web and leave the regulatory process—at all levels and stages—widely exposed to soft law interference.
The new regulatory landscape operates as an open environment in which legal rules can be experimented, anticipated, tested, clarified, completed, and adapted, on an ongoing and mainly informal basis. Apart from recalibrating the traditional centrality of law making with respect to the other stages of the regulatory process,Footnote 134 this experimentalismFootnote 135 characterises and shapes the capability of emergency law and governance to react to pandemic threats, and proves itself to be an ally in the struggle for improving overall legal resilience in all the countries surveyed.
Incidentally, as briefly mentioned above, the continuous—if not chaotic—interplay between hard and soft law sources reshapes hard law sources from the inside and partially recalibrates the system of law sources. In this respect, research outputs show that pandemic (hard) law has sometimes posed as soft law, pretending to be non-binding and/or outside the prescriptive paradigm. For example, in the relatively complex anti-pandemic legal framework in Italy, expressions such as ‘it is recommended’ or ‘it is strongly recommended’ have frequently been used, generating interpretative uncertainty and requiring soft law further downstream in order to dissipate the confusion in which civil servants, businesses, and citizens had been left. Similarly, hard law legal vocabulary can be found in soft law sources, as in the British ‘Staying at home and away from others’ guidance, and subsequent guidance, which use expressions such as ‘are effective immediately’, or ‘come into effect’.Footnote 136 This lack of clarity has also been perceived by the courts. In fact, the Administrative Court of Bavaria (Germany) considered the provisions of the regulation of the Bavarian Ministry of Health and Care on the reduction of social contact and minimum interpersonal distance to be mere recommendations or policy positions also on the basis of the language used.Footnote 137
Moreover, in many domestic jurisdictions, pandemic (hard) law sources have tended to formally recognise soft law and the role it plays. Mainly due to soft law's permeability and ability to by-pass legal boundaries such as competences, areas of scope, and procedural standards unfit for the pandemic timing, they frequently shift onto soft law sources (including international sources) the task of ‘regulating’ or catering for healthcare and safety measures. On certain occasions, they explicitly endorse protocols signed by businesses and workers in affected market sectors.Footnote 138 Last but not least, they sometimes reinforce the legal significance of soft law by attributing binding force to it, or simply by copying it.Footnote 139 These forms of mutual support, and/or merging between hard and soft law sources are neither new nor surprising. The pandemic has simply facilitated the emergence and mixing of all the different forms of interplay between hard and soft law sources in regulators’ attempts to boost the effectiveness of anti-pandemic regulatory strategies and policies. Apart from the risk of losing some of the benefit deriving from the use of soft law, it goes without saying that the more soft law gains ground on the area of traditional normativity, the more legal systems will be prepared to take its legal effects seriously and will be equipped to safeguard affected parties and interests, in terms of transparency and procedural rules, liability, and enforceability. In this respect, although for different reasons, the British and the French legal systems have proved themselves to be the frontrunners among surveyed countries: in the UK there is a clear general legal framework aimed at safeguarding transparency and democratic control over soft law making.Footnote 140 In France, interesting case law on soft law enforceability has been developed by the Conseil d’État, during the Covid-19 pandemic and precisely with reference to pandemic soft law measures.
Here again, as outlined above (Section E), country-specific legal (and constitutional) features and culture dominate in that they set the bar and draw lines which cannot be crossed (see Section II.E): ie common law constitutional principles such as those of parliamentary legislative supremacy and the separation of powers, the legal law making culture, and the soft law making regulatory framework in place account for many of the differences between the British and the Italian experiences in shaping the interplay between hard and soft law in countering the pandemic.
IV. THE BRIGHT SIDE AND THE DARK SIDE
Soft law operates outside the prescriptive paradigm and therefore avoids the enforcement trap and related non-implementation issues. It therefore has many merits, being able to:
(1)) complement comprehensive/holistic strategies:
(a) by shaping and coordinating international, supranational, and domestic policies which are key to fighting an emergency situation like the present one;
(b) by developing and spreading global/international/transnational standards;
(2) support and structure new alliances and networks, open to a multiple set of players promoting the aforementioned shared holistic strategies and standards;
(3) enhance governance potential, allowing for the prompt adaptation of institutional players’ roles; and
(4) give rise to a fluid and shared resilient normativity, essential to extending the reach and boosting the effectiveness of both international and domestic laws and policy strategies at all levels and stages of regulatory processes.
Furthermore, in the event that new phenomena like the current Covid-19 pandemic arise, soft law has the added benefit of offering legal systems a powerful learning machine, in that it is a means to test legal frameworks and regulatory strategies throughout the regulatory process and to learn from experience, at all stages.
However, all that glitters is not gold. Indeed, the virtues of soft law can also be its vices. The complexity, informality, and volatility of the soft law web, driven by the pandemic, significantly increases the complexity of governance frameworks and regulatory scenarios, and may negatively affect the ability to tame the pandemic, generating a certain amount of confusion, and placing an additional burden on regulators, policymakers, and citizens. These risks, together with the lack of clear borders between hard and soft law, could lead to a sort of regulatory schizophrenia/inflation, for which citizens, businesses, and legal practitioners are unprepared and by which they could be overwhelmed.
In addition, as a flexible and informal normativity, which can promote legal system resilience at a time of crisis and partially obviate hard law and governance inadequacy in tackling an emergency promptly, soft law also creates uncertainty and rule of law issues, due to the risk of falling into excess/abuse precisely in that, at least to a certain extent, it allows proper democratic (and scientific) accountability processes to be by-passed, and the risk of being subject to misleading pressure from private interests and foreign countries’ influence.Footnote 141 These risks are particularly dangerous in situations where fundamental rights are severely limited, as they have been by distancing and lockdown measures.
Moreover, it is worth noting that the positive impact of soft law on law effectiveness is proportionate to the effectiveness and enforceability of soft law itself. As soft law tools are non-binding, such enforcement mainly depends on the responsiveness of the different actors involved and on the country-specific sense of individuals’ civic duty. Therefore, soft law effectiveness inevitably comes up against (1) the issue of its justiciability, and (2) any related liability for damages. In this respect, although the justiciability and enforceability of soft law measures are still regarded as a hot and controversial topic in civil law systems, significant steps have been taken in many domestic jurisdictions.Footnote 142 Besides, courts tend to hold certain soft law measures in great respect, especially in the case of international and European soft law.Footnote 143 On the other hand, the non-binding nature of soft law measures makes the allocation of charges complicated, as the decision to comply with them is a free choice of the recipients of such measures and the damage suffered is therefore their own responsibility.
V. CONCLUSIONS
Soft law plays a crucial role in fostering the resilience of contemporary legal systems and, consequently, in increasing citizens’ trust in law and institutions at different levels.Footnote 144 Indeed, while traditional legal instruments appear ill-equipped to face the challenges of the contemporary world, conversely, soft law—being a fluid normativity that operates in a composite and highly flexible web of international, supranational, domestic, and sub-state players—not only significantly underpins the effectiveness of legal systems at all levels (international, supranational, and domestic) and at all stages of the regulatory processes (from rule-making to law-enforcement), but also allows highly flexible direct forms of communication/dialogue across the international order on the one hand, and between institutions, individuals, and businesses on the other.
As the research outputs show, pandemic soft law has played a key role in all the countries surveyed. This success can only be partly justified by the features of soft law (informality and adaptability in the first place). Much of it has been determined by the emergence of new (anti-) pandemic governance frameworks, in which a different set of players and entities has appeared and the roles of all the institutional players have been sharply redefined. This complex collection of players has acted as an accelerator and a multiplier, opening up a scenario of creative testing of the use of soft law tools. The form, substance, and functions of soft law have therefore been mixed, paving the way to new practices and bringing innovation to the soft law atlas and its conceptualisation. Moreover, soft law measures have not only connected with each other and created soft law chains or loops, but they have also combined strongly with hard law sources and other regulatory tools, pushing forward the traditional interplay between hard and soft law as well as between hard and soft governance. Despite the fact that soft law has rapidly gained ground in the area of traditional normativity thanks to the pandemic, the analysis confirms that it must be studied in connection with the overall regulatory process, this being the broader landscape in which public policies are regulated, implemented, and enforced on an ongoing basis. That said, the research also proves that the traditional conceptualisation of hard and soft law as opposites (the hard and soft law divide) has become inadequate and needs to be redefined, moving towards the idea of an expanded normative dimension instrumental to regulation and governance goals. The decision on whether, and to what extent, soft law is to be taken more seriously in the legal field (ie in terms of complementarity with hard law sources, accessibility, procedural standards, enforceability, and limits) is for law and rule makers to make. However, this will obviously impact on the appeal of soft law and on its ability to support actively hard law and governance: a more expensive, difficult-to-issue, time-consuming, rigid, and harder soft law may end up being useless. An approach based on self-restraint seems to be highly preferable. Besides, as it has been made clear by pandemic case law, if there are areas that cannot be left uncovered by hard law sources, soft law is free to take its course by relying on its own strengths.
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