Soft Law and Policy Rules in the Netherlands

Abstract

Soft law provides a substantive norm from a professional organisation with some specific expertise in an administrative law procedure. In this paper I explore the many functions soft law has in the continental legal systems. The question that is addressed in this paper is: what are the consequences of soft law for administrative decision-making in the Netherlands and in other continental European systems?

Though the Dutch legal system stands in the tradition of continental legal systems like the German administrative law, there are some differences. In this paper I reflect on the function of soft law from a continental European point of view and focus especially on the situation in the Netherlands.

First I provide an overview of the many functions of soft law from a continental European perspective (par 2). From these many functions I then derive some general characteristics of soft law that are applicable in any legal system and that play a role in the codification of soft law in the Dutch legal system (par 3). Since soft law almost by definition exists on the linkage between the law in the books and the law in action, I then focus on the application of soft law and highlight some relevant characteristics of that aspect as well, again first from a more general continental point of view and then the way the Dutch system handles the application of soft law (par 4). The last section (par 5) contains some concluding remarks with regard to the added value of soft law in administrative decision-making.

Keywords: soft law, rule of law, equality, law in action, bureaucracy

JEL Classification: D73, K20, K23