Submission Title
Keywords
soft law, administrative law, standard of review, constitutional law, charter, administrative discretion, rule of law, free speech, university
Document Type
Article
Abstract
Soft law is a puzzle. It shapes a wide range of public decision-making, but its contents are said to lie beyond the rule of law. This paper explores the largely uncharted terrain of soft law in Canada. It is organized in three parts. Part one examines the existing treatment of soft law in Canadian jurisprudence, including soft law’s relationship with administrative law concepts such as the standard of reasonableness and the Constitution. Part two proposes the foundations of a new framework to characterize soft law, termed the “spectrum approach”. This approach aims to assist courts in responding to the influence and variations of soft law in Canadian society, and to begin to assess soft law on its own terms, rather than in relation to other concepts. Finally, part three applies the spectrum approach to a case study of Ontario university free speech policies. In sum, we argue that soft law is a powerful, practical force in Canadian society that should be subject to meaningful oversight by the courts.
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.
Citation Information
Sossin, Justice Lorne and van Wiltenburg, Chantelle.
"The Puzzle of Soft Law."
Osgoode Hall Law Journal
58.3 (2021)
:
https://digitalcommons.osgoode.yorku.ca/ohlj/vol58/iss3/12