Soft Law and Ombudsman
Introduction
Not all ombudsmen might know that they use the Soft Law toolbox. This paper aims to show how they do it and that the fluid system of the bottom-up building of norms is appreciated both by public and administration.
What is Soft Law?
The difference between “normal” laws and Soft Law is that the latter is not a product of a legislative body: Soft Law is a bottom up developed standard that through different processes becomes a legal standard, often a result of a negotiation process. The concept “Soft law” originated in international public law and it is nowadays found in many other fields of law. It appeared during treaty negotiations, when negotiating parties (states and NGOs) were looking for the most flexible option that would let them avoid immediate and uncompromising commitment to rules that may desirable today but may not be desirable tomorrow. In the not-yet-binding “Soft-Law-phase” contracting parties work on a basis of good faith, building a common view on future law/standards. It gives a free testing ground, i.e. room to test aspirational goals, it can enable coordinated compliance and it makes it possible to deepen cooperation and exchange before surrendering to some measure of control over legal rules. Typical for Soft Law is the transfer of rules applicable in one field of knowledge to other areas and the so called hardening process: the gradually bigger influence of a not (yet) binding norm because it is quoted more and more and starts to have direct influence on the practice of parties. It gives time to develop an Opinio Iuris; commonly accepted interpretation of treaties . Soft Laws are often referred to as: WHAT: Statements, Conclusions, Principles; HOW: Codes of Conduct (= Co...
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Conclusions
Given that the Dutch ombudsmen have to formulate their own set of norms, we see that they do not “unexpectedly parachute” new rules but - on the contrary - use processes known from the Soft Law theory to develop norms. The Ombudsmen use existing rules and apply them in new areas. The birth of an Ombudsman Code of Conduct (like the one on written communication) usually is a slow process, where the Ombudsman, in open communication, much discussion and many alterations, tries to find generally accepted sources of norms and bring these together in a specific set of norms. Codes of Conduct and Ombudsman statement about the applicability of norms from other fields of law are much appreciated by the administration and public, serving as guidelines and instructions for the civil servants and an indicator for the public on what can reasonably be expected .
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