How binding are binding guidelines? An analytical framework

Bibliographic Data

ID9784018
AuthorsPaul Daly (0000-0002-2901-6765, Full Professor and University Research Chair in Administrative Law & Governance University of Ottawa, corresponding author)
Year2023
Volume66
Issue2
Pages211-229
Publication date2023-06-01
Peer ReviewedYes
Open AccessYes
TypeARTICLE
VenueCanadian Public Administration (JOURNAL)
Journal identifiersISSN: 0008-4840 • E-ISSN: 1754-7121
PublisherWiley (PUBLISHER • GB)
DOI10.1111/capa.12519
OpenAlexW4382449017
LanguageEN
Citations received2
References cited9

Guidelines are a type of “soft law” that play an important role in contemporary public administration. Despite the propagation of guidelines in recent decades, their legal effects are often difficult to classify. Clearly, guidelines are neither legislation nor delegated or subordinate legislation, but they are nonetheless designed to influence people's behaviour. Distinguishing binding from non‐binding guidelines is an important issue because the permissible scope of their use often depends on bindingness. Yet there is no analytical framework available to determine bindingness. To fill this gap in the literature, I develop an analytical framework consisting of three indicia which help to distinguish binding guidelines from non‐binding guidelines: the presence or absence of imperative language, the level of detail and precision and the extent of effects on third parties. With the help of numerous examples drawn from the Canadian legal system, I explain how to distinguish binding from non‐binding guidelines, bringing analytical clarity to an important area of contemporary public administration

CLARITY · Law and economics · Legislation · Management science · Political science · Scope (computer science · Sociology · Chemistry · Computer Science · Criminal Law and Evidence · Engineering · Judicial and Constitutional Studies · Law · Regulation and Compliance Studies

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