Soft Law Governance in Times of Coronavirus in Spain

Early in the COVID-19 pandemic, between March and July 2020, Spanish national and regional authorities made extensive use of soft law mechanisms to fight the spread of the virus and to tackle the consequences of the crisis. Soft law was used either as an instrument in and of itself, or as a justification for hard law instruments, with more than 200 non-binding measures being enacted by the state and by the Autonomous Communities. Spanish courts also used soft law as a tool to interpret existing hard law instruments, Such uses give rise to concerns about the transparency of administrative action and the principle of legal certainty. Moreover, the widespread use of soft law to justify the adoption of binding measures restricting fundamental rights might have consequences for democratic accountability and judicial control of executive action. This article indicates the need to reconsider the current system of constitutional and legal constraints attached to this form of regulation, by introducing some binding procedural rules relating to its adoption and its publication, and by clarifying its legal effects and the mechanism through which it can be enforced by courts.