The Puzzle of Soft Law

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 I examines the existing treatment of soft law in Canadian jurisprudence, including soft law’s relationship to administrative law concepts such as the standard of reasonableness and the Constitution. Part II 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 III 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.