How binding are binding guidelines? An analytical framework

Abstract

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.