ABSTRACT
This chapter elaborates on the conclusion of the former chapter: ethics and law need to be more integrated again. Since the latest financial crisis, law has been subject to many changes. In Europe – and particularly the Netherlands – this has resulted in many specialised and fragmentary types of regulation for different industries and for financial institutions in particular. Where the European central bank (ECB) formally took over the primary responsibility for prudential super - vision of banks in the European Union in November 2014, it is especially the central banks of member states that specialise in supervising the behaviour and culture of the local financial institutions.2 The implementation of this type of law and legislation is relatively new, but it does not always seem to offer an adequate framework to prevent abuses of enterprises, institutions and financial organisations. In highly competitive markets with large amounts of capital at stake, legal problems readily occur when it appears that (national) law is unable to regulate markets and the subsequent actors effectively. Moreover, a trend can be detected where new legislation has more principles and codes based in Europe and where binding technical standards of local supervisors often undo the freedom of interpretation. Self-regulation should be an important driver, but in times of crisis hardly effective. The principles not directly laid down in hard law prove themselves in practice to anchor in different types of law making. As a result, these principles acquire the status of legal norms that are observed in different types of soft law and to different degrees. In legal science, legal sociologists study the social impact of such codes and principles, whereas in philosophy of law, the moral basis of such ‘soft’ regulation is the object of study. This leads to an interesting question: based on what criteria can we distinguish legal provisions from non-binding rules?
