Governing through vision, the blurring line between law and policy

The classic view of law is that it is a system of rules issue by the competent authorities to govern the behavior of its subjects. The famous philosopher of law Herbert Hart (1961) stated that law contains two kind of norms, primary norms that govern the behavior of subjects and secondary norms that determine the competencies of norm setting institutions. Primary norms are ordinarily considered to be prohibitions and commands and are called behavioral norms because they prescribe or forbid certain behavior. In cases of conflict parties may approach a judge and argue that the counter party violated one of these primary norms. The function of the judiciary in this case is conflict resolution and he operates autonomous from the legislator. The judge autonomously checks whether these norms are violated, irrespective of the social consequences of the violation or of his or her verdict. This picture of law has always been too simple, but currently authors stress that law is in a phase of transition. Law is becoming adaptive to social needs, (Arnold & Gunderson) , it sets goal oriented ‘aspirational norms’ (Westerman 2018) which are geared towards prevention and precaution (Pieterman 2008, Arnoldussen 2016) . A key factor in this transition is the intention to prevent conflict through law, instead of resolving it after it has occurred. This transition entails a number of legal instruments that increasingly blur the line between hard law and soft law and between law and policy (Westerman 2018). The question is whether we do not lose something specifically law-like when law becomes an ex-ante responsive instrument of steering. My hypothesis is that Law’s transition from a fixed set of rules emphasizing legal certainty to an adaptive instrument to anticipate flexibly on social developments may entail more invasive government control than traditional legal instruments do. In this paper the issue is investigated by examining the policy instrument of the ‘environmental and spatial vision’ embedded in the new forthcoming Dutch Environment and Planning Act. The need for municipalities to draft an ‘environmental vision’ is mandated by law, but is itself a non-binding document in which the municipality, together with stakeholders, formulates a vision for future development. By conducting an analysis of the municipal visions through the framework of adaptive law, we look at the ways in which social imaginaries are used to minimize or prevent social conflict and how they prefigure future, legally binding instruments. These political and social imaginaries will give insight on how coalitions of public-private governance relations are solidified and how they in turn become normative goals, irrespective of their legally binding quality.