Adaptive governance and legal culture: how do different legal cultures facilitate participation

The law in the field of spatial planning and urban environmental governance is in a state of flux. Various jurisdictions are abandoning command and control type regulation and litigation-based conflict resolution in favour of frameworks that rely on participation, co-creation and experimentation. These new frameworks should be more flexible and make adaptive solutions possible to increasingly complex spatial problems of governance. At the same time researchers are considering novel ways to increase the participation of citizens and other parties in decision making. Living labs, serious gaming, citizen councils and drama labs are examples of various ways to involve citizens. However, unless the institutional structure changes, these novel ways have little chance of making an actual impact. The new Dutch Environment and Planning Act which entered into force on January the first of this year, is a case in point. It calls for more participation, holistic visions based on the input of various stakeholders and public-private cocreation of spatial development. In order to facilitate regulation that is more participation based the Act also calls for a cultural shift among policy makers and civil servants. A prevailing mentality should emerge which is open, accommodating and facilitating towards participation of stakeholders and their initiatives, instead of limiting and legalistic. Other examples of jurisdictions moving in this direction are Belgium with its Decree on Complex Projects, Poland with its 2023 review of the Spatial Planning Act and Norway’s Planning and Building Act. This example raises the question that we address in this paper; how open is the legal culture towards the level of participation in policy making needed to facilitate adaptive forms of law and governance? By combining the literature on participation with the literature on adaptive law and Dispute System Design, we assess the level of openness to participation needed to consider the law to be adaptive. Subsequently we survey the legal systems of spatial planning of the Netherlands, Belgium, Poland and Norway to assess whether they possess the institutional framework and legal cultural practices to facilitate the demands of participation and if not, which changes would be required. The article builds on the theoretical and empirical work done in the JPI-Urban Europe funded CONTRA-project undertaken by the Universities of Tilburg, Warsaw, Oslo and Antwerp and has an interdisciplinary angle, combining legal insights with input from Political Science and theater. It aims to bring an interdisciplinary approach to legal and social scientific approaches to conflict resolution in the field of environmental management and spatial planning.