The promise of the Omgevingswet

to transform the culture of Dutch planning

This post was written by Danielle Chevalier.

The new Dutch Environment and Planning Act (‘Omgevingswet’) asserts itself as a gamechanger, set on changing the general bearing of Dutch planning from a demeanor of ‘no, unless..’ to ‘yes, provided that’. This begs the question however whether planning acts can change the practices and culture of planning actors, and consecutively institutionalize a new governance culture. [1] Can law be an instrument of change? It so happens that this question is also a main theme within socio-legal scholarship, and – spoiler alert- the verdict is still out. Nonetheless, insights established in the socio-legal domain offer interesting searchlights for the consideration of this promise of the Omgevingswet.

To start with, the question whether law can bring about change is actually not one single question, but rather the compilation of several questions, namely: What is law? What constitutes change? And: What triggers what? Does law bring about change? Or does change generate law? [2] Considering the question whether law can bring about change hence breaks downs into two steps: The first step is to define what is meant by law and what is meant by change. Once these issues have been defined the second step is to examine the dynamics between law and change, in casu the interplay between the Omgevingswet and the practices and culture of Dutch planning.

The question on what is meant by law is more complicated than a non-lawyer might think, and is subject to considerable debate. Within the legal domain there is the tradition to define law as those rules that have been emanated by a competent legal institution. [3] Within the socio-legal domain one approach is to talk about ‘normative orders’, as a means to investigate which rules are in force in a given context. [4] Different normative orders can operate simultaneously in any given context, with (formal) law not being the only regulatory frame informing how people act and behave. [5] A brilliant study into the Dutch construction industry demonstrates how attempts by both Dutch and EU anti-trust laws failed to alter practices in this industry to use cartels and price-fixing, because the formal law ran counter to the internal normative order of the field. [6] Expanding the perspective from state law to normative orders enables the investigation which orders are in play in a given context, what the rules and practices are of the different normative orders, how they interplay with each other and how they subsequently lead to the practices adhered to in a given context.

The second question pertains to what is meant by change. In the query into practices and culture of planning this question in turn divides into three related sub-questions: what are the practices of planning; what is the culture of planning; and, what constitutes change? Once these issues have been defined, the dynamics between law and change can be investigated and traced; is it law bringing about change in the practices and the culture of planning, or is it changes in the practices and the culture of planning that is bringing about (new) law? Within socio-legal scholarship the distinction is made between regarding law as a dependent variable versus regarding law as an independent variable. The idea that law can be an instrument of social change considers law as an independent variable. Alternatively, regarding law as a dependent variable argues that law is a social institution that changes as society changes. Contemporary wisdom holds that law and society are mutually constitutive [7] meaning changes in the practices and the culture of planning will change planning law, and vice versa changes in planning law will change the practices and the culture of planning.

Engaging law as an instrument of change then requires understanding how changes in law on the one hand and changes in the practices and the culture of planning on the other hand interact. Understanding these dynamics is pivotal to institutionalizing the desired change in governance culture.

[1] These questions were at the core of the UGoveRN webinar on 11 February 2022: https://ugovern.eu/event-details/understanding-recent-changes-in-belgium-and-the-netherlands-planning-law

[2] Armingeon, K., Bertozzi, F., & Bonoli, G. Albiston, Catherine R.; Leachman, Gwendolyn M. (2015): Law as an Instrument of Social Change. In: International Encyclopedia of the Social & Behavioral Sciences: Elsevier, S. 542–549.

[3] See also https://ugovern.eu/post/what-is-law by Tobias Arnoldussen.

[4] Merry, S. E. (1988). Legal pluralism. Law & Society Review, 22, 869.

[5] Moore, S. F. (1972). Law and social change: the semi-autonomous social field as an appropriate subject of study. Law & Society Review, 7, 719.

[6] Hertogh, M. (2010). Crime and custom in the Dutch construction industry. Legisprudence, 4(3), 307-326.

[7] Ref footnote 2