Special issue: Land-use, planning and the law

Copyright © 2007 SAGE Publications

(Los Angeles, London, New Delhi and Singapore)
Vol 6(2): 146–163
DOI: 10.1177/1473095207077586
http://plt.sagepub.com

PLANNING, LIBERTY AND THE RULE

OF LAW

Stefano Moroni
Politecnico di Milano, Italy

Abstract The article aims to demonstrate that neither the British

planning system nor Continental planning systems adhere perfectly to the
classical (liberal) ideal of the rule of law. It suggests a different approach
to the regulation of land use more in line with this ideal, based on the
assumption that it is not only relevant but also one that cannot be
renounced. The objective is to show that the more complex an (urban)
system becomes, the greater is the need for abstract, general and end-
independent rules to favour a sort of beneficial, spontaneous order – self-
coordinating and polycentric – of individual actions.

Keywords certainty, discretion, flexibility, liberalism, planning, rule of law

Introduction: back to a substantive ideal of the certainty of the law

Planning systems in Continental Europe are generally thought to adhere to the
classical ideal of the ‘rule of law’ – and, consequently, to be able to guarantee
the ‘certainty of the law’ – due to the strict regulatory nature of the master plan
and zoning ordinances (as in traditional Italian planning practices, for example),
while the British planning system is considered to be a partial departure from
this ideal due to the flexible and discretionary character of British planning
activity and decision-making.1 The aim of this article is to critically examine this
broadly accepted view.
In particular, it will seek to demonstrate that this traditional vision of
the contrast between Continental planning systems (characterized by a kind
of planning that I will call ‘imperative’) and the British planning system

146
 Moroni Planning, liberty and the rule of law 147

(characterized by a kind of planning that I will call ‘flexible’) is acceptable only

if we adopt a simplistic – and historically unconvincing – conception of the rule
of law (and of the certainty of law), that is, the idea that the latter simply
requires having some sort of fixed regulations (independent of the kind of regu-
lations we use to control and guide the use of land). The article aims to show
that, if we interpret the concept of the rule of law in a more interesting (and
more liberal) manner – by accepting the proposition that it necessitates a
broader idea of the general predictability of actions by the state, that is, the idea
that any law should be abstract and general and be applied equally in an incre-
mentally changing system – then neither the planning systems in Continental
Europe nor that in Britain would seem to completely adhere to it. Both, in fact,
seem to be a departure from the rule of law.2
Within this framework, I will attempt to sketch out an alternative way of
regulating land use, one that is more in line with the (liberal) ideal of the rule
of law – to my view, an ideal that cannot be renounced.

The (liberal) ideal of the rule of law

Impartiality and stability

Although some aspects of the ideal of the rule of law can be traced back to the
Greeks,3 it was only in the 17th century that it really took root, especially in
England. Focusing on the liberal4 ideal of the rule of law, we can say that John
Locke (1690) can be recognized as one of its major forefathers5 and Albert
Venn Dicey (1915) and Friedrich August von Hayek (1944, 1960) as two of its
more important later defenders. For some recent interesting re-propositions,
see Randy Barnett (1998) and Trevor Allan (2001).
The rule of law is not only directly and intrinsically desirable as a decisive
component in the defence of individual liberties,6 but also indirectly and instru-
mentally desirable, because it promotes the formation of a spontaneous order
of actions – the market system or catallaxis – able to incentivize and activate
dispersed knowledge, with benefits for all.7 The relevant point here is that the
system of rules of conduct and the order of actions do not coincide in this case:
the first simply guarantees the framework within which a spontaneous abstract
order of actions can form and evolve. (If, instead, the system of basic rules and
the emerging order of actions tend to coincide, we would have a ‘made order’
that would lack many of the advantages of a ‘spontaneous order’: Hayek, 1982.)
To my mind, the proper way to understand the rule of law is to demand
that laws satisfy not only the traditional requirements of publicity and non-
retroactivity,8 but also the following two fundamental and more specific
requirements.
The first of these is impartiality, the idea being that law should apply equally
to all. This can be brought about, first of all, by producing abstract and general
rules (i.e. long-term rules that contain no reference to particular persons,
objects, etc. and regard as yet unknown cases; in other words, laws that refer to
general ‘types’ of situations or actions and not to specific ones); and, secondly,
148 Planning Theory 6(2)

by privileging negative kinds of rules (i.e. rules prohibiting individuals from

interfering with the private domains of other individuals). In short, the state
must limit itself to establishing rules regarding general types of situations,
allowing individuals freedom in each single case depending on the particular
circumstances of time and place in question.
The second requirement is stability, the idea being that rules are to be
promulgated, implemented and revised in a way that enables citizens to have
reliable expectations – in general terms and over long periods of time – with
regard to the actions of others, and in particular of the state itself. Stability is
decisive if people are to be guided by law not only in their short-term decisions
and actions, but also in their long-term ones. It can be brought about by adopting
a series of devices, in particular: producing laws, norms and regulations that are
simple and clear; avoiding ‘legislative inflation’ (i.e. the over-production of rules,
regulations, instructions, etc.); pursuing a gradual evolution of the system of laws
and avoiding continuous change (keeping in mind that what is important is not
to ‘invent’ laws, but to ‘discover’ and implement laws that have evolved spon-
taneously over long periods and been proven to work well); maintaining clear
divisions among the various powers of the state (in particular between the
legislative and executive bodies); making a clear distinction between the funda-
mental public duty of guaranteeing ‘the rules of the game’ and the supplemen-
tary one of providing services; reducing to as great an extent as possible the
discretion of public power (and in particular, of administrative levels: admin-
istrative authorities must not have direct ‘sovereign’ power over persons and
their property, and there must always be the possibility of a rigorous judicial
supervision of every administrative decision by fully independent courts or
tribunals9).
These two requirements – impartiality and stability – guarantee the
‘certainty of the law’ in a strictly liberal sense. As such, it does not reduce any
kind of uncertainty, but certain kinds of undesirable uncertainty; in particular,
the most dangerous uncertainty – that which can derive from the decisions and
actions of public authorities.
To make clearer how the ideal of the ‘certainty of law’ is different from some
traditional more narrow notion of ‘certainty’, we could say that the certainty of
law does not demand to have a rule and an answer for every possible case; on
the contrary, as Hayek (1944: 80) writes, ‘to be impartial means to have no
answer to certain questions’.
One last thing remains to be said. The ideal of the rule of law is, clearly, a
guiding ideal; in other words, conformity to the rule of law will often be a matter
of degree. However, it is a fundamental guiding ideal, and one that should be
continually pursued.

The rule of law beyond mere legality

The rule of law is then a substantive meta-legal ideal regarding what we should
consider a ‘good’ law. It is therefore something more than the mere require-
ment that law be ‘legal’, that is, promulgated by a figure endowed with full legal
 Moroni Planning, liberty and the rule of law 149

authority; a perfectly legal measure in this last sense could in fact not conform
to the rule of law. We could say that the rule of law presupposes complete
legality, yet the latter is not enough. In other words, rule by law is necessary, yet
it is not yet rule of law.
The doctrine of the rule of law implies then that political majorities cannot
introduce any kind of law they like, but are themselves bound to the ideal of
the rule of law.10 As was always clear in the liberal tradition, democracy is in
fact not an absolute and unconditional value, as many seem to believe today,
but a relative and conditional one, subject to a liberal framework that protects
people, and minority groups in particular, from majority dictatorship. In other
words, a liberal institutional framework is the indispensable prerequisite of an
acceptable and viable form of democracy (Sartori, 1957; Bobbio, 1994; Allan,
2001; Dahrendorf, 2003).11
In conclusion, under the rule of law the government acts both per leges and
sub lege.

Pattern coordination
In a liberal perspective, to accept the idea of the rule of law (i.e. the idea of a
particular kind of ‘government by law and not by men’) is certainly not a
renunciation, a capitulation – as in Plato12 – but a great opportunity, a real
achievement.
The certainty of the law – together with the spontaneous emergence of that
abstract order of actions that it favours – permits a kind of ‘pattern coordination’
among a series of individual actions. I use this term (following O’Driscoll and
Rizzo, 1985) to identify a situation in which the plans of various individuals are
coordinated with respect to their typical features, even if not with respect to their
unique features. In other words, individuals’ plans are coordinated as regards
their general repeatable (time-independent) aspects, but not as regards their
specific unrepeatable (time-dependent) ones; the latter are related to history and
to the particular concrete circumstances in which they take place.
Seen from this perspective, the law serves no concrete specific purpose; it
simply provides the means for the realization of the incommensurable separate
purposes of separate individuals (Allan, 2001).
But if we want freedom, then we need law: as the classical liberal tradition
always made clear, if law is properly and adequately interpreted (i.e. as a way to
help guarantee ‘pattern coordination’), then there is no conflict between law and
freedom: on the contrary, there is a certain reciprocity. As Locke (1690, book II,
chap. 6, § 57) wrote: ‘The end of law is not to abolish or restrain, but to preserve
and enlarge freedom . . . Where there is no law, there is no freedom . . .’.

Critiques to the rule of law

In this section I will briefly consider both the radical and moderate critiques that
have been levelled against the ideal of the rule of law, and in doing so also better
specify the ideal itself.
150 Planning Theory 6(2)

Radical critiques: the advent of the notion of central economic

planning as an explicit attempt to go beyond the (rule of) law
Many defenders of centralized economic planning at the beginning of the 20th
century believed that planning meant moving beyond the idea of the rule of
law, and indeed that of law itself. In other words, as humans were now able to
plan socioeconomic activities in a scientifically sound manner, they would no
longer need law, which was destined to disappear: the transition to a planned
society would imply the ‘evaporation’ of law. The idea was that one could substi-
tute abstract and general rules with specific planning instructions; all universal
law was to be transformed into concrete administration, and stable rules
abandoned in favour of discretion and considerations of contingent utility. This
idea was strongly and authoritatively argued, for example, by one of the prin-
cipal Soviet legal philosophers, Evgenii Bronislavovich Pashukanis (1924).
Here is Pashukanis’s disparaging judgement of a certain idea of law:

Only with the complete development of bourgeois relationships does the law acquire
an abstract character. Each man becomes a man in general . . . and every subject
becomes an abstract juridic subject. At the same time the norm, too, takes on the
logically perfect form of an abstract general statute. (Pashukanis, 1924/1951: 169)

Having observed how much time and energy are wasted in juridic disputes and
controversies in capitalistic societies, Pashukanis writes: ‘Only when planned
social production and distribution replaced individualist economy was an end
put to this unproductive expenditure of the powers of the human mind’ (p. 137).
For Pashukanis, thus, controversies are a basic ineliminable element of every-
thing juridic. ‘Conversely, unity of purpose is a premise of technical regulation’
(p. 137). And planning is – for Pashukanis – the most important kind of techni-
cal regulation.
Some kind of traditional law will clearly remain in the first phase of the
centrally planned economy. ‘Side by side with this, however, immediate direction
– that is to say, the administrative-technical [one] – in the form of subordination
to a general economic plan . . . will undoubtedly increase as time goes on’
(p. 178). The latter type of intervention is characterized by an ample use of
‘instructions in the form of programs and plans of production and distribution
. . .: concrete instructions changing constantly as conditions change’ (p. 178). The
gradual imposition of the latter tendency will signify the gradual dying-out of
law itself. While in a capitalist economy – and, partially, in the first phase of a
planned economy – individuals must necessarily have juridic interactions, ‘the
final victory of the planned economy will put them exclusively into an
association with each other based on technical expediency . . .’ (p. 181).
In another article, Pashukanis (1929, § 1) writes: ‘The planning of the
national economy is a combination of conscious and volitional elements, scien-
tific prediction and purposeful arrangements’. In this perspective (§ 2), ‘there
is every basis to say that social technology is the science of the future’. The
central question with regard to our main argument is thus: ‘What changes in
the area of law derive from the fact of regulation of the national economy?’
(§ 4). This is Pashukanis’s answer: ‘The first and most important is the merger
 Moroni Planning, liberty and the rule of law 151

of legislation with administration. We proclaim the unity of legislative and

executive power as the basic principle of our state structure . . .’ (§ 4). In a
planned economy, ‘state regulation is characterized by the preponderance of
the technical and organizational aspect of content over the formal aspects’
(§ 4). Legislative and administrative acts are ‘transformed into operational
tasks’ (§ 4). ‘This perspective of the development of organizational and tech-
nical acts and relations at the expense of formal legal ones, is the perspective
of the withering away of law’ (§ 4).
Subsequently, and after receiving some criticism, Pashukanis recognized that
some kind of law would have to remain even in a mature socialist planning
society. But he continued to harshly criticize the idea of law as intended in the
rule of law tradition, and to affirm that law did not have to be accorded a central
role. He wrote:
The relationship of law to policy . . . is utterly different among us [in a socialist
planned society] from what it is in bourgeois society. In bourgeois-capitalist society,
the legal superstructure should have maximum immobility – maximum stability –
because it represents a firm framework for the movement of the economic forces . . .

On the contrary,
we [in the socialist planned society] require that our legislation possess maximum
elasticity . . . The bourgeois state is orientated in form. All the activity of the
proletarian state is orientated in the attainment of results according to the essence of
the matter.

Accordingly, while ‘bourgeois political scientists are striving to depict policy

itself as law – to dissolve policy in law – law occupies among us, on the contrary,
a subordinate position with reference to policy’ (Pashukanis, 1930/1951: 279).
I believe that it is not difficult to agree that radical positions of this nature
wrongly underestimate the crucial role of law, and exaggerate in an unaccept-
able manner the space given to rationality and social technology. However, it is
important to recall them in order to make explicit the aversion to law that the
idea of planning has brought with it from the start of the 20th century.

Moderate critiques: the affirmation of the idea of the welfare state as an

invitation to weaken and rework the traditional ideal of the rule of law
Criticisms were subsequently directed against the (liberal) ideal of the rule of
law by more moderate voices, as well; in particular, by scholars and supporters
of the welfare state. I will briefly consider five of them.13
A first criticism affirms that the rule of law is, from some perspectives, not
simply a formal, neutral idea, but also a political and ethical ideal. This is
correct, and I believe this is exactly the right way to understand/consider it: as
a substantive, strongly desirable (liberal) ideal.
A second criticism affirms that in welfare states it has become very difficult
to distinguish clearly between law and administration. This is true. But we can
criticize this trend while suggesting something quite different. There is no
reason to accept a trend as an argument against what is desirable.14
152 Planning Theory 6(2)

A third criticism affirms that we cannot do without some kind of ‘delegation’

of power to the lower levels of government. This also is true. It simply depends
on what kind of delegation we have in mind. In other words, there is nothing in
the rule of law that favours centralization over decentralization per se. As
Hayek (1960/1999: 211–12) writes: ‘The delegation of the power of making rules
to local legislative bodies, such as provincial assemblies or municipal councils,
in unobjectionable from every point of view. . . .’. The real trouble with the
widespread use of delegation ‘is not that the power of making general rules is
delegated but that administrative authorities are, in effect, given power to wield
coercion without rule’. What is usually called ‘delegation of lawmaking power’
is then, often, ‘not delegation of the power to make rules . . . but delegation
of the authority to give to any decision the force of law’ (see also Hayek, 1982:
vol. I, 137–8).
A fourth criticism affirms that it is impossible to have completely abstract
and general laws because in some cases, for example, laws must necessarily refer
to particular classes of people (for instance, land-owners). This point needs
clarification. It is obvious that laws sometimes refer to specific ‘classes’ of
people. Thus we have the problem to discover what kind of ‘classification’ is
compatible with the rule of law, and, in particular, with the ideal of equality
before the law. One additional requirement, as suggested by Hayek (1960/1999:
209–10), is known as the rule of double majority. He writes: ‘Those inside any
group singled out [have to] acknowledge the legitimacy of the distinction [intro-
duced] as well as those outside it’. In other words, the law referring to a certain
class or category of people should be acceptable to a majority both inside and
outside the group in question. If, on the contrary, only the insiders of the group
favour the law, we have a patent case of privilege, whereas if only the outsiders
favour the law, we have a case of discrimination. In more general terms, we
could say that the ‘classification’ must be adequately justifiable in light of wider,
consistently enforceable principles (Allan, 2001). In conclusion, the conditions
imposed by the rule of law allow for different degrees of compliances (they
regard properties that can be graded); but this does not mean that we do not
have to pursue them as best we can.
A fifth criticism affirms that every legal system has some kind of ‘discretion’.
This is true too, but the term ‘discretion’ has many possible meanings. And only
one is relevant from the point of view of defenders of the rule of law ideal. Here
it is useful to again quote Hayek (1960/1999: 213):

Under the rule of law the private citizen and his property are not an object of
administration by government . . . It is only when the administration interferes with
the private sphere of the citizen that the problem of discretion becomes relevant . . .
The principle of the rule of law, in effect, means that the administrative authorities
should have no discretionary powers in this respect.

Discretionary administrative powers are only justifiable, then, when they

pertain to the use and destination of the resources belonging to the state and
its agents. Therefore a system based on the rule of law can accept some kinds
of discretion, but not any kind of discretion.15
 Moroni Planning, liberty and the rule of law 153

In short, I do not find criticisms of the rule of law, even in their moderate
form, to be very convincing. On the contrary, I believe that the liberal version
of the rule of law is still a fundamental and defensible ideal. It seems to me that
too often (moderate) critiques to the rule of law assume that this ideal does not
recognize the real complexity of our language and of our concrete systems of
government. But this is not true. From the very start, as I stated earlier, the rule
of law recognized precisely this complexity and tried to be a guiding-ideal for
a complex world, asking us to do the best we could to continuously and pro-
gressively approach this ideal.

The substantive ideal of the rule of law and the

two main traditional land-use planning systems
The rule of law is therefore an ideal that presents itself critically with regard to
planning systems where public decisions and actions are largely unpredictable
because based on contingent circumstances and information, and not uniformly
applied to individuals and groups. In this sense the ideal of the rule of law is
critical both with respect to flexible (land-use) planning by agreement and with
respect to imperative (land-use) planning via zoning. Even if at different levels,
both in fact assume that norms, regulations and so forth are to be dependent
upon actual circumstances, in order to directly control/guide specific actions (for
instance, those of developers) in specific ways. In other words, both assume that
some kind of concrete – not abstract – rules are the crucial ones in land-use
issues. Let’s now briefly consider these one by one.

Rule of law and flexible planning

Flexible planning is unpredictable and unstable in an immediate sense. Each
case is judged ‘on its merits’ (with the planning authorities free to decide what
exactly these ‘merits’ are when they chance upon them, and free to bargain
with the developer in order to extract whatever concession they find desirable
at the time) in a way that cannot be predicted in advance, not even in a general
sense. Moreover, it is quite impossible to guarantee equality of treatment for
all: case-by-case decisions often and inevitably involve treating similar cases in
a different manner.
All this is clearly a departure from the rule of law ideal. As Mark Tewdwr-
Jones (1999: 247) remarks, referring to the traditional British planning system:
‘Spatial planning in Britain has operated as a discretionary, flexible activity, and
the concept of a rule of law is alien to how the system has been implemented
over the last 50 years’. In this case, ‘it is extremely problematical for individuals
. . . to identify how decisions are likely to be made . . .’ (p. 249). See also Barrie
Needham (2006: 22): ‘The rule of law requires that the rules and the conditions
under which they apply be specified in advance’. In this respect then, ‘British
statutory town and country planning does not meet the requirements of the rule
of law, for the decision whether or not an action will be prohibited is not
predictable in advance, being open to the discretion of the state administration’
(p. 148).16
154 Planning Theory 6(2)

Consider, for example, the British practice of extracting a ‘planning gain’

from developers during the administrative procedure of testing and approving
their proposals (Allinson and Askew, 1996). From this perspective, the planning
gain is something like an ad hoc tax that is discretionally imposed in an un-
predictable manner and degree.
In short, as Allison Dunham (1972: 289) writes: ‘The more flexible and adapt-
able the planning scheme the greater may be the restriction on liberty; or to
state it conversely, the more coercive the system may become’.

Rule of law and imperative planning

Only apparently do Continental planning systems satisfy the ideal of the rule
of law. If we look beneath the surface we can see that they too tend to move
away from the rule of law (even if the problem of discretional and unpredictable
decision-taking and law-making arises at a prior stage).
As we have seen, under the rule of law public power restricts itself to setting
the rules of the game, determining the general conditions under which the avail-
able private resources and means may be used, and leaving to individuals the
decisions regarding the ends in the light of which resources and means are to
be used. In contrast, under traditional imperative planning (centred on zoning),
public power seeks to direct the use of resources and means to particular pre-
defined ends. In other words, planning decisions in the latter case can neither
be deduced from formal principles nor settled far in advance. They are heavily
and inevitably dependent on the circumstances of the moment as interpreted
by the planning authority in question.17 It is impossible, then, for any landowner
to predict whether his or her land may be designated for one use or another, or
to what particular restrictions its use will be subjected. As Hayek wrote (1944:
79): if the state were to control the individual’s actions
so as to achieve particular ends, its action would have to be decided on the basis of
the full circumstances of the moment and would therefore be unpredictable. Hence
the familiar fact that the more the state ‘plans’, the more difficult planning becomes
for the individual.
Moreover, imperative planning implicates strongly differentiated and unequal
treatment among individuals. As Anthony Sorensen and Martin Auser (1989:
36), write: ‘. . . planning, or rather zoning, . . . deliberately sets out to be
discriminatory’.18
There is one last aspect to consider: zoning plans can be (totally or partially)
revised, and are frequently revised.19 According to what we have seen until now,
this could be interpreted not as an accident but an intrinsic necessity of im-
perative planning as planning.

Closing remarks and perspectives: land-use

regulation in a (classical) liberal framework

A central role for abstract, general and end-independent rules

In conclusion, even if the planning systems of Continental Europe and of Great
Britain are clearly in accordance with the formal and legalistic ideal of the
 Moroni Planning, liberty and the rule of law 155

constitutional state, they do not completely adhere to the more substantive ideal
of the rule of law. Both in determining the rules and in implementing them, they
in fact allow for too much discretionality and too much disparity of treatment.20
It is for this reason, too, that the phenomenon of corruption (i.e. the use of one’s
official position to favour someone else for personal benefit) has been found in
both types of planning system. In fact, it is where discretionality is highest – and
where there is greater possibility of differentiating between the positions of
single individuals by way of public decisions – that we find increased degrees of
corruption.21
In the end, one central question remains: if we want to take seriously the
(liberal) ideal of the rule of law,22 what kind of role can we assign to the state
in land-use issues?
I believe we could envision a scenario in which public authorities have
two different and clearly distinct tasks: the first one, fundamental and
‘monopolistic’, is to guarantee ‘the rules of the game’ by way of general, abstract
and prevalently negative laws not directly tied to specific knowledge of any
specific circumstances (adopted by a highly qualified majority and with the least
possible amount of discretionality); the second one, complementary and ‘non-
monopolistic’, is to provide a circumscribed range of services and infra-
structures by way of a form of limited planning23 based necessarily on specific
knowledge of specific circumstances (with all the discretionality necessary to
use public resources efficiently in this direction and in line with the political
programme of the simple majority24).
In other words, public authorities should regulate the actions of individuals
(allowing landowners to make use of their land, as suggested by their particu-
lar knowledge of circumstances of time and place, within a framework of
common rules that apply equally to everyone, and as long as such land use does
not create a serious nuisance for others), and plan their own actions (trying to
coordinate the use of public resources at their disposal in a responsible and
efficient manner). As Randall Holcombe (2004: 295) writes, government ‘should
plan more for its own infrastructure development . . . and do less planning about
how private landowners can use their land’.25
From this standpoint, neither (positive) comprehensive zoning nor indi-
vidual case-by-case decisions regarding the private use of the land is necessary.
Instead, we need abstract and general rules for the conduct of individuals (ones
that regard all individuals equally and that are preferably negative), a strong
reaffirmation of the traditional ‘law of nuisance’, an expansion and a more
precise definition of property rights and connected obligations (related to a
facilitation of their transfer),26 a reduction of the costs of enforcing private
propriety rights in certain cases,27 an ample use of devices as tradable develop-
ment rights,28 a recognition of the broadest possible space for forms of private
zoning such as those guaranteed by private covenants and deed restrictions,29
and lastly, a circumscribed selective coordinate use of public money to provide
services and infrastructures without presuming any kind of legal monopoly in
this field.
The general idea is to regulate the use of land mainly by way of locationally
generic (mainly negative) rules rather than locationally specific ones,30 without
156 Planning Theory 6(2)

any kind of bargaining between private and public parties, and leaving the
broadest possible space to voluntary initiatives and activities.
From this standpoint one could imagine the broad space that will be taken
by those voluntary forms of land-use organization and service provision that,
according to Fred Foldvary (1994), can be defined as ‘proprietary communities’
and ‘community associations’.31

Towards nomocracy
All of this clearly has nothing to do with the (illiberal) idea of laissez-faire,32
but simply with a different notion of state regulation and action (Moroni, 2005).
A notion, presupposing the ideal of a nomocratic urban system (a ‘law-
governed’ urban system), that is partly different both from the Continental
planning tradition and from the British planning tradition, both of which
presuppose the ideal of a teleocratic urban system (a ‘purpose-governed’ urban
system).33 In other words, the alternative is not between laissez-faire and
planning, but between different ways of intervening in society.34
The viewpoint that I am making a case for also has nothing to do with the
idea of the minimal state; in fact, what makes a state ‘liberal’ is not the volume
or quantity of its activities, but the kind or nature of its activities (Moroni,
2005);35 and this is true also in land-use issues. To take some traditional
categories, we could say that from this viewpoint everything that can be done
in terms of private law ought to be done so. In land-use issues there is – I believe
– a strong case for greater use of private law to replace certain traditional uses
of public law. However, this does not mean any a priori preclusion with respect
to public law, which can be used any time the tools of private law prove in-
adequate (for instance, in case of pervasive externalities: see Needham, 2006).
The point is rather that the type of public law that is acceptable is only a certain
type; for example, we can accept ‘public-law rules’ regarding the use of land, or
buildings, which are abstract, general and mainly negative, but not land-use
plans introducing, for example, detailed positive zoning prescriptions.36
This liberal perspective is also quite different from the conservative thinking
of the Thatcherite kind. Conservative thinking in the strict sense of the term has
in fact only limited overlap with the classical liberal tradition, and many strong
and irreconcilable differences from it (Dahrendorf, 1983): consider, for example,
the conservative’s emphasis on the organic unity of society, on patriotism,
tradition, authority, hierarchy, a certain idea of family, and so on. As Britain’s
Thatcher years clearly demonstrated, in fact, aside from a kind of generic
rhetoric, principles such as the rule of law did not play a central role at all.37
In conclusion, the more complex an urban system becomes, the greater is the
need for abstract, general and end-independent rules to favour a sort of
beneficial, spontaneous order – self-coordinating and polycentric – of indi-
vidual actions.38 In this case (adequately constrained) competition is the best
form of (unintentional) mutual aid.
Before closing, I would like to underline how in some European countries
there have been some recent attempts to move in a direction not so different
from the one described here. However, it seems to me that this often happens
 Moroni Planning, liberty and the rule of law 157

in the absence of a coherent supporting framework, and sometimes in the

presence of juxtaposing conflicting elements. I believe therefore that returning
to certain fundamental questions – such as the link between the rule of law and
liberty upon which I have insisted throughout this article – is necessary in order
to develop clearer positions and evaluate and design better reforms (whether
such reforms are strictly consistent with the ideal of the rule of law, as is my
hope, or instead imply a partial deviation from it).

Acknowledgement
The author would like to thank Sara Benjamin for editorial assistance.

Notes
1. See, for instance, Hallett (1979).
2. This clearly does not exclude that other (important) distinctions could be drawn
between the British planning system and Continental ones. See Newman and
Thornley (1996), and Philip Booth’s article in this issue.
3. See in particular Aristotle (1981), The Politics.
4. Here I use the term ‘liberal/liberalism’ in the classical European sense (Conway,
1995). This idea of liberalism clearly has nothing to do with the ‘economic
neoliberalism’ that many authors critique today under the (what I consider) quite
erroneous label ‘liberalism’ (see Amin, 2004).
5. The following four passages are relevant in this respect (Locke, 1690):
. . . Whoever has the legislative or supreme power. . . is bound to govern by established
standing laws, promulgated and known to the people, and not by extemporary decrees.
(vol. II, chapt. 9, § 131)
. . . The ruling power ought to govern by declared and received laws, and not by extemporary
dictates and undetermined resolutions . . . For all the power the government has, . . . as it
ought not to be arbitrary . . ., so it ought to be exercised by established and promulgated
laws: that both the people may know their duty, and be safe and secure within the limits of
the law, and the rulers too kept within their due bounds . . . (vol. II, chapt. 11, § 137)
. . . There, and there only, is political society [where] . . . all private judgement of every
particular member being excluded, [and] the community comes to be umpire by settled
standing rules, indifferent, and the same to all parties . . . (vol. II, chapt. 7, § 87)
[Those who have the legislative power] . . . are to govern by promulgated established laws,
not to be varied in particular cases, but to have one rule for rich and poor, for the favourite
at court, and the countryman at plough. (vol. II, chapt. 11, § 142)
6. If the activity of our government were the continuous or sporadic interruption of the life
and arrangements of our society with . . . corrective measures, we should consider
ourselves no longer free. For not only would government of this kind require extraordinary
power. . ., but also . . . the society would be without that known and settled protective
structure which is so important a condition of freedom. (Oakeshott, 1991: 390)
7. The idea of the market as a dynamic spontaneous order – an idea that is significantly
different from the neo-classical general equilibrium model – was propounded by
the Austrian and Neo-Austrian school of economics: see Hayek (1948, 1967, 1982),
O’Driscoll and Rizzo (1985), Kirzner (1992), Thomsen (1992) and Boettke and
Prychitko (1994). There are few discussions around this little-known (and not
widely appreciated) notion of the market in the planning literature: see Pennington
(2002), Webster and Lai (2003). See also Moroni (2005).
158 Planning Theory 6(2)

8. Publicity requires that laws be known and adequately publicized; non-retroactivity

requires that laws be prospective and never retrospective.
9. As regards this requirement, there is a well-known debate regarding the desirability
of having – or not having – administrative courts (as distinct from ordinary courts)
to oversee administrative acts. In the rule of law perspective, we can accept the idea
of having separate administrative courts or tribunals (principally for pragmatic
reasons: the kinds of problems raised by disputes over administrative decisions
require specific knowledge of certain branches of law and of certain facts),
provided, however, that they are truly independent judicial bodies (and not part of
the administrative machinery) and that no particular supremacy is attributed to the
administrative authorities when their actions are under judicial review. This view
‘does not support a greater separation between the courts adjudging private and
those adjudging administrative disputes that often exists between courts dealing
with matters of private law, commercial law, and criminal law, respectively.
Administrative courts separated from ordinary courts only in this sense could still
be as independent of government as the latter and be concerned only with the
administration of the law . . .’ (Hayek, 1960/1999: 200).
10. ‘Uncritical identification of “law” with any and every assertion of governmental
authority . . ., would inevitably make the citizen and his property themselves objects
of administration’ (Allan, 2001: 16, emphases added).
11. ‘Majority rule deserves no special . . . reverence except in so far as it is truly
consistent with the values of equal human dignity and individual autonomy: politics,
in its ordinary institutional forms, should be the servant of justice rather than its
master’ (Allan, 2001: 25).
12. See Plato, Statesman (1925: 294a–295b).
13. See, for example, Friedmann (1949, 1951); see also Robson (1947).
14. For a detailed discussion of criticisms levelled against the idea of the separation of
powers, and for an interesting restatement of this idea, see Vile (1967).
15. The problem of discretionality takes on a different connotation when referred to
the work of judges. However, I cannot examine this complex problem here; for a
discussion of this issue in a framework that retains the centrality of the ideal of the
rule of law, see Dworkin (1977, 1985), Burton (1994) and Solum (1994).
16. Here I should point out a further problem. As Cullingworth (1993: 209–10) wrote,
‘given this public policy character of British land use planning, the courts have little
role to play . . . In place of the courts, stands the central government (technically the
secretary of state). An applicant who is refused planning permission (or is granted
planning permission with onerous conditions) can appeal to the secretary of state’.
In this perspective, ‘an appeal is properly seen as an administrative rather than a
truly legal process’ (Allinson, 1996: 88). See also Corkindale (2004). In this respect,
a very interesting legal case brought before the European Court of Human Rights
is Bryan v. United Kingdom (1996).
17. Because the planning authority has to decide – in this case – among different needs
and desires, it must moreover balance concrete ends.
18. We could also add that zoning prevents innovation in land use and organization
(Siegan, 1977, 2005; Sommer, 1982; Corkindale, 2004).
19. ‘Sure enough, sooner or later, all zoning systems come up against a mismatch
between the predicted future and the realities of the moment, and all zoning
systems develop mechanisms for circumventing the rules . . .’ (Booth, 1999: 32).
20. The fact that traditional land-use planning systems do not completely adhere to the
rule of law ideal is a direct problem because this tends to restrict freedom in an
 Moroni Planning, liberty and the rule of law 159

undesirable way. But it is also an indirect problem because this tends to impede the
efficient activation and use of the dispersed knowledge. In this article I have
focused my attention on the first problem in particular, but the second one is
equally important (see Pasour, 1991; Pennington, 2002; Ikeda, 2004; Moroni, 2007).
21. ‘The illegitimate use of a state by economic interests for their own ends is based
upon a preexisting illegitimate power of the state to enrich some persons at the
expense of others’ (Nozick, 1974/1992: 272).
22. It could of course also be said that we are under no obligation to accept this ideal. A
divergence of opinions on this point is clearly possible, provided that we understand
that if we abandon the ideal of the rule of law, we can no longer criticize, for
example, the promulgation of ad personam laws by rulers concerned solely with
their own personal affairs.
23. It is interesting to recall that two champions of the liberal tradition such as Hume
(1739–40, book III, part II) and Smith (1776, book V, part III), believed that among
the tasks of public authorities was that of providing public infrastructure.
24. ‘Where government is directing and allocating resources put at its disposal, the . . .
administrator properly enjoys . . . discretion in deciding what tasks to undertake
and the means to be used in undertaking them. Here policy, meaning the aims of
the government of the day, is important. Decisions as to upkeep, design and location
of roads and public building are necessarily of this kind and may be as flexible as
the public administrator wants’ (Dunham, 1972: 291).
25. See also Holcombe and Staley (2001).
26. The idea is that private voluntary bargaining and exchange is more likely to be
successful when property rights are clear. As Pearce (1981: 54) writes, ‘any
extension to the set of rights attached to a land parcel . . . would become capable of
exchange and trade by contract. Markets would readily place values and prices on
real property which would fully take into account what had previously been
externalities’. In this perspective, the aim of a clearer definition of property rights is
not that of reaching a Pareto optimum or minimizing social costs, but of resolving
interpersonal conflict regarding the use of resources (i.e. favouring mutual plan
formulation). In other words, the difficulty in handling externalities due to unclear
and poorly specified property rights is not a case of market failure but of
institutional failure (Cordato, 2004). The issue here is not one of ‘allocative
efficiency’ but one of ‘catallactic efficiency’ (Cordato, 1980, 1994).
27. For example, ‘by making “small” claims easier and less costly through special
“Nuisance” Courts, by reducing the costs of legal advocacy, by the encouragement
of insurance schemes for “accidental” externalities’ (Pearce, 1981: 53).
28. On this point, see Corkindale (1998, 2004). As Corkindale (2004: 88) writes, under a
system of tradable development right,
some areas can be specified as ‘conservation zones’ and others as ‘development zones’
or ‘agricultural zones’. Land development rights are allocated (in equal quantities) to
landowners in all zones, but, as development rights can be exercised only in the
development zones, landowners holding development rights have either to exercise
those rights in development zones or to sell them to others to do so.
29. As is well known, a covenant is a private obligation – voluntarily accepted by the
buyer of a piece of land – to use the land in a particular way (according to a list of
rules). The contract remains valid for the subsequent owners of the land, provided
that they are aware of the contract’s existence: as the saying goes, ‘covenants run
with the land’ (a principle starting with the famous English case Tulk v. Moxhay,
1848). On this issue, see Siegan (1977) and Davies (2002).
160 Planning Theory 6(2)

30. As Needham (2006: 22) writes, locationally generic rules

apply throughout the whole jurisdiction of the rule maker. They have the form: if you build
a certain type of dwelling, then this has to meet certain minimal technical norms, it has to
be a certain minimum distance from its neighbour, etc.

In contrast, locationally specific rules

apply only to locations explicitly specified in a separate ruling, such as a land-use plan.
They have the form: . . . if you want to build in that location it is not only the generic rules
that apply but also rules specified in a land-use plan adopted for that location (such us that
permission will not be given for building a house if the location has been designated for
offices).

I would like to emphasize that the idea of some conservative governments of the
1980s to designate ‘enterprise zones’ is a kind of locationally specific measure, with
all its attendant disadvantages: as Sommer (1982: 516) writes, commenting on
Reagan’s proposal for enterprise zones: ‘. . . Enterprise zones appear to be simply
another form of place-specific government intervention. They dislocate individual
choices and misdirect the location pattern of activities to areas which otherwise
could not sustain them’. Sommer continues: ‘Unfortunately, the enterprise-zone
initiative is sure to be viewed as a major . . . “disinterventionist” action . . .’ (p. 517).
31. For arguments in favour of the proprietary community model, see MacCallum
(1970); for arguments in favour of the community association model, see Nelson
(2002). As is well known, some kinds of community associations, in particular the
so-called ‘homeowners associations’, are criticized for creating geographical
segregation (see for example, Caldeira, 2005). This is certainly a risk, but I believe
firstly that it is not a necessary consequence of favouring community association
and secondly that it is possible to minimize it through some kind of public measures
and (abstract and general) rules.
32. For criticisms of the illogical idea of laissez-faire (or non-intervention) from a liberal
standpoint, see Lippmann (1936), Hayek (1944) and Leoni (1961).
33. Using the terminology suggested by Hayek (1960, 1982).
34. The traditional idea (see Abercrombie, 1943) that we can have only one of two
situations – either planning or laissez-faire – is in fact very misleading, and has
created considerable confusion within the debate on land-use regulation.
35. As a defender of the rule of law writes: ‘The real issue in restoring the rule of law is
not big government versus small government. There is no question that government
must be activist’ (Hayes, 2001: 178).
36. A city does not need ‘any future complete picture in the form of a long-term plan
[neither rigid nor flexible] that it should accomplish’; on the contrary, ‘the city is
always under construction but it is never finished or completed, as building
responds primarily to current needs and opportunities’ (Alfasi and Portugali,
2004: 32–3).
37. Thornley (1991: 215) has shown how the Thatcher government revealed a strong
tension
between the desire for a ‘rule of law’ which provides a generalised framework which stands
above government, and, on the other hand, the tendency of government since 1979 to
centralise power. The first principle encompasses an attack on . . . discretion while the
second tendency gives considerable discretion to ministers.

In short, the Thatcher government seemed ‘reluctant to give complete responsibility

to the processes of the market or the legal system’. See also Parkinson (1989).
 Moroni Planning, liberty and the rule of law 161

38. See, in general, Polanyi (1951), and, with specific reference to cities, Portugali
(1999). Compare this with the diametrically opposed idea of a defender of planning,
such as Mannheim (1965).

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Stefano Moroni teaches planning in the Department of Architecture and Planning

at the Milan Polytechnic, and writes on planning theory and ethics.

Address: Dipartimento di Architettura e Pianificazione, Politecnico di Milano, via

Bonardi 3, Milan, Italy. [email: smoroni@aznet.it]