The Emergence of New Types of Norms

Abstract

An important part of the legal theoretical literature deals with the nature of rules, in particular with mandatory rules of the prohibitive type. The exemplar of such rules is the classical `no vehicle in the park' rule, which figures in virtually every serious work on legal interpretation. In this article it is pointed out that next to these classical mandatory rule, new kinds of norms are emerging and are produced in massive quantities by both the European and the national legislators of European countries. These new types of norms haven't been analysed so far but have a quite dramatic effect on both political debate and legal decision-making. There are two types of such new norms: the first of these requires norm-addressees to achieve abstract goals, the second to achieve specific outcomes. Both types of norms no longer seek to prescribe specific actions (as means to a further end) but prescribe the end itself: a certain state of affairs that should be brought about. In legislative circles it is hoped that such rules will help to a) reduce overregulation and b) to do justice to the ability of social groups to devise their own means to the prescribed ends. Hopwever, it is argued that, contrary to these expectations, a. goal-prescribing rules tend to proliferate and to multiply; and that b. the amount of deliberation and debate that is permitted in such a goal-prescribing regime is rather modest.

Keywords: Goal-regulation, legislation, aspirational norms, public debate, overregulation