5 Colum. J. Eur. L. 39 (1998)
Damian Chalmers. Professor of Law at The London School of Economics.
As a phenomenon, European Community (EC) environmental law appears to be a bundle of paradoxes. While the need for common legislation is far from clear, there is consensus among both policy-makers and the wider public that there should be common norms. There is extensive legislation in the field of EC environmental law but it is poorly applied, and the state of the European environment continues to degrade at a rate which exceeds even the Community’s own expectations. Despite these paradoxes, EC environmental law continues to be utilized and its status upgraded. The contradictions only appear if we apply a formalist, essentialist methodology and we conceive of EC environmental law as simply being, as a self-sustaining, isolated artifice. Moving away from this essentialist methodology allows an analysis of EC environmental law through at least three further dimensions.
The first of these analyses looks at the practical relationship between EC law and its surrounding environment and how EC law is made, disposed and used in that environment. The actors who use it understand that they do not operate within a vacuum, however, and such analysis also considers the specific time- space and socio-economic contexts and the reflexive and recursive processes which inform and structure their actions.
Such analysis treats EC environmental law as a passive object, as something which actors act upon. Any analysis, such as much of the rational-choice analysis found in the political sciences, which focuses exclusively upon this dimension can do no more than provide an ad hoc assembly of the actors who use EC environmental law. It cannot explain how EC environmental law determines relations between actors who would otherwise be temporally and spatially disconnected. Therefore, it is important to realize a further configurative dimension which considers how EC environmental law acts upon the actors who utilize it. In order to analyze this dimension it is necessary to, map out the terrain of EC environmental law in a manner which does not merely reiterate the essensialist methodology critiqued earlier. Social theorists have tried to capture this terrain in a variety of ways. Bourdieu, for example, talks of the “field of forces” in which the terrain or the field of EC environmental law would be anywhere where there was an interest or stake in EC environmental law. Systems theory and other communications based theories would consider the system or sub-system of EC environmental law to comprise all communication in EC environmental law. Under such analysis, the terrain of EC environmental law would extend to wherever EC environmental law is communicated. Giddens structuration theory, by contrast, through the concept of structure, analyzes all the norms, procedures and resources involved in the reproduction or enactments of EC environmental law.
Some analysts would point to a third dimension found most commonly in post-structuralist thought. This dimension considers what EC environmental law represents or signifies. It would consider the pathologies and techniques contained in EC environmental law and what these signify in terms of power, meaning and legitimacy.
The aim of this essay is to consider how these three dimensions can further inform our understanding of EC environmental law. A series of narratives are developed which examine the interaction and the symbiotic relationship between the content and scope of EC environmental law, the actors who use it, the contexts within which they use it, and the processes which guide and inform them. There is a continuous interweaving of these narraties as the actions of one generation provoke both recursive and reflexive responses in subsequent actors. Recursive pressures lead to a continuation of existing narratives, and reflexive pressures lead to the creation of new narratives. Less emphasis will be placed on the third, representational dimension discussed above partly because of its complex nature and partly because of the difficulties in separating and isolating representational questions. This is not to say that this dimension should be ignored. A total failure to address it would result in an analysis lacking resonance. Indeed, it is precisely the questions of power, meaning and legitimacy contained in law which result in actors competing so keenly for the opportunity to imprint their particular vision on the legal system. The consequent arbitrage this provokes results in the field of EC environmental law never being static, with all those involved in the formulation and application of the law-be they EC institutions, national administrations, judges (national or European), practitioners, non-governmental organizations or industry-competing for the right to determine the law.