From Boundary Drawing to Transitions: the Creation of Normativity under the EU Directive on Integrated Pollution Prevention and Control

• Author: Bettina Lange
• DOI: http://doi.org/10.1111/1468-0386.00152
• Published date: 01 June 2002
• Date: 01 June 2002

From Boundary Drawing to Transitions:

the Creation of Normativity under the EU

Directive on Integrated Pollution

Prevention and Control

Bettina Lange

Abstract: This article aims to make a contribution to debates about how to conceptualise

normativity. It argues that normativity can not be just understood through de®ning it and

in particular through identifying conceptual boundaries around the normative and the

non-normative. Instead the article suggests that it is important to explore how trans itions

between the non-normative and the normative occur in practice. This argument is

developed through a critical examination of literature on legal pluralism and an analysis

of qualitative empirical data on the drafting of technical guidance documents under the

European Union Directive on Integrated Pollution Prevention and Control (96/61/EC).

1

I Introduction

Legal pluralism has made an important contribution to debates about normativity. It

has opened up analysis of normativity by pointing to the limits of a uni®ed, centralised

concept of state law and by emphasising the various facets of law, such as `folk law'

and other non-state normative orders which can interact with formal state law.

2

Legal

pluralism's appeal can also be traced to its ability to explain developments in

normativity as linked to social change. For example, a literature has developed

which perceives legal pluralism as one of the consequences of globalisation.

3

Inter-

national private law orders, such as a `lex mercatoria' as well as technical and

management standards set, for instance, by the International Organization for

Standardization decentre national state law.

4

Environmental law and in particular the IPPC Directive lend themselves well to an

examination of questions about the nature of normativity. Statutory pollution control

European Law Journal, Vol. 8, No. 2, June 2002, pp. 246±268.

#Blackwell Publishers Ltd. 2002, 108 Cowley Road, Oxford OX4 1JK, UK

and 350 Main Street, Malden, MA 02148, USA

1

[1996] OJ L 257/26. The empirical research was funded by Aberystwyth University research fund to

whom I am grateful. The views expressed in this article are the author's and should not be taken to

represent the opinion of the EIPPC Bureau. I like to thank the sta of the EIPPC Bureau for their

participation in the research.

2

M. Galanter, `Justice in Many Rooms: Courts, Private Ordering and Indigenous Law' (1981) 19 Journal

of Legal Pluralism, pp. 1±47.

3

See for example W. Twining, Globalisation and Legal Theory (Butterworths, 2000); F. Snyder,

`Governing Economic Globalisation: Global Legal Pluralism and European Law', (1999), 5 European

Law Journal 4, pp. 334±374; G. Teubner (ed.), Global Law Without a State (Dartmouth, 1997).

4

Such as ISO 14001: 1996 on environmental management, see: www.iso.ch/iso/en/ISOonline.frontpage.

standards sometimes draw on various sources of normativity for the de®nition of a

legal standard, by referring to non-state normative forms of ordering, such as

economic criteria.

5

II Approaches to Understanding Normativity in the Literature on Legal

Pluralism

De®nitions have been a key analytical tool for legal pluralists for understanding

normativity. De®ning normativity has involved drawing boundaries around state law,

non-state normative orders, such as folk law, and a non-normative sphere, the social.

Boundary drawing is expressed in three themes in legal pluralist debates. These are,

®rst, the search for a frame in which normative orders occur. Second, a discussion of

relationships between state law, folk law and the social which retains dierent

normative orders and the social sphere as separate and distinct. Third, a focus on a

discussion of dierences and similiarities between folk and state law.

A The Search for a Frame in which Normative Orders Occur

Legal pluralists have devoted considerable attention to the question what the frame is

in which normative orders occur. Most suggestions hinge on the idea that normative

orders occur in a social ®eld or group through which they can be explained.

6

For some

authors a normative order is generated by a particular social group within the social

®eld.

7

Hence various dierent normative ordersÐcalled by legal pluralists legal order

or systemÐcan occur within one social ®eld.

8

Other legal pluralists consider subgroups

within society, such as the family, lineage systems or political confederations as the

frame for normative orders.

9

The analytical device of a frame is further developed in Moore's work through the

concept of the semi-autonomous social ®eld (SAF):

`The semi-autonomous social ®eld has rule-making capacities, and the means to induce or coerce

compliance, but it is simultaneously set in a larger social matrix which can, and does, aect and invade

it, sometimes at the invitation of persons inside it, sometimes at its own instance'.

10

In the SAF there are no ®rm, rigid frames. Instead frames can consist of `looser

transactional complexes' which have `rule-making and rule-enforcing capacities'.

11

Moore's concept of the SAF allows to identify more frames and interrelationships

among them. A particular social group, such as a corporate group can be a SAF but

also a number of corporate groups dealing with each other can be a semi-autonomous

June 2002 The EU Directive on Integrated Pollution Prevention and Control

#Blackwell Publishers Ltd. 2002 247

5

Such as the BPM (best practicable means) concept under the Alkali etc. Works Regulation Act 1906 and

the BATNEEC (best available techniques not entailing excessive costs) concept under Section 7(2)

Environmental Protection Act 1990 in the UK.

6

S. F. Moore, Law as Process, An Anthropological Approach (Routledge & Kegan Paul, 1978). p. 129.

7

J. Griths, `What is Legal Pluralism?' (1986) 24 Journal of Legal Pluralism 1, 8; S. E. Merry, `Legal

Pluralism', 22 Law and Society Review 5 (1988) p. 870.

8

G. Teubner, `The Two Faces of Janus: Rethinking Legal Pluralism', (1992) 13 Cardozo Law Review,

p. 1448.

9

M. B. Hooker, Legal Pluralism, An Introduction to Colonial and Neo-Colonial Laws (Clarendon Press,

1975).

10

S. F. Moore, op. cit. note 6 supra, p. 55.

11

S. F. Moore, op. cit. note 6 supra, p. 81.