Compliance Construction in the Context of Environmental Regulation
| Author | Bettina Lange |
| DOI | 10.1177/a010430 |
| Published date | 01 December 1999 |
| Date | 01 December 1999 |
| Subject Matter | Articles |
COMPLIANCE CONSTRUCTION
IN THE CONTEXT OF
ENVIRONMENTAL REGULATION
BETTINA LANGE
Aberystwyth University, UK
ABSTRACT
This article explores compliance in the context of environmental regulation. It rejects
a formal concept of compliance according to which statements about compliance can
be made by assessing a self-contained notion of social practices of the regulated in the
light of formal legal rules. Linked to this type of analysis is the notion of a ‘gap’
between formal legal requirements and what the regulated do in practice. In examin-
ing this perspective critically the article argues that the concepts of rules and social
practices have to be seen not as self-contained categories but as closely linked. These
close links are created both on a level of behaviour, through what the regulators and
the regulated actually do in practice, and on a level of meaning of rules. Thus the
notion of a ‘gap’ needs to be complemented through a concept of integration between
rules and social practices. The article develops this argument by drawing first on
literature on enforcement, discretion and creative compliance; and second by relying
on qualitative empirical data on the implementation of a waste management site
licence by staff at a waste treatment plant and the enforcement activities of waste
control officers.
INTRODUCTION
THIS ARTICLE EXPLORES the concept of compliance in the context
of waste management regulation. What can be understood as compli-
ance is to be the outcome of the discussion and hence there is no a priori
definition of this concept. The article aims to provide some theoretical insights
into the concept of compliance by discussing its constituent elements, rules and
social practices, as well as their interrelationship. In particular I critically
examine the idea that compliance assessments can be made by comparing what
the regulated do in practice with normative standards which are imposed upon
SOCIAL &LEGAL STUDIES 0964 6639 (199912) 8:4 Copyright © 1999
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 8(4), 549–567; 010430
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them. I use the term ‘rules’ in a broad sense. It encompasses formal law as con-
tained in statutes and statutory instruments as well as informal rules which
develop out of business practices and organizational rules among regulators
and regulated. The term ‘social practices’ refers to the behaviour of actors in
the field. It does not just comprise behaviour that is consciously directed at
following or disregarding rules but also includes conduct which primarily does
not relate to legal rules. It is broader than the term ‘law in action’. The article
is divided into two parts. In the first part I discuss how compliance has been
conceptualized in the literature and in the second part I report and analyse data
from a case study on waste management regulation.
COMPLIANCE AS SOCIALLY CONSTRUCTED
The topic of compliance has been discussed from various perspectives in the
literature on regulation. One such perspective considers compliance as
socially constructed. This means that the very meaning of the concepts of
compliance and non-compliance is considered to be problematic. The process
of how definitions of compliance and non-compliance are achieved is made
a topic of investigation. Labelling theory is one example for this type of
research (Becker, 1963). Here determinations of deviance and conformity are
not abstractly pre-given but are considered as made and remade during the
social process of the application of these labels, in which factors such as class
and stigma play a role. To consider compliance as socially constructed allows
us to ask fundamental and conceptual questions, such as can compliance and
non-compliance be meaningfully differentiated? Are compliance and non-
compliance too reductionist as categories to describe a broad spectrum of
behaviour in relation to law? Can the application of the formal labels of com-
pliance and non-compliance really capture whether the regulated observe the
‘spirit of the law’ (McBarnet and Whelan, 1991: 873)? What are the con-
stituent elements of compliance? Can compliance be understood as a ‘link
concept’ which addresses the relationship between rules and social practices?
CREATIVE COMPLIANCE
Recent examples of research from a social construction perspective have
focused on ‘creative compliance’ by powerful economic elites in a range of
contexts, including tax avoidance (McBarnet, 1992), the regulation of risk in
corporate finance (McBarnet and Whelan, 1997) as well as law and account-
ing in the Single European Market (McBarnet and Whelan, 1994). ‘Creative
compliance’ involves avoiding law’s requirements without actually contra-
vening them. For example, in the context of tax avoidance legal devices, the
double charging of interest payable on loans and manufactured losses can be
used for strategic tax planning (McBarnet, 1992: 253).
A background theme of this research is the relationship between law and
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