Waste, marginal property practices and the circular economy

DOIhttps://doi.org/10.1108/JPPEL-02-2020-0012
Pages203-218
Publication Date31 July 2020
AuthorSean Thomas
SubjectProperty management & built environment,Building & construction,Building & construction law,Real estate & property,Property law
Waste, marginal property
practices and the
circular economy
Sean Thomas
The York Law School, University of York, York, North Yorkshire, UK
Abstract
Purpose This paper aims to examine the effect of circular economys ending of waste on marginal
propertypractices.
Design/methodology/approach This paper utilises doctrinal and theoretical legal analysis, along
with theoreticalperspectives and qualitative empiricalevidence drawn from non-legal academicdisciplines.
Findings The current legalistic conception of waste depends on control and value. The indeterminate
status of wasteas goods at the margins of consumptionattracts attention from legalregimes. This process is
evidencedby a commercialised treatmentof goods at the margins of consumption,limiting the scope of radical
marginalproperty practices suchas freeganism (taking goodsabandoned by others, to usesuch goods).
Social implications The circular economyaims to end waste. Restriction, and ultimatelyelimination, of
marginal property practices is necessary for circular economy. Freegans will be limited to acting in a
challengerole, identifying breaches of commercial commodication processes. Control over the use
(including disposal) of goods reduces the spaces available for marginal property practices, which in turn
raises problematicnormative implications for normalconsumptionpractices involving waste.
Originality/value This is the rst examination of the impact of circular economyon freeganism. It is
also the rst sustained application of marginal property theory (van der Walt, 2009) in a legal analysis of
circulareconomy and waste.
Keywords Property, Waste, Circular economy, Marginality, Freegan
Paper type Research paper
1. Introduction
This article examines the organisingand patterning effect of laws treatment of individuals
who deal with waste, against the background of circular economy (CE) thought whichrests
on the necessity of commercialised control of the use and disposal of goods to end waste.
The generation, treatmentand disposal of waste are live topics in general, and with the most
recent waste strategy for Englandnotably including specic engagement with CE (DEFRA,
2018a, 2018b), it becomes essential to analyse criticallythe relationship between waste and
CE. There is growing legal literature examining waste and CE (Dalhammar, 2015;de
Römph, 2016;Backes, 2017;Thomas,2019;Burger, 2019;Mak and Lujinovic, 2019), as well
as particular aspects such as plastics waste and CE (de Römph and Van Calster, 2018;
LEAD, 2019). However, despite some exceptions (Steenmans et al., 2017;Maitre-Ekern and
Dalhammar, 2019), it remains under-theorised. This article thus addresses our
This article draws on a presentation the SLS Conference, Rethinking Property Approaches in
Resources for the CE, Coventry University, 21 June 2019. Thanks to the organisers and participants
at that conference for their useful advice.
Marginal
property
practices
203
Received28 February 2020
Revised5 June 2020
Accepted6 June 2020
Journalof Property, Planning and
EnvironmentalLaw
Vol.12 No. 3, 2020
pp. 203-218
© Emerald Publishing Limited
2514-9407
DOI 10.1108/JPPEL-02-2020-0012
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/2514-9407.htm
understanding of the social implications of altering legal frameworks and socio-economic
institutions thatdeal with waste to take into account moves to a CE.
This article avoids focusing on specic types of waste. The enveloping holism of CE
justies a wider analysis of waste, which in turn allows a broader critical perspective.
Because society itself may just be simply organized patterns of collective activity for
managing waste(OBrien, 2007, p. 1), this broad approach to waste is necessary.
Furthermore, recognising that waste reveals imbricate relationships between individuals,
organisations and institutions(Davies, 2008) enables novel theorising about waste practices
(Foote and Mazzolini, 2012). Such theorisingcan focus on individuals, operating at the edges
of consumption. Drawing on van der Walts path-breaking Property in the Margins, this
article accepts the possibility of opening up theoretical space where justice-inspired
changes to (or transformationof) the extant property regime can be imagined and discussed
more or less fruitfully from an unusual perspective, namely, the effect that enforcement of
strong property rights has on marginalised property holders and users [...] [Therefore] the
perspective from the marginsis valuable(van der Walt, 2009, pp. ix-x).
However, this article goes further, by considering goods (as opposed to van der Walts
focus on land). This article uses the marginal property practice of freeganism, which
involves the taking of waste goods for (re-)use, to examine closely the control opportunities
for law. Marginal property practices involving goods attract attention from legal regimes
(Gutberlet, 2008), which utilisethe uncertain status of marginal consumption acts as a form
of social control. CEs necessaryrestriction, and ultimately elimination, of marginal property
practices ts neatly with this broader social control. This is to some extent merely a
replication of the fact that governancesocieties have long created rules about the regulation
of waste within communities(Davies, 2008, p.9). However, CE has the potential to further
reduce the spaces available for marginal property practices, which in turn raises
problematic normativeimplications for normalconsumption practicesinvolving waste.
2. Waste in the circular economy
CE, a relatively novel ideology gaining considerable traction within academic and policy
circles, focuses on minimum input and output costs. This involves, inter alia, better use of
raw materials, better product designand more effective reuse and recycling of end-products.
The need for economyin exposition militates against a comprehensive explanationof CE [1].
Instead, the implicationsfor marginal property practices (and by extension, normal property
practices) concerningwaste that can be inferred from the approach to waste in CE ideas will
be identied.
The Ellen MacArthur Foundation, a major force behind modern developments in this
area, states that CE provides multiple value creation mechanisms that are decoupled from
the consumption of nite resourcesand rests on three principles of preservation,
optimisation, and system efciency [2]. Theseprinciples have fundamental characteristics
[that] describe a pure CE, the rst of which is Design out waste[3].More recently, the UK
Waste Strategy 2018 states the lifecycleapproach complements the CE model. It requires
us to focus not just on managing waste responsibly, but on preventing its creation in the
rst place. It means takinginto account how decisions taken during the design stage at the
start of the lifecycle affect howa product is used and then disposed of by the consumer. At
every stage of a products lifecycle there is scope for people to do all they can to maximise
resource value and minimisewaste (DEFRA,2018a, 2018b,p.26).
Throughout this article, the key characteristic for analysis is that of thinking in
systems, as that concerns how individual elements inuence the whole and vice versa, in
relation to their environmental and social contexts[4]. This social contextualisation must
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