Forging a Socio-Legal Approach to Environmental Harms

Global Perspectives

Tiffany Bergin, Emanuela Orlando

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317385998
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Environmental harms exert a significant toll and pose substantial economic costs on societies around the world. Although such harms have been studied from both legal and social science perspectives, these disciplinary-specific approaches are not, on their own, fully able to address the complexity of these environmental challenges. Many legal approaches, for example, are limited by their inattention to the motivations behind environmental offences, whereas many social science approaches are hindered by an insufficient grounding in current legislative frameworks.

This edited collection constitutes a pioneering attempt to overcome these limitations by uniting legal and social science perspectives. Together, the book's contributors forge an innovative socio-legal approach to more effectively respond to, and to prevent, environmental harms around the world. Integrating theoretical and empirical work, the book presents carefully selected illustrations of how legal and social science scholarship can be brought together to improve policies. The various chapters examine how a socio-legal approach can ultimately lead to a more comprehensive understanding of environmental harms, as well as to innovative and effective responses to such environmental offences.

Part I

Conceptualising a socio-legal approach to environmental harms

Chapter 1

Forging a socio-legal approach to environmental harms

Emanuela Orlando and Tiffany Bergin

1 Legal and social science perspectives on environmental harms

In recent decades environmental harms and crimes have received increased attention from governments and societies around the world. Examples of such harms include illegal dumping of waste, illegal trade in wildlife, and illegal logging. The harms produced by such crimes are vast; for example, the UN Environment Programme and INTERPOL estimate that the illegal logging trade alone is worth some $30–100 billion each year.¹ The magnitude of the harms that can result from environmental crimes means that the question of how to design better legal strategies to prevent these offences needs greater attention from researchers.

Although such offences have been extensively studied from both legal and social science perspectives, these discipline-specific approaches are not, on their own, fully able to address the diverse causes and potential remedies for these environmental harms. Legal approaches to environmental crimes have traditionally focused on the role of criminal law in promoting the effective enforcement of environmental legislation, but tend to overlook the wider range of motivations – both intrinsic and extrinsic – behind environmental offences, as well as the potential added value of non-legal strategies. In particular, by focusing on individuals’ behaviour, legal analyses of environmental crimes are limited by their inattention to the broader social and economic processes that trigger or facilitate global environmental harms and crimes. On the other hand, many social science analyses are hindered by an insufficient grounding in current legislative frameworks, leaving a gap between social science knowledge about the motivations and facilitators of such crimes and current laws and policies to address such crimes.

The increasingly complex and transnational nature of many environmental concerns means that a combination of both legal and social science expertise is needed to comprehensively understand this topic. An interdisciplinary approach that combines legal expertise with findings from social science disciplines could offer significant insight into the drivers of environmental crimes,² as well as the legal loopholes that have allowed environmental criminality to expand so widely. Within social science, the green criminology theoretical perspective – which considers environmental crimes to be by-products of societies’ cultures, economies, and inequalities in resource distribution – can offer particular insight, and fruitfully complement legal scholarship by envisaging new methods and approaches to effectively address environmental crimes.³

There has been so far surprisingly little exploration of the potential for productive collaboration and cross-fertilisation among legal scholars and social scientists in this area of research. The present collection aims to fill this gap. It illuminates new convergences between the fields of law and social science and aims to provide an innovative platform from which to explore cross-disciplinary interactions and foster further research on environmental harms. Specifically, this book envisages a socio-legal approach to these offences that draws upon the strengths of both legal and social science frameworks. Thus, this book’s conception of a socio-legal approach differs from the more specific ‘critical, socio-legal approach’ defined in South’s chapter as a perspective that ‘examin[es] environmental harms that are not statutorily prohibited but regarded as equally or more damaging than some actions that are legal offences’.⁴ Instead, we use the term socio-legal to advance an epistemological and methodological approach that involves the merging of both legal and social science knowledge to improve our responses to these harmful offences. Our definition thus draws upon the idea that ‘socio-legal theory…involves theoretically informed social science applied to law theoretically informed’.⁵ Overall, this volume aims to spur a more comprehensive and in-depth dialogue among lawyers, criminologists, and other social science experts; such dialogue will help stakeholders find points of contact, learn from each other, and ultimately forge a coherent and useful socio-legal approach to more effectively respond to – and prevent – environmental crimes and harms.

2 Defining the scope and object of the study: environmental harms and environmental crimes

A major challenge that must be faced when crafting an interdisciplinary approach to environmental harms and crimes is how to identify and define the subjects of analysis. Depending on context and academic discipline, different terms have, in fact, been used to describe the environmental concerns that form the subject of the present study. The actions we are referring to are very diverse in their composition, motivations, scale, and perpetrators, and such diversity complicates any effort to establish a general definition of these behaviours. In particular, the question of whether environmental ‘harms’ or ‘crimes’ is the most appropriate term to use reflects different disciplinary perspectives to the problem and encompasses a much broader debate about how to define our subject of interest.

On the one hand, legal approaches to the problem tend to employ the term environmental crimes and emphasise the illegality of the acts, omissions, and conducts which cause or are likely to cause harm to the environment.⁶ In this perspective, environmental crimes generally refer to environmentally harmful actions which are proscribed by domestic law or international regulations and conventions,⁷ and, as such, are subject to sanctions. This conception is exemplified by Situ and Emmonds who describe environmental crime as

an unauthorised act or omission that violates the law and is therefore subject to criminal prosecution and criminal sanctions. This offence harms or endangers people’s physical safety or health as well as the environment itself. It serves the interests of either organisations – typically corporations – or individuals.⁸

In practice, the specific elements which constitute an environmental crime (such as the mental status of the offender, or the seriousness of a given conduct) are defined by applicable legislation. Consequently, in the absence of a harmonised legal framework at the international or regional level, the definition of environmental crime will be necessarily subject to geographical and jurisdictional limitations according to the different legal systems and legislative contexts.

On the other hand, and in contrast to these legalistic definitions of environmental crimes, some criminologists tend to use a broader conception of the subject of interest that extends beyond just those acts that are criminalised in law to also encompass harmful (but not necessarily criminalised) acts.⁹ Although not all criminologists have adopted this broader definition – with some adhering to the traditional, legal definition of environmental crimes as those acts proscribed by law – recent trends in critical green criminology have expanded the spectrum of analysis to encompass any conduct that, although per se not illegal, is unsustainable or environmentally harmful.¹⁰ These new approaches argue for wider definitions of environmental harms, and highlight the limitations of the conventional law-based definitions to properly address the range of human acts, behaviours, and social processes which cannot be encapsulated into the strict boundaries of criminal law; nevertheless, such acts undoubtedly exert a negative impact on the environment and trigger serious environmental damage at the domestic and global level.¹¹ A further argument often raised by criminologists is that governments, which control how environmental crimes are defined in their legal codes, may be perpetrators of environmental harms and therefore ‘shape official definitions of environmental crime in ways that allow or condone environmentally harmful practices’.¹² Given this conflict of interest, existing legal definitions may not capture many of the most significant environmental harms.¹³

By widening the scope of analysis to include a more comprehensive and holistic notion of environmental harm, green criminologists and other social scientists working in this area can make an important contribution to traditional legal approaches to the problem. Extending the focus of analysis beyond just non-compliance with environmental legislation or regulatory frameworks enables scholars to also give attention to acts and conducts (such as governmental environmental crime, individual car emissions, and unsustainable consumption choices and behaviours) which negatively impact on the environment but would normally fall outside regulatory frameworks. It also facilitates a better understanding of the diversity of causes and motivations behind environmental harms/crimes. For example, economic profit is normally considered to be the motive behind violations of pollution control laws; however, such violations may instead simply be the result of a lack of knowledge or understanding of the applicable law, or even the offender’s belief that current regulatory demands are unreasonable or illegitimate.¹⁴ Other forms of environmental crimes, such as illegal trafficking of endangered species, of timber, or of precious minerals such as diamonds may be encouraged and alimented by other types of incentives related to the global economy and overall consumer demand. Finally, whereas the majority of existing legal scholarship tends to focus on business violations of pollution control laws, a broader approach to environmental crimes allows us to consider other situational contexts and actors – such as governments, international organisations, criminal bands, terrorist forces, and even private individuals.

However, the manifold benefits of an interdisciplinary approach to environmental harms are also accompanied by important challenges. From a legal perspective, criminal behaviour is typically defined as behaviour subject to criminal sanctions; thus, an overly broad definition of the problem might be over-encompassing and could clash with legal guarantees and the principle of legal certainty. Furthermore, over-extending the concept of environmental crimes could hamper the adoption and implementation of specific legal and regulatory frameworks. It is therefore important for social scientists to engage with legal scholarship and appreciate legal approaches to defining concepts of ‘environmental harm’ and ‘environmental crime’, as illustrated in the legal chapters in this volume. Greater familiarity with legal analysis and with legal conceptualisations of environmental harms and crimes could help criminologists and other social science scholars properly appraise existing legal and regulatory frameworks, and contribute more fully to the development of appropriate policy and legal strategies to respond to such harms and crimes.

This difference between strictly legalistic and broader social science conceptualisations of environmental harms is fundamental, and presents a promising launching point for greater dialogue among lawyers, criminologists, and other social scientists. Both legalistic perspectives and broader, harmed-based perspectives retain significant value for defining the subject matter of interest, but bringing together these approaches could yield a richer understanding of the phenomena, and help researchers move beyond discipline-specific perspectives on these offences. Ultimately, it is contended in this volume that greater interaction and collaboration between law and social science approaches could be particularly useful for identifying the most appropriate response strategies to cope with the breadth and variety of environmentally harmful behaviours.

3 Framing the appropriate responses to environmental crimes: exploring potential intersections between law and social sciences

Determining the types of strategies to respond to, and prevent, environmental harms and crimes has become a central issue in interdisciplinary discussions between law and social science scholars. In focusing mostly on violations of environmental norms, legal responses to environmental crimes have mostly relied on the application of criminal penalties as the strategy of choice. Comparative studies conducted in Europe as well as studies concerning developments in Australia and the US show that criminal law and the application of criminal sanctions have represented an important means of enforcing environmental legislation and promoting compliance with environmental standards.¹⁵ This increased interest in the role of criminal law to address environmental law violations has primarily emphasised the deterrent effect of criminal sanctions. In the European Union, for example, Directive 2008/99 on the protection of the environment through criminal law underlines the need for dissuasive criminal penalties to improve compliance.¹⁶ In addition to the deterrent rationale, criminal liability’s expressive function also supports its use over other mechanisms of law enforcement, such as civil or administrative penal...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• List of contributors
• Acknowledgments
• PART I: Conceptualising a socio-legal approach to environmental harms
• PART II: Assessing the limitations of current approaches to environmental harms
• PART III: Forging socio-legal solutions to environmental harms: lessons from around the world
• Index