Refining Reflexive Environmental Law by Nature and Nurture: Autonomy, Accountability, and Adjustability

Abstract

Reflexive environmental law (REL) enables an understanding of how law builds potential for private company reflexivity. Reflexivity helps to avoid lock-in, and enhances learning and self-organization to resolve complex sustainability challenges. Thus far, REL theory has excluded traditional command-and-control regulation as a form of REL. This limits the potential of REL to understand how legislation can drive reflexivity and create more effective governance. Our framework expands the definition of REL and sets out six types of regulatory instrument found in legislation that may, or may not, constitute forms of REL. The framework comprises three reflexive drivers – autonomy, accountability, and adjustability – and, under these, eleven REL techniques. Through examples taken from European environmental legislation, we explain the drivers’ relationship with different regulatory instruments. This taxonomy empowers regulators and scholars to understand both the reflexive potential of regulatory instruments and the possibility to make instruments more reflexive in specific contexts.