Law as a regulator: steering waste management by steering itself through its relationship with the environment

Since 1995, the member states of the European Union (E.U.) have been legally obliged to reduce biodegradable municipal waste, with a final target of 35% of 1995 levels by 2020 and, in doing so, increase the recycling rate to 50%. In 2015, the E.U. has agreed to aim for a recycling rate of 65% by 2030. For the E.U, and the United Kingdom, the achievement of these targets form part of the policies of the waste hierarchy, the zero waste economy and the circular economy. While it is recognised in the literature that there is a link between these concepts, it is not clear how they are connected and how they can be exploited to change human behaviour. The aim of this thesis is to develop a conceptualisation, using Niklas Luhmann’s systems theory, of the relationship between the waste hierarchy, the zero waste economy and circular economy in terms of the social factors – law, economics, politics, etc. ‐ that influence behaviour. The proposed conceptualisation moves away from the notion of waste as a material substance discarded by human beings into the environment; instead, waste is a shared understanding of the transfer of material substances between human beings. Thus, in my reading of Luhmann’s theory, waste is the unusable by‐product of systems and it can only be made usable by external reference to other systems in the social environment. Therefore, my thesis is that the legal system steers the waste management process by steering itself through its relationship with the environment, with steering mediated by organisations, such as households, courts, government departments, local authorities and businesses. Through an encounter between Luhmann’s theory and Cass Sunstein and Richard Thaler’s libertarian paternalism or nudge theory, I argue that organisational decision‐making creates the context or, in Sunstein and Thaler’s words, choice architecture that nudges human beings towards certain behaviour. In turn, it is the choices made by human beings that influence organisational decision‐making. My thesis is demonstrated using the following minicase studies: (a) the development of international environmental law principles; (b)the definition of “discarding” by the European Court of Justice as distinct from the ordinary understanding of discarding; (c) the provision of household waste collection services in England; and (d) the creation of food waste by retailers and the legal jurisdiction of bin‐diving in the context of freeganism.