| The traditional Canadian legal response to the need for environmental protection has taken the form of an ever expanding body of substantive law and regulation. While useful in certain situations, substantive law strategies frequently fall short of their objectives. This thesis examines the difficulty of achieving effective environmental regulation within the "general disenchantment with the goals, structure and performance of the regulatory state." It is posited that a fundamental reason for the ineffectiveness of the current approach is the unstated assumption that law is able to exert a close, direct and linear influence over other societal subsystems in order to effect desired behavior. On a theoretical level, Gunther Teubner's explanation of the rationalities that underwrite the evolutionary stages of legal development in modern society is used both to illustrate the trajectory of environmental law and to suggest a new reflexive approach that offers enhanced regulatory potential. On a practical level, the concept of responsive regulation, as developed by Ian Ayres and John Braithewaite, is incorporated to assist in pointing to a new direction for Canadian environmental law.;Appreciating law's own limitations as well as the inherent self-referential quality of differentiated social subsystems, reflexive law restricts itself to prescribing procedures for regulated entities to follow rather than dictating legally acceptable behavior. The theme of this paper is that it is only by understanding law's limits in a complex, modern society can we begin the search for more effective regulatory alternatives. |
