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  1. 1. Political Psychology, Vol. 33, No. 1, 2012doi: 10.1111/j.1467-9221.2011.00863.xLegal Innovation for Social Change: Exploring Change andResistance to Different Types of Sustainability Laws pops_863 105..121Paula CastroISCTE-Lisbon University Institute and CIS-IULIn this article I argue that a desirable future direction for political psychology would be to pay more attentionto social-psychological processes involved in the response to innovative laws, in particular those devised withsustainability and environmental protection aims. This involves taking into account the following premises: (1)innovation and change are not unitary phenomena; instead there are different types of innovation; (2) legal andpolicy innovation is a specific type and is highly central in an era when global challenges are increasingly dealtwith by global treaties which are then translated into national laws with a call to transform local practices; (3)offering attention to the reception of such innovation involves developing specific conceptual tools; (4) devisinga typology of legal innovation is one step in this direction; (5) furthering our comprehension of how people,groups, and institutions receive—i.e., accept, contest—legal innovation for sustainability is important forhelping to push forward sustainability goals, which are legislated but far from attained. The present article outlines theoretical tools for addressing psychosocial processes involved in the receptionof legal innovation, drawing mostly on the approach of social representations and the literature of environ-mental psychology, and offers three criteria for a typology of laws. Finally I present some examples of responsesto subtypes of legal innovation from the sustainability domain, taken as an illustrative case, and discussdifferences and commonalities in the processes of acceptance and resistance that each mobilizes.KEY WORDS: legal innovation, sustainability, resistance Social and Cultural Change as a Field of Sociopsychological Inquiry Societal change presents us with a paradox. On the one hand, change, often experienced asuncontrollable, is a constant in our societies. On the other hand, and in contrast, change alsopersistently fails to happen in our societies, as certain transformations recognized as highly desirableremain unaccomplished. This paradox signals, of course, that societal change is not a unitary phenomenon. Even if wedifferentiate between change ignited by natural causes and change driven by human-made innova-tion, the later is not unitary either. Therefore a vital step for understanding change is the creation oftypologies distinguishing: different types of innovation and change (1), that are proposed to societyby different social systems (2), and that mobilize different psychosocial phenomena (3). Human-made innovation, occurring when previously nonexistent ideas or artefacts are introducedin society, is the focus of the present article. However, as mentioned, human-made innovation is farfrom being a unitary phenomenon. In our societies it can emerge from three main spheres: thetechno-scientific, policy-legal, and public spheres. Techno-scientific innovation—like the innovations 105 0162-895X © 2011 International Society of Political Psychology Published by Wiley Periodicals, Inc., 350 Main Street, Malden, MA 02148, USA, 9600 Garsington Road, Oxford, OX4 2DQ, and PO Box 378 Carlton South, 3053 Victoria, Australia
  2. 2. 106 Castroat the origin of GMOs or in-vitro fertilization—is extremely visible and sometimes provokes blatantresistance like the one European publics offered to genetically modified foods (Bauer & Gaskell,2002). However, the modifications it brings often seem to progress in spite of resistance. In contrast,certain innovations originating in the policy-legal sphere can remain unattained for long periods, whilecollecting consensus. Examples include efforts to lower carbon dioxide emissions or to generalize theuse of condoms to prevent AIDS. Despite the investment of high amounts of work and money for tryingto generalize this type of innovation, some of its goals take a long time to be reached. Even as theyreceive clear public support, it needs to be assumed that they also meet with resistance, and of atype—subtle resistance—which requires a better understanding. Finally, innovation can also emergefrom the public sphere (Jovchelovitch, 2007). Here, innovation may promote societal change througha number of processes, such as the influence of minority movements (Castro & Mouro, 2011;Moscovici, 1961/1976; Orfali, 2006), the contact between different cultures (Jovchelovitch & Gervais,1999; Wagner, Duveen, Verma, & Themel, 1999), or the transformations performed upon concepts ofscientific, legal, or policy origin (Moscovici, 1961/76; Spini & Doise, 1998). Innovation in this sphereintertwines then with innovation produced in the other two. In view of this, the present article concentrates on one type of human-made innovation only:innovation originating in the legal and policy sphere. This type is highly central in an era of globalchallenges, increasingly dealt with by global or supranational commitments (Beck, 2009) subse-quently translated into national laws, which are called on to transform local practices. Conse-quently, the psychosocial processes involved in the reception of these laws and in the translationshappening between levels (global, national, local) need to receive more attention from both politi-cal and social psychology. They are part of a broader question with deep implications for politicalpsychology: the question of how to better understand the psychological citizen. In other words, howto better understand the psychosocial processes through which people adjust to a certain sociopo-litical order (Moghaddam, 2008), assuming that “adjust” may in some cases mean “resist.” Thisrequires looking at how people incorporate aspects of the normative system, viewing this system asincluding not just values, ideologies, or informal norms (Moghaddam, 2008), but also actual lawsand policy commitments. Aiming to sharpen conceptual tools for addressing the issues above, the present article will: (1)appraise some difficulties and lacunae in the social-psychological knowledge of the reception oflegal innovation; (2) establish some generic conceptual premises to further our understanding of howlegal and policy innovation may be accepted and internalized, generate generalized societal change,or be resisted; (3) identify subtypes of legal innovation, and look at the specific psychosocialprocesses each mobilizes, offering examples from the sustainability and environmental protectionfield used here as an illustrative case study. Change and Social Psychology: Some Difficulties Although the topic of innovation and societal change has always interested social psychology,there are several reasons why the discipline has not offered more attention to it. The first reason isthat too often analysts forget that change is not a unitary phenomenon (see Armitage & Conner,2001), and different types of change involve different psychosocial aspects (Stern, 2000). In parallel,the various types of innovation have not received the same amount of attention. Even the theory ofsocial representations, which has the goal of examining how innovation transforms social knowl-edge, has more extensively studied how scientific innovation transforms common sense (Bauer &Gaskell, 2002, 2008; Moscovici, 1961/76; Wagner, Kronberger, & Seifert, 2002) and has offeredscanter attention to legal innovation (but see Spini & Doise, 2005). The peripheral place accorded to legal innovation may be due to various reasons as well. One hasto do with the fact that the concept of “norm” does not differentiate in a clear fashion between
  3. 3. Change and Resistance to Legal Innovation 107informal norms and formal or legal ones (those included in legislative frameworks; e.g., Cialdini &Trost, 1998). Most research on norms assumes that people are part of more or less voluntarily formedsocial groups, in which norms are codefined without constraints, and thereby ignore the institutionaldimensions (and inequalities) of social life (Uzzell & Rathzel, 2009, p. 7), laws included. The neglectof the distinction between formal and informal norms has detrimental consequences. It makes itimpossible to examine whether formal and informal rules mobilize differing psychosocial responsesor are internalized and negotiated in different ways, and therefore leaves important aspects of thepsychological citizen uninterrogated. This neglect may, in turn, be linked to the fact that most of theresearch guided by the concept of norms elides the role of time. The inclusion of time could,nevertheless, make even more operative the important distinction between prescriptive norms (indi-cating how things should be) and descriptive norms (how things are) (Cialdini, Kallgren, & Reno,1991). Studies using the distinction often disregard that, in order to fulfil their role, legal norms mustnecessarily in time convert from prescriptive to descriptive. This has diverted attention from pro-cesses promoting or slowing down this conversion and has also prevented a comparison of the paceof this conversion across different types of laws, whose targets and/or binding forces may vary. Another reason for the neglect of change promoted by legal innovation is the pervasiveness insocial psychology of a conceptualization of power as involving dependence and repression (Simon& Oakes, 2006). Recent research has highlighted the need to take into account the way power canalso be a source of social change (Simon & Oakes, 2006). Yet even these accounts focus more on thepower of informal groups and tend to forget the power of governments and societal institutions forpromoting change through legislative and policy means. They therefore again overlook the institu-tional aspects of change and its societal dimension. However, at this point, when global governanceis a reality in many areas, understanding change means that the societal dimension needs to beconsidered, and at several levels: the role of national institutions for imposing innovative forms ofbehavior needs to be taken into account (Farr, 1998; Foucault, 1980), but so does the role ofsupranational and global institutions (Castro & Batel, 2008; Castro & Mouro, 2011). One area where global and national governance are today attempting to stimulate major soci-etal transformations is undoubtedly that of sustainability. In many countries around the world andclearly in European Union (EU) Member States, environmental protection and sustainability arecurrently goals supported by numerous regulations and laws (Baker, 2007), some of which origi-nate in global treaties and commitments. Surveys show how these goals attain a generic and highpublic consensus. However, practices have not changed to the same extent (Vining & Ebreo,2002). These facts have in the last years renewed the interest of social scientists in the questionsof how: (1) to accelerate changes in both public and private-sphere behavior (Stern, 2000); (2) tobetter conceptualize the ideas-practices relationship; (3) to make more effective the institutionalmediating systems—agencies, institutes, and offices—in charge of implementing new laws (Castro& Mouro, 2011). This article contends that in order to respond to these challenges, and use the insights gained tohelp environmental protection and sustainability move forward, some psychological disciplines mustmore consistently focus on the legal and institutional side of societal change. The legal and institu-tional aspects of change are integral to the political, and so this is clearly a task for politicalpsychology. But the focus on these aspects of change can also help social and environmentalpsychology overcome the notion, still prevalent in many studies, that achieving social change meansmainly remodelling the behavior of single individuals (Uzzell & Rathzel, 2009). Focusing on thelegal and institutional side of change can stimulate research to pay more attention to the relations andcommitments of individuals in the social world, as citizens or professionals, as shall be illustrated.It can inspire accrued interest in the institutional support innovative sustainability laws receive—orlack—in the different contexts and institutions to which individuals are committed as citizens orprofessionals (Castro & Batel, 2008). It can also motivate studies to look at the interplay of power
  4. 4. 108 Castrorelations between the various institutions and groups involved in the production and transformationof green discourses (Harré, Brockmeier, & Muhlhausler, 1999). Extending our understanding ofthese aspects can then be an important contribution for both psychology and sustainability. Specific Objectives in Examining Societal Change The difficulties appraised above suggest that extending our comprehension of the psychosocialprocesses through which legal innovation is accommodated in the preexisting fabric of socialknowledge and relations requires an approach capable of inviting us to look at relations rather thanisolated individuals (Elcheroth, Doise, & Reicher, 2011), like that of social representations. Impor-tantly for addressing our topic here, this approach assumes that social change is not an on/offaccomplishment, but a complex process resulting in the coexistence of competing meaning (Castro& Batel, 2008; Castro & Lima, 2001; Spini & Doise, 1998; Wagner et al., 1999). The socialrepresentations approach also sees change as unfolding in phases and demanding a temporal per-spective. Moreover, some of these phases endow certain representations and discourses with insti-tutional force (Batel & Castro, 2009; Elcheroth et al., 2011), and this affects resistance to innovationand change in specific ways. In the next sections these proposals will be substantiated, further drawing on the approach ofsocial representations and the literature of environmental psychology. A typology of legal innovationwill afterwards be offered, with the following criteria for differentiating subtypes of laws: (1)whether the binding force of the innovations is exerted directly upon individuals or groups or upongovernments; (2) what is the target of the laws: whether they apply to individual behaviors, like thosebanning smoking in certain places, or regulate intergroup relations, like the laws of public involve-ment; and (3) and whether the laws apply to behaviors of the private or of the public sphere. A lastsection will illustrate the typology with examples from the environmental and sustainability researchin order to also contribute towards a more encompassing understanding of this field. Conceptualizing Change Linked to Legal Innovation Change as a Temporal Process: The Stages of Legal Innovation As mentioned, a temporal perspective is fundamental for understanding societal change. Amodel of four stages can help in organizing the development of legal and policy innovation (seeCastro, Garrido, Reis, & Menezes, 2009a). During Stage 1—the Emergence stage—an innovative idea or concern emerges in society, oftenproposed by a minority. During this phase the process of social change is mainly bottom-up: the newidea starts spreading, and a new set of values and a new discourse start to organize around it. If thenew values or discourses come to achieve a certain level of social consensus and legitimacy, it mayhappen that new measures follow at the societal level. The new societal measures are taken in Stage2—the Institutionalization stage. In this stage the new consensus is translated into a set of legal,policy, and institutional innovations (see Castro, 2006 and Baker, 2007 for examples of this processfor environmental protection). This translation is of course not a simple or undisputed process, buta contested one, with different groups attempting to shape these laws in different ways (see Rosa &Silva, 2005, for an analysis of the different values and goals expressed in the documents producedby the different stakeholders for the EU debates preparing the Natura 2000 biodiversity protectionlaws). Once the new laws are in place, and the new mediating systems in charge of implementing them,like Ministries or Governmental offices and agencies, are created, the Generalization stage begins.
  5. 5. Change and Resistance to Legal Innovation 109In this third phase, the legal innovations are proposed to society through media campaigns, plans, andother incitements aimed at transforming ideas and coordinating them with practices. At this point themain direction of change is top-down.1 At this crucial stage resistance factors may intervene to slowdown the process of laws, converting from prescriptive to descriptive. Only if the Generalizationphase is brought to full realization do we enter the fourth and last stage: Stabilization, when actionand discourse become fully coordinated. The benefit of hindsight helps appreciate these usually slow transformations. The transforma-tions that occurred in the early twentieth century in the area of hygiene and sanitization are a goodexample. If today hygiene practices are not the object of debate and controversy, but routine, this isthe result of a major and prolonged societal effort (Beck-Gernshein, 2000). In our days ecologicaland sustainability concerns seem to be undergoing a similar process, and the parallel does not gounnoticed, as the extract below testifies: Activist of environmental NGO: ideally these (ecological behaviors) should be daily habits, like, like . . . like showering every morning . . . things that are taken for granted . . . and go unquestioned . . . and you don’t think about . . . habits that are natural . . . (Group inter- view, July 1999, see Castro, 2006). This extract illustrates well the idealized trajectory of what can be termed normative change, aprocess in which formal laws devised at the macro level become in time norms accepted from the“inside,” at the micro level, integrated as cultural imperatives, or “things that are taken for granted”(Castro & Mouro, 2011; Foucault, 1980, 1982). This process of internalization hinges on the fact that,in current democratic societies, citizens have a “delegative status” which makes them “agents” of thelaws (Foucault, 1982; Rutherford, 1999) and determines that in time laws tend to function as normsrather than as rigid prohibitions (Rutherford, 1999). In other words, in time “the normative systemmoves from the macro to the micro level and becomes effective in personal relationships” (Moghad-dam, 2008, p. 894) and everyday decisions. The importance of certain objects, such as the Islamic veil,as “carriers” that signal the internalization of certain old and stabilized macro norms and show theidentity of the psychological citizen as aligned with them has been highlighted (Moghaddam, 2008). However, more needs to be known about the psychosocial processes operating in phases whennew laws are being proposed and new routines still need to be established. From the point of viewof social representations, these are phases when laws as societal proposals are in the process ofchanging from being only “transcendent” representations (existing independently of the practice towhich they are relevant; see Harré, 1998), and become interwoven in practices across variouscontexts (Castro & Batel, 2008). Achieving this is the major task of the Generalization phase, andduring it certain social-psychological phenomena play a major role for accelerating or slowing downchange. Acceptance and Resistance to Legal Innovation as Social-Psychological Phenomena The previous section illustrated how social change is a complex process unfolding in phases andhow societal change cannot happen without the coordination of discourse and action, of what is saidand what is done (Brown, 2001; Castro & Batel, 2008; Giddens, 1979). However it is crucial to alsotake into account that it is possible for innovation to initially impact only one of these levels—discourse or action—and that sometimes the two levels can remain uncoordinated for long periods1 These phases should not be taken as static and clear-cut ones, of course; the model presented is, like all models, a simplified description of main trends; there are in all phases instances of top-down and bottom-up influences, showing how law constantly influences society and vice versa.
  6. 6. 110 Castroof time, with talk sometimes even replacing or postponing action (Harré, Brockmeier, & Muhlhau-sler, 1999). This means that action and talk need to be conceptualized as two separate but interde-pendent levels. Consequently, the fact that discourse can be seen as action, that is, as performingcertain functions regarding the constitution of social reality (Howarth, 2006; Potter, 1996), shouldnot make us forget that not all action is discursive (Brown, 2001) and that talk and action only acquiretheir full meaning in relation to each other (Giddens, 1979). These facts—discourse and action are two separate but interdependent levels—have majorconsequences for the study of change led by legal innovation. They open to individuals, groups, andinstitutions various possible routes for resistance to legal innovation during the Generalization phase,which will next be presented. This in turn raises new research questions about the extent to which typesof resistance vary with types of laws, something to be discussed in the final sections of the article. A first possibility for resistance arises from the alluded-to fact that action and discourse can bekept disconnected: people can take advantage of this by expressing agreement with legal and policyinnovations while failing to act accordingly. The most recurrent finding of environmental research isprecisely this gap between ecological attitudes (consistently high) and ecologically relevant behavior(always lower; Vining & Ebreo, 2002). This means that many individuals declaring agreement—orpositive attitudes—towards behaviors like recycling or water saving also declare that they do not infact recycle (Castro et al., 2009a; Vining & Ebreo, 2002) or do not save water (Kurz, Donaghue,Rapley, & Walker, 2005). This gap is most consistently found for private-sphere behaviors but is lesswell established for public-sphere ones (Mouro & Castro, 2010), a fact which emphasizes therelevance of identifying different types of laws and examining if they are indeed linked to differenttypes of resistance. Other possible routes for resistance to new laws arise from the very nature of discourse andcommunication. Because discourse and communication are not forms of “conveying information”but instead transformative activities (Marková, 2008), they produce “translated objects” (Bauer &Gaskell, 2008), and not simple “copies.” In other words, there is a potential for resistance embeddedin the vulnerability of language to resignification (Bauer & Gaskell, 2008; Raby, 2005). This appliesto many innovations, of course, not just new laws. All types of new norms or values can bereinterpreted and resignified, and it is through their reinterpretative re-presentation that socialrepresentations and discourses come to evolve and change (Castro & Batel, 2008; Howarth, 2006;Marková, 2008; Moscovici, 1981; Potter, 1996). However, this fact is especially important for newlaws. Because many laws, or some of their components, are formulated in rather generic and vagueterms—identifying desirable goals and values to be respected, but not forcibly defining in detail theactions to be performed—they are particularly vulnerable to resignification. However, being laws,meta-knowledge about them signals that the resignification work has to keep within certain sociallyapproved boundaries (Castro & Batel, 2008; Howarth, 2006). These are defined, among other factors,by the interplay of the various groups and institutions involved and by how “natural” or “correct”certain linked social arrangements are viewed in a culture (Moghaddam, 2008). If a certain new lawhas no cultural resonance and no consensus it can be rather difficult to implement it: an example isthe U.S. prohibition of alcohol in the 1920s, a famous failure. These aspects together have severalconsequences. One consequence is that hybrid representations can be created and made to accommodate bothagreement and disagreement with the legal and policy innovations. This can be done through thecreative elaboration of arguments which present, under a conciliatory light, ideas or practices thatformerly seemed contradictory (Castro & Lima, 2001; Kurz et al., 2005). The notion of “sustainabledevelopment” offers an example of this creativity: during the initial years of the Emergence stage ofecological change, “green” critics raised many objections to “development” as unfair to some groupsand entailing too much consumption of resources; however, when later on “development” becamequalified as “sustainable,” the resulting expression became acceptable and influent (Uzzell &
  7. 7. Change and Resistance to Legal Innovation 111Rathzel, 2009). Today the fuzzy and conciliatory notion of “sustainable development” is omnipres-ent. It is so broad that even groups with diverging goals can find their interests represented in it,which is positive from the point of view of social cohesion (Uzzell & Rathzel, 2009). However, thissame broadness may act as a barrier to radically altering previous practices and shows how thehuman capacity for symbolically overcoming contradiction through conciliatory notions and dis-courses can be a form of resisting innovation as much as a way of adapting to it. Another way of expressing both agreement and disagreement with the same issue is by resortingto different views and positions in different contexts (Jovchelovitch & Gervais, 1999; Wagner et al.,1999). Still another is by using the general/concrete distinction and agreeing with the issue in generaland disagreeing for concrete cases (Castro & Batel, 2008; Spini & Doise, 1998), as shall be seen inmore detail further on. Expressions of both agreement and disagreement can also be linked toambivalence. One consequence of living in societies with heterogeneity of views, such as ours, isexposure to competing core values (Keele & Wolak, 2008) thematized by alternative arguments anddiscourses (Marková, 2008). In the Generalization phase, it has become clear to citizens that the newlaws reflect new core values; however, these new values do not fully replace the old ones: instead, oldand new values live together in the culture (Castro & Lima, 2001), which exposes citizens toopposing messages (Keele & Wolak, 2008) and may result in ambivalence (Castro et al., 2009a). Andsince lower ambivalence is associated with higher belief strength (Keele & Wolak, 2008), ambiva-lence can be seen as a factor promoting resistance. Here the relevance of defining subtypes of legalinnovation becomes again evident, for, from the various the types of resistance identified above,some may be contingent upon the type of legal innovation involved. Mediating Systems and Change A further consequence of many laws being formulated in generic terms becomes manifest whenlaws are translated to concrete, contextual practices. During the Generalization phase, institutions thatwork as mediating systems, such as offices, regulatory agencies, institutes, or NGOs, and also the massmedia, are called to do this translation and become pivotal actors in change led by legal innovation. Infact, many legal innovations require the constitution of new mediating systems to give them concretecontent and implement them. For instance, in EU Member States many Green Dot societies werecreated to implement European Parliament and Council Directive 94/62/EC on packaging and(recycling of) packaging waste. As these institutions are responsible for offering concrete content tothe abstract formulations of the laws (Castro & Batel, 2008), the contextual resignification processesthey operate result in different versions of the laws arising in practice. Some specific law-practicetranslations can minimize the potential impact for change implicit in the new laws, while othertranslations can maximize it (Castro & Batel, 2008). The other side of this is, naturally, that thecommunities and individuals to whom mediating systems pass on their versions of the new laws alsotry to contest and reshape these. This suggests that a political psychology concerned with thepsychosocial aspects of the reception of new laws needs to focus on the detailed examination ofcommunication between mediating systems and their publics. This can reveal the power positionsof the groups involved in contesting or applauding the laws, how these may be linked to issues ofperceived legitimacy of knowledge (Batel & Castro, 2009; Howarth, 2006), and how discourses areemployed for advancing change or resisting it (Castro & Batel, 2008; Morant, 2006). Varieties of Legal Innovation: A Typology The next sections present the criteria for a typology of legal regulations, offer examples of newlaws regulating sustainability-relevant practices, and discuss some of the psychosocial processes
  8. 8. 112 Castromobilized by different subtypes of these new laws. A typology is a powerful descriptive tool, capableof producing a synthetic overview of a topic and the research about it. It helps locate the subtypes forwhich there is a full body of studies and identify the less studied ones, thereby helping detect topicsfor future research. A typology of laws can be defined according to three criteria: (1) The binding target of the laws: whether the laws only bind governments or if they directlybind individuals/groups; some of the new environmental laws only directly bind governments. Forinstance, following EU Directives transposed to their legal frameworks, many EU Member Stateshave issued legislation committing them to attain certain percentages of recycled waste by a certainspecified year. Waste Framework Directive (Directive 2008/98/EC) is the latest example; it laysdown targets for EU Member States for the recycling of waste for the year 2020: 50% for householdwaste recycling. These laws do not stipulate sanctions to individuals that fail to act in the specifiedway (e.g., that fail to separate domestic waste), and so they do not directly bind individuals; theyhowever bind the governments. (2) The context of the laws: behaviors of the public sphere or of the private sphere. Thesustainability literature has shown the importance of considering different predictors for behaviors ofeach sphere (Stern, 2000). (3) The level at which the laws operate: criteria considering whether the laws target individualbehavior or regulate intergroup relations (Castro & Batel, 2008). Laws targeting individual behaviorare, in many cases, although not all, rather unambiguous: for instance, “it is forbidden to smoke inoffices” is a law directly applying to individual behavior and leaving little space for interpretation.Laws regulating intergroup relations—like those asking for public consultation of communities forlarge projects—are often characterized by larger margins of ambiguity in the definition of the actualpractices to be followed. The combination of the three criteria produces eight theoretically possible subtypes of laws. Thenew sustainability laws, namely those instigated by EU Directives of recent years, include lawsexemplifying almost all subtypes. For instance, the biodiversity protection laws that forbid theconstruction of new houses in protected areas are laws “of the public sphere,” “directly binding forindividuals” and targeting “individual behavior.” The laws stipulating levels of recycling of domesticwaste are laws “of the private sphere,” “directly binding for governments only” and targeting“individual behavior.” The laws about public consultation are laws “of the public sphere,” “directlybinding for individuals” and targeting “intergroup relations.” The pages to follow will resort to examples taken mostly from environmental research in orderto illustrate the psychosocial processes associated to different subtypes and how these contribute toslowing down or accelerating the pace of the changes the laws propose. The examples will makeclear what the topics are and the psychosocial processes researched per subtype. This will also showwhich subtypes received more attention from research and which received less. These matters willthen be discussed in the concluding remarks. Case 1: The Private SphereSubcase 1.1. Laws Are Directly Binding Only for Governments—But These Need theCollaboration of Individuals As mentioned, there are various examples of legal innovations for sustainability directly bindingonly governments, and not individuals, although governments cannot attain their goals without thecooperation of individuals. The new laws and regulations governing the practices connected to therecycling of domestic waste and to energy and water conservation are examples of this subtype oflaws. Since these laws bind governments, these finance media campaigns and devise institutionalarrangements, such as curbside collection, as measures intended to gradually change the behavior of
  9. 9. Change and Resistance to Legal Innovation 113individuals in their private spaces. The measures, characteristic of the Stage of Generalization, signalthe new national core values and norms. Therefore individuals can be expected to avoid blatantopposition to them. However, research abundantly shows people still circumvent the laws invarious ways, namely by keeping ideas and actions uncoordinated (Vining & Ebreo, 2002). Asmentioned, it is also reasonable to think that this process is accompanied by ambivalence, since bystimulating the social debate, legal innovation originates new arguments and counterarguments(Marková, 2008; Moscovici, 1981), and consequently heterogeneous ideas regarding the samesocial object become available for individual decision making, promoting ambivalence. Sustain-ability studies are starting to focus on ambivalence (Castro et al., 2009a; Ojala, 2008), and resultsshow that those individuals who report high ambivalence also report lower levels of recyclingbehavior, as compared to those who report low ambivalence (Castro et al., 2009a). In sum, then,ambivalence seems to slow down the acceptance of these new laws and may be one major resis-tance factor to this specific type of laws. Environmental research has abundantly focused on the proecological behaviors of the privatesphere regulated by laws targeting individuals only indirectly, through the commitments of theirgovernments (see Bamberg & Möser, 2007). The major research result is the already mentioned gapoften found between attitudes/beliefs and behaviors. Not many of these studies, however, directlyinquire about laws. One study about water conservation does and has shown an interesting contra-diction: while in general respondents disagree with the prospect of having the government imposinglaws for water conservation, they clearly indicate that if they existed these laws would be useful andeffective (see Corral-Verdugo & Frías-Armenta, 2006, Table 1, p. 414). However, their beliefs on theefficacy of the laws do not predict their water-conservation behaviors. In other words, in order to beeffective, the laws must exist as such, and not as informal norms. This is interesting indirect evidencesupporting the notion that informal and formal norms work through different psychosocial processesand future research needs to differentiate them. Important in this regard is also that it has been shown that the more public these privatebehaviors become, the more consistent the attitude-behavior relation becomes. For instance, publiccommitment to certain ecological behaviors of the private sphere can increase their performance(Joule, Girandola, & Bernard, 2007). A group discussion can more effectively change the use of toxiccleaning products compared to individually targeted messages (Werner, Sansone, & Brown, 2008).This accentuates the same aspect highlighted above: making these behaviors public may be a formof intensifying the social pressure over them, particularly during the Generalization phase, whensocial control over attitude-behavior consistency can be anticipated.Subcase 1.2. Laws Are Directly Binding for Individuals and Regulate Behaviors of thePrivate Sphere Despite the relevance offered by the sustainability discourse to changes in individual behaviorfor resource conservation (Uzzell & Rathzel, 2009), conservation laws directly targeting individualsby prohibiting or enforcing new behaviors in the private sphere are not abundant. Instead, the rule inall EU Member States is, as mentioned, that governments and mediating systems organize educa-tional and structural measures. However, there are exceptions. In Switzerland, there are differentbags for different types of waste, and if nonrecyclable waste is put in the wrong bag, agents—healthand police officials—can look inside for clues of the offender’s identity. If the person is found, s/heis imputed a fine. And some cities, such as New York City, have created laws that enforce fines uponcitizens who throw away certain recyclable materials.22 The laws offer first-time offenders in one to eight-unit residences the option to attend recycling workshops in lieu of paying fines (New York City Council;
  10. 10. 114 Castro Examples from the past, like the hygienist transformations of the nineteenth century, can alsoprovide more insights into this case. Whereas until the nineteenth century health was God’s affair, thehygienist theses transformed health into a scientific and legislative matter (Beck-Gernshein, 2000).Institutional actors, like health professionals and governments (Porter, 1993), devised laws thatmade, for instance, vaccination mandatory and created a sanitary police force able to enter the privatesphere. In time, the interference of the police in the private space of fellow citizens became not justaccepted but requested as a right (see Castro, Lima, Sousa, & Sobral, 2009b). This shows that thecontrol mechanisms became stronger when what was formerly private (hygiene and health habits inthe home) became redefined as being also of public interest. For current environmental research, andfor a political psychology seeking to better understand the psychological citizen, this indicates a needto devise studies able to provide comparisons between contexts (countries or regions) where there aredifferent types of laws—directly and indirectly binding citizens to certain private sphere behaviors. Case 2: The Public SphereSubcase 2.1. Laws Are Directly Binding for Individuals/Groups, and Remodel Intergroup Relations In order to illustrate some of the psychosocial processes operating when legal innovation targetsintergroup relations in the public sphere and is directly binding for individuals or specific groups, twoexamples will be discussed: (1) the new legal framework regulating public involvement; (2) someaspects of the new laws regulating protected areas for biodiversity conservation. Regarding the first example, after the Rio 92 Summit several countries around the world signedtreaties committing them to depend on local participation as a key element for sustainability, like theAgenda 213 or the Lisbon Treaty on Sustainable Towns (1996). During the last decade, several EUDirectives and Regulations, like Regulation (EC) 1367/2006, were also issued, emphasizing the needof incorporating the suggestions of the public into decision making (Gonçalves, 2002). The innovativelaws these documents originated initiated a reconfiguration of lay-expert relationships, threateningestablished power positions and altering the forms of legitimization of knowledge systems (Batel &Castro, 2009). Therefore resistance to them was to be expected from those, like experts and decisionmakers, who previously had more decision-making power (Simon & Oakes, 2006). However, as these are laws, resistance to them needs to assume socially approved forms (Castro& Batel, 2008). In this regard, resignifications attenuating their potential for change, but not opposingthem directly, are an example of a possible resistance path. This was illustrated by a study looking ata community controversy in which residents invoked the new laws for contesting the nonexistence ofpublic consultation regarding a major rehabilitation decision affecting them (see Castro & Batel,2008). The discourse of urban rehabilitation experts dealt with the contestation by resorting to thegeneral/concrete distinction (Castro & Batel, 2008). This distinction enabled them to defend publicparticipation as a good idea in general, but as not applicable to the concrete, particular controversyunder discussion. The professionals also argued that as citizens they considered the new participationlaws positive, but as experts and professionals they considered their own knowledge more legitimate(Batel & Castro, 2009). Another, recurrent, form of expert resistance to public participation was thestrategy of offering a minimalist version of public participation. This involved the experts presentingtwo aspects of the laws of participation—information and involvement—as equivalent, therebyredefining information given to the public as involvement and as sufficient to assure participation. Thiscan be considered a minimization (Potter, 1996) strategy, and it was found not just for urban3 Here are some of the goals of Agenda 21, as stated in Section 1: “The overall objective is to improve or restructure the decision-making process so that consideration of socio-economic and environmental issues is fully integrated and a broader range of public participation assured. (. . .) To develop or improve mechanisms to facilitate the involvement of concerned individuals, groups and organizations in decision-making at all levels” (source: res_agenda21_08.shtml).
  11. 11. Change and Resistance to Legal Innovation 115rehabilitation, but also for water management (Lima & Pato, 2006). The result of thesere-presentations of the laws is the closing down of their potential for change, maintaining theexpert-public relations only minimally reconfigured. The second example regards new laws which reconfigure lay-expert relationships by, instead,giving more power of decision to experts, not the public, like some of the laws associated with theNatura 2000 Network of protected sites and others governing natural parks. The Natura 2000network of protected sites is a set of areas currently covering about 20% of EU territory. Over the lastdecade, biodiversity protection in EU member states has largely been concentrated in the sites of thisnetwork, which include both private and state-owned land. The sites are governed by new lawsresulting from national adaptations of European Commission (EC) Directives4 and by the institutionscreated to implement them nationally. The initial definition of areas and priorities relied almostexclusively on biological and ecological expertise (Castro & Mouro, 2011). In the first years,conservationists feared that encouraging participation would make it even more difficult to ensureecological protection (Chan et al., 2007; Stoll-Kleemann, 2001). Communities were not given arelevant role and their knowledge of local issues was undervalued (Hiedanpää, 2005). However, the Natura 2000 laws and other designations of protected areas were followed bycontroversy among certain professional groups, such as farmers and hunters, calling for moreparticipation in the decision-making process (Buijs, 2009; Carrus, Bonaiuto, & Bonnes, 2005;Hiedanpää, 2005; Hovardas & Stamous, 2006). The EC subsequently prepared new guidelines andregulations for biodiversity conservation, with “sustainable development” as the central notion and aclearer focus on conciliation between ecological and economic goals (Castro & Mouro, 2011). In thesequence of Agenda 21, the Natura 2000 laws now also demand public consultation, and conservationprojects financed by the EC need to include forms of consulting the stakeholders. Yet, even whenparticipation processes are put into motion, actual change may take a long time to happen. Buijs (2009)illustrates in a longitudinal study that joint meetings and the signature of an agreement on themanagement of a Natura 2000 site after a period of strong conflict improved the relations betweenexperts and the community, but brought no significant changes to the government’s plans for the area. All of this shows how the response to new laws is not a simple and linear process, but indeed acontested, interactive one in which different groups try to have voice, while refraining from directlyattacking the new core values, when these, as is the case for sustainability, meet with socialconsensus.Subcase 2.2. Laws are Directly Binding for Individuals/Groups and Force Changes in Behaviorsof the Public Sphere The Natura 2000 laws are varied and can be approached from two levels: that of inter-grouprelations, as in the example above; and that of the individual reception of laws that seek to transformindividual behaviors for the sake of biodiversity protection. These include changes in agriculturaland land management practices, water uses, hunting traditions, and building processes. In this latercase we are dealing with laws targeting individual behaviors happening in the public sphere; we shallnow look at some psychosocial processes highlighted by the research for this subtype of laws. Studies based on interviews and focus groups with residents in Natura 2000 sites in Portugal(Castro & Mouro, 2011; Mouro & Castro, 2010) have shown that these residents never blatantlycontest the importance of biodiversity conservation laws. However, the exact meaning of specificconservation rules and the stringency with which these should be implemented in concrete cases arehighly debated and contested issues. Here, too, arguments are based on the distinction between the4 Council Directive 1979 (Birds Directive) and Council Directive 92/43/EEC (Habitats Directive) formed the initial legal framework for Natura 2000 network of protected sites, and suffered some amendments along the years, like those of Directive 2009/147/EC.
  12. 12. 116 Castrogeneral case (I agree with the laws) and concrete situations. Through this distinction, laws arepresented as lacking functionality, with examples grounded in concrete cases. One example (seeCastro & Mouro, 2011): Local inhabitant (focus group): For instance, I really agree . . . that, for example, regarding the bats . . . or the lynx, or whatever animal it may be . . . , very well, if they exist or existed, I believe they must be preserved. Now, I cannot accept that two bats, a bat-couple, will for two years prevent the construction of what could be an asset for me. The example illustrates how the resignification of laws through the general/concrete distinctioncan originate subtle resistance arguments. In this case, the argument used indicates that protectionmay be a correct option, in general, when there are colonies of bats, but not for the concrete casementioned, where there are just one or two, or a few, bats. The final result, as with the publicparticipation laws discussed above, is an attempt to minimize the laws. But arguments such as thesealso show how discourses about biodiversity anchor both in general categories (core values linked tothe “green discourse,” and to EU and national laws) as well as in local knowledge and concerns. Some studies used surveys to look at what shapes support of the new law-governed protected areas(Bonaiuto, Carrus, Martorella, & Bonnes, 2002; Carrus et al., 2005; Mouro & Castro, 2010). Theseprovide clear evidence of the importance of identification processes. However, a strong local identityis in some cases positively associated with support for new the conservation laws (Carrus et al., 2005)while in others it predicts resistance to them (Bonaiuto et al., 2002; Stoll-Kleeman, 2001). Thesecontradictory findings seem to be due to other psychosocial factors. One such factor is communitieshaving/not having been involved in the decision-making processes, with involvement resulting in moreacceptance (Carrus et al., 2005; also Carrus, Cini, Bonaiuto, & Mauro, 2009). Another factor is peopleowning/not owning land in the region, an indicator of whether they are/are not directly bound by thelaws. For those owning land in Natura 2000 sites a stronger local identity predicts more positiveattitudes towards the protected site and support of the new practices (Mouro & Castro, 2010). Thesefindings suggest that when individuals or groups have to deal directly with the new regulations, prideof living in a protected area is particularly relevant to enable positive evaluations of the legalinnovations. Another interesting contribution for discussing the role of identification for a positiveevaluation of new environmental laws comes from work showing that, contrary to expectations, placeidentification does not significantly relate to the probability of performing illegal antiecologicalbehavior, like “camping in a beach” or “building a dwelling on land designated for agricultural use”(Hernandez, Martín, Ruiz, & Hidalgo, 2010). As remarked by the authors (p. 287), this may be due tothe fact that the measure of identification used regarded the country, i.e., was not associated with aspecific territory. In other words, the relation between (refusing to do) illegal environmental actionsand place identification may only emerge when people link the laws to concrete places. From another area, examples of laws regulating public sphere behaviors and directly bindingindividuals are those prohibiting smoking in public places. In the EU the laws are rather recent, andso we still lack studies. However, in face of what is said above, there are reasons for predicting thesuccess of the law: this is an unambiguously identifiable behavior, happening in the public space, andthe laws came after a well-advanced public debate about the negative effects of smoking. In fact, thelaw seems to have met in most countries, and surely in Portugal, with irrefutable success, in a fewweeks changing the public behavior of smokers. Evidence from the United States, where the laws areolder, converges in showing that public support for the smoke-free law increased from 56% to 63%after its implementation, and that respondents were more likely to perceive smoke exposure as ahealth risk after the law took effect (Rayens et al., 2007). Again, here the evidence points in thedirection of the need to differentiate informal from formal norms, even in domains—like thedetrimental effects of smoke—that have been under public debate for many years.
  13. 13. Change and Resistance to Legal Innovation 117Subcase 2.3. Laws Are Directly Binding Only for Governments and Force Changes in IntergroupRelations in the Public Sphere The European Commission has issued regulations for promoting the production of energy fromrenewable sources—wind, solar, and hydroelectric—with the goal of reducing greenhouse gasemissions and dependence on fossil fuel (Directive 2003/30/EC and Directive 2009/28/EC). The goalis for EU Member States to attain energy that is 20% renewable by 2020. These are thus regulationsthat bind governments and may alter the relationship between local communities and both govern-mental experts and the companies proposing the new technologies. A study of the reception ofoffshore wind farms in the U.K. coastal area has shown that resistance to these projects is againassociated to identification and representational processes (Devine-Wright & Howes, 2010). Somecommunities represented the wind farms as disruptive because they were industrializing the area(Devine-Wright & Howes, 2010). In this case, stronger levels of place attachment were associatedwith resistance behaviors, such as signing a petition against the wind farms. In other communities,where the landscape was run down, levels of contestation were lower, and place attachment wasunrelated to either support or protest. Concluding Remarks At the outset, this article suggested that a desirable future direction for political psychology wasto focus more on how legal innovation may encourage societal change, paying particular attention tonew laws and institutions currently governing sustainability and environmental protection. It alsocontended that extending the analytic tools for addressing the effects of, and reactions to, this typeof innovation could help reach sustainability goals. The article then dealt with two priority tasks for this: (1) systematizing some theoreticaltools for tackling the psychosocial aspects slowing down or promoting change lead by legalinnovation; (2) offering criteria for a typology of legal innovation. Next, the article, aiming atproviding good descriptions as a precondition for future explanations (Moghaddam, 2008; Mos-covici, 1989), examined examples of environmentally relevant behaviors and practices governedby different subtypes of new sustainability laws. The examples highlighted the followingconclusions. When laws are directly binding for governments but not for individuals, and they target privatesphere behaviors, the main type of resistance is likely to be a gap between talk and action, as inrecycling, or water and energy conservation. Experienced ambivalence seems to play a relevant rolein this case, as the behavior is less frequently performed by those experiencing it. Making thesebehaviors more public seems to diminish the gap. Formal rules seem also more effective thaninformal ones. This implies that future research relevant for political psychology could compare thecoordination of discourses and practices (or lack of it) of individuals living in places with lawstargeting only governments, with those of individuals in contexts where laws can enforce individualsanctions upon the same behaviors. Another important direction for future research would be tocompare the arguments people offer as justifications for the un-coordination of their actions anddiscourses (when such is the case) in both these contexts. This would be a way of seeing whether andhow formal laws, as compared to informal rules, affect the limits of what is taken to be acceptableor legitimate, why and for whom. In turn, when laws are directly binding for individuals, and not just for governments, the paceof change importantly depends on whether the laws target individual behavior or relations betweengroups. When laws regulate individual behavior happening in the public sphere, unambiguouslydefined, which has been the object of previous lengthy debates that built some consensus, and areconsistent with cultural imperatives, we can anticipate quicker change for behaviors, and an increasein support for the laws, as happened with the nonsmoking laws.
  14. 14. 118 Castro Regarding laws that regulate not individual actions per se, but instead intergroup relations andthus may challenge power, various forms of resistance are to be expected. Resignifications operatedupon the new laws regulating intergroup relations rely on creative and socially approved distinctionssuch as the general/concrete, the citizen/professional, and also on the minimization of the potentialfor change implicit in the laws. When used by professionals of institutions in charge of translatingthe laws, these distinctions may transform the original proposals of the law in the very processof offering them concrete content. Consequently, a political psychology agenda interested inlegal innovation can include further attention to how and when mediating institutions minimize ormaximize the potential transformations the laws entail. Also to be taken into account is the centrality of identification processes for the reception of newlaws regulating behaviors in the public sphere, both when these laws attempt to alter individualbehaviors and when they target intergroup relations. For a better understanding of these processes,it is important to analyze the public debate in the periods preceding and following the issuing of thelaws (looking at the media, for instance). Examining the decision-making process when the lawswere prepared and identifying active contributors and absent groups (Castro, Mouro, & Gouveia,2011) would also be a way for political psychology to develop knowledge about decision makingregarding the production of laws. Still regarding directions for future research, two striking conclusions become immediatelyobvious when we differentiate between types of laws through the typology here proposed. The firstis that psychological research so far has clearly concentrated on one subtype of laws: those regulatingbehaviors of the private sphere governed by laws that usually target only governments directly. Thesebehaviors are even sometimes taken as the central examples of proenvironmental behavior. Forinstance, a sizeable part of the studies included in a recent meta-analysis of the “psychosocialdeterminants of pro-environmental behavior” (Bamberg & Möser, 2007) regard recycling; energyconservation, green consumerism, and travel mode choice are the other behaviors included. Virtuallyno studies about biodiversity conservation or public participation practices are included, i.e., nostudies about proenvironmental behaviors of the public sphere governed by laws targeting intergrouprelations are analyzed. This corroborates the notion that psychology too often relies on the premisethat achieving social change means remodelling the behavior of individuals (Uzzell & Rathzel,2009). A political psychology focus concerned with legal innovation would help bring to the fore thatsocial change also means remodelling the relations among certain groups, and/or between these andcertain societal institutions, stimulating the engagement with environmental policy and decisionmakers (Spence & Pidgeon, 2009). A second conclusion that can be drawn by taking into account the variety of subtypes of laws hereidentified is that psychological studies have given rather scarce attention to the various practices of thepublic sphere governed by laws that target professional groups. There are numerous sustainability lawswhich enforce new practices in the recycling of electric and electronic residues (e.g., Directive2002/96/EC making producers responsible for the collection of residues), or in the construction ofbuildings for reasons of energy performance (e.g., Directive 2002/91/EC) or in energy production,stimulating renewable sources (Directive 2003/30/EC). How are these laws devised? What values dothey try to balance and whose responsibilities do they remodel? Who were the groups able to helpshape them and those that were not? How do all of these questions affect the legitimacy attributed tothe laws by a society? These are also important subjects to study for understanding the “psychologicalcitizen” (Moghaddam, 2008) and how many of the tasks he/she performs are coachieved with theirgroups and respond to intergroup dynamics. These subjects, as well as a focus on the reception of legalinnovations, can also be an important complement to the various policy recommendations recentlyissued by the APA task force on the interface between psychology and climate change. To summarize, this article suggested that a political psychology interested in understanding socialchange supported by legal innovation needs to consider that, because not all action is discursive,
  15. 15. Change and Resistance to Legal Innovation 119sometimes a discourse successfully aligned with the core values of the legal innovations can be a formof resisting altering practices. The article furthermore suggested that in their relation with innovativelaws and regulations, people, groups, and institutions try to push and redefine the borders of what theselaws and regulations allow. They do this through a number of subtle, creative, and recurrent resistancestrategies, which testify to their meta-knowledge about the limits of resistance. For research, this means that examining resistance should not be only searching for activeprotest and collective action regarding the new laws, but also exploring whether or not subtler formsof resistance systematically emerge associated to specific laws, groups, and contexts. This wouldallow for the construction of a cartography of socially acceptable forms of resistance, helpful forunderstanding how new laws, as aspects of the normative system, are incorporated by the psycho-logical citizen (Moghaddam, 2008). This incorporation might occur differently if the laws belong todifferent types. The above analyses also show that the proposed typology, by identifying different types of laws,and hence facilitating the detailed examination of each type, was instrumental in demonstrating thatlegal innovation is in fact not a unitary phenomenon. This, in turn, recommends future systematiccomparisons of the varieties of prosustainability behavior regulated by laws of different types.Therefore, the present typology can be the basis for a future meta-analysis comparing predictors andprocesses for each subtype, instead of either neglecting some and/or analyzing very differentbehaviors and practices as if they were all the same. Now that studies about these topics haveaccumulated, this meta-analysis would help researchers attain a broader perspective of what con-tributes to accelerating or slowing down change lead by different types of legal innovation. ACKNOWLEDGMENTS Correspondence concerning this article should be sent to Paula Castro, Departamento de Psi-cologia Social e das Organizações, Edifício ISCTE-IUL, Av. das Forças Armadas, 1649-026 Lisboa,Portugal. E-mail: REFERENCESArmitage, C. J., & Conner, M. (2001). Efficacy of the theory of planned behaviour: A meta-analytic review. British Journal of Social Psychology, 40, 471–499.Baker, S. (2007). Sustainable development as symbolic commitment: Declaratory politics and the seductive appeal of ecological modernisation in the European Union. Environmental Politics, 16, 297–317.Bamberg, S., & Möser, G. (2007). Twenty years after Hines, Hungerford, and Tomera: A new meta-analysis of psycho-social determinants of pro-environmental behaviour. Journal of Environmental Psychology, 27, 14–25.Batel, S., & Castro, P. (2009). A social representations approach to the communication between different spheres: An analysis of the impact of two discursive formats. Journal for the Theory of Social Behaviour, 39, 415–433.Bauer, M., & Gaskell, G. (Eds.) (2002). Biotechnology—the making of a global controversy. Cambridge: Cambridge University Press.Bauer, M., & Gaskell, G. (2008). Social representations theory: A progressive research programme for social psychology. Journal for the Theory of Social Behaviour, 38, 335–353.Beck, U. (2009). World at risk. Cambridge: Polity Press.Beck-Gernshein, E. (2000). Health and responsibility: From social change to technological change and vice versa. In B. Adam, U. Beck, & J. Van Loon (Eds.), The risk society and beyond: Critical issues for social theory (pp. 123–135). London: Sage.Bonaiuto, M., Carrus, G., Martorella, H., & Bonnes, M. (2002). Local identity processes and environmental attitudes in land use changes: The case of natural protected areas. Journal of Economic Psychology, 23, 631–653.Brown, S. (2001). Psychology and the art of living. Theory & Psychology, 11, 171–192.Buijs, A. (2009). Public natures: Social representations of nature and local practices. Wageningen, The Netherlands: Alterra.
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