抄録
The article discussed the roles of soft law in EU environmental governance. It demonstrated that, even in environmental issue-areas, the EU has introduced new modes of governance, a core element of which is soft law. On the basis of these empirical observations, the article theoretically examined the implications of soft governance on EU democracy, on the one hand, and the possibility of soft law as a vehicle of discourse, on the other hand. The article argued that the softening of EU environmental governance by too much depending on soft law may disturb the subtle balance of the Community method between supranational legal processes and intergovernmental political processes, thereby leading to democracy without the Parliament. However, by drawing on discourse approaches of Hajer and Dryzek, the article also suggested that soft law can serve as a vehicle of discourses that construct a shared story-line, around which a discourse coalition between the Commission, the Council and the Parliament is established, and this discourse coalition enables the EU institutions to facilitate communicative network. In this sense, the article asserted that soft law as a vehicle of discourse is an interface between law and politics and therefore environmental governance studies need to pay attention to discourse politics on soft law.
The article is divided into six sections. First, the article made a quick survey of new modes of governance such as framework directives, coregulations/self-regulations, open method of coordination, network initiatives and regulatory agencies, taking example of the introduction of these modes into environmental governance and thereby illustrating the emergence of soft governance in environmental issue-areas. Second, the article examined the concept of soft law as a core element of new modes of governance, referring to the legal approach of Senden and the political approaches of Trubek et al., and then offered the widest possible understanding of soft law, which consists of non-binding instruments that are preparatory, interpretative and supplementary and can be expected to minimise sovereignty cost and even to change actors' identities through mutual learning. Third, the article clarified the characteristics of soft governance as civic participation and softer legalisation and argued that the use of soft law in governance implicates democracy based on European civil society and democracy based on the nation state, however, this type of governance mode may lead to democracy without the Parliament. Fourth, the article theoretically examined the possibility of soft law that serves as a vehicle of discourse, which enables the Commission, the Council and the Parliament to facilitate communicative network. Fifth, the article gave specific contexts to the foregoing theoretical arguments, by reviewing EU environmental governance from two viewpoints: multi-level participatory arrangements; and the softening of obligations. Finally, referring to the conceptualisation of Dryzek, the article considered a possible environmental discourse coalition between the Commission, the Council and the Parliament, which is based on the story-line of sustainable development orientated towards democratic pragmatism and economic rationalism.
Based on these forgoing arguments, the article tried to demonstrate that studies on environmental governance in the institutional complex of the EU need to pay attention to two facets of soft law: the possibility of undermining the Community method; and the potential of constructing a discourse coalition, which may conceal from view the former.
