Keywords

7.1 On Possible Venues for Legal Development

As mentioned, this book emanates from an interdisciplinary endeavor originating in the fields of law and rhetoric, utilizing perspectives from both fields in service of a common goal (cf. Mossberg 2020 and in general e.g. White 1985; Berger 2010). We might also recall that the approach entailed by the constructive turn fits well with the tendency of legal discourse to attempt to address practical problems through feats of social engineering and, in particular, by developing the regulatory frameworks. Critical evaluation of the current frameworks, including articulating possible new criteria for legal assessment, provides a means for such development. This is where the virtues come in. Currently, the relevant legal criteria are generally formulated in the negative: They highlight deception, manipulation, and unfairness as factors that can make green promises legally problematic (prohibited, and possibly punished). If, for example, an advertisement espousing the “greenness” of a product is deceptive, the advertisement can be deemed a prohibited and unfair commercial practice, pursuant to the EU Directive on Unfair Commercial Practices or any of its national implementations, such as the Swedish Marketing Act (Marknadsföringslagen 2008: 486). Note that, while we, being Swedes, here refer to an EU context and use Swedish law as an example, the questions treated have broader implications. A shift of focus could in principle be productive in many different jurisdictional contexts; it could imply developmental avenues for a more effective green legal framework, perhaps even more generally outside the realm of marketing law.

As a parenthetical example, intended to illustrate the primarily negative focus, it might here be mentioned that the Swedish Marketing Act does in fact state that “Marketing shall conform to good marketing practice” (Article 5). The Swedish wording (“Marknadsföring ska stämma överens med god marknadsföringssed”) ends with “sed”, which can also be translated as “mores”—with the same root as morality. The Act hence directs attention to something to aspire to, rather than just something to avoid. However, deviating from good marketing practice does not in itself mean that one’s marketing efforts are legally prohibited. A supplementary test of “unfairness” (“otillbörlighet”) is necessary (pursuant to Article 6). Even if an instance of marketing is deemed “unfair”, that does not mean that it is also legally prohibited. That requires an additional discretionary assessment (pursuant to the prohibition rule in Article 23; see generally about the rules, e.g. Bernitz 2020; Svensson et al. 2010; and on the EU context e.g. Durovic 2016). Hence, the apparent focus on good practice is somewhat misleading, as it is only part of a larger system of legal technicalia which focuses more on the negatives to avoid (unfairness, which should also be prohibited), than on the good practices to aspire to. It should also be noted that, as a matter of legal methodology, the requirement to conform to good marketing practice is normally considered subsidiary to other prohibitions of the Act. There are thus primary provisions, such as the prohibition of misleading marketing in Article 10 (e.g. Bernitz 2020; Svensson et al. 2010), and this reinforces the impression that the focus is first and foremost on the negative.

Now, even without deferring to the conventionally established distinction between the is and the ought, one might ask: Does it have to be like this? We believe that the negative focus has become part of the naturalized myths of legal discourse in a way that supplies cognitive legitimacy to the negative, in a sense fault-finding, approach. As an available mythical basis of legal argument (cf. Bengtson 2012), this naturalized myth is general: it has sway far beyond the scope of marketing law. No doubt, the negative focus, in part, follows from the fact that it ties in well with fundamental conceptions of the basic freedoms of persons—as regards to promissory utterances and marketing efforts, especially the freedom of speech. The basic idea would be that anything not expressly forbidden should be considered permitted and that only behavior, including speech, of a more “destructive” kind should be forbidden (cf. e.g. Heide-Jørgensen 2017). The implication is that the paradigm of the regulatory framework is some sort of Holmesian “Bad Man” (Holmes 1897): A staple of legal thinking, a cynical character, unbothered by the trappings of conventional morality, a selfish person whose dishonest machinations need to be predicted and thwarted by the legal system.

A focus mainly on the negative means that the law is in a sense always playing catch-up and being caught up in trying to discourage unwanted behavior, rather than being able to encourage the opposite desired behavior more directly. (Thus far, our argument in this section is of course a massive simplification, hinged on a deliberately one-sided perspective—as the discouragement mechanisms are part of a larger, massively complex apparatus designed to guide practical action in many different ways, degrees, and directions—but, please, bear with us, as we have an idea that we want to develop.)

A shift of focus along the lines of the constructive turn, from the vices of green marketing to its possible virtues and to more commendable examples, can provide new argumentative potential and, in effect, new ways to argue in legal contexts. It can also be a means of developing argumentative potential already inherent in legal discourse. By expounding law’s less observed potentialities, it is possible to elucidate suppressed argumentative patterns, in effect supplying alternative norms, or at the very least alternative evaluative criteria. Expressed in terms of rhetorical theory, a shift of focus can provide new topoi for lawyers to argue on and for legal decision makers to consider in their decisions. (On topical rhetoric, see e.g. Perelman & Olbrechts-Tyteca 1969; Gabrielsen 2008; on topics in a legal context, see e.g. Viehweg 1953; Balkin 1996; Mossberg 2020.) Such a topical novelty seems legitimate, as, in principle, there is no reason for the law to focus one-sidedly on the bad apples when a comparison with more virtuous examples can provide just as effective regulatory and determinatory guidance.

A focus on the commendable, rather than on the reprobate, is also at least partly conformable with some of the so-called soft law instruments applicable to marketing efforts, such as ethical rules and guidelines of the industry. The characterization “soft” follows from the fact that soft law rules are not in themselves “binding”—unlike “hard law” rules, such as statutory provisions, which are by definition binding within their jurisdiction. However, soft law instruments can sometimes be taken into account when applying hard law rules—for example, when ascertaining what is to be considered good marketing practice, in the sense of the aforementioned Marketing Act. Thus, the soft law instruments can provide openings for a more positive, and constructive, focus, as it builds on what is already accepted within the legal framework, understood in a wide sense.

For example, the ICC Advertising and Marketing Communication Code, which is one of the main soft law instruments relevant to marketing, states, in Article D1, that environmental marketing communication should involve honest and truthful representations, which correlates to some of the sins of greenwashing (mostly obviously the sin of fibbing). This provides a beachhead that could be used as a landing stage in ascribing legal relevance to the virtues of green marketing, by building on intellectual structures already positioned within law’s empire. A progressive development, focusing on virtues, could connect to the greenwashing discussions and utilize the spectrum from sins to virtues by taking account of the criticisms and articulations of the concrete problems associated with green marketing, as well as the ethical values to aspire to. This could provide new topoi and ways of sharpening the precision of the rules and the way they are applied. Here, this is only intended as a hopefully illustrative example of a place where the argumentative potentialities of law might be developed by considering the virtues. Correlating green marketing virtues, on the one hand, with the demands of the soft law instruments, on the other, seems to us to be a worthwhile research task in itself, a separate task, which cannot possibly be accomplished within the limits of this book. However, performing such a study might very well reveal opportunities to further develop both the regulatory framework and the theoretical framework for green promises. It thus seems like a promising avenue for further research.

Further, even if, as a matter of legal rhetoric and analysis, we would keep the focus on the negative and thus continue to “encourage the good” merely indirectly by “prohibiting the bad”, the virtues can still be helpful. Namely, because a way of ascertaining “the bad” could be to compare an evaluated instance of marketing (e.g. an advert) with “the good”, in the sense of the ethical standards supplied by the virtues of green marketing. This would be similar to the apparent method of the aforementioned statutory rule stating that marketing should conform to good marketing practice. As already implied, this possibility entails that a framework building on the virtues could guide the application of already established prohibitory norms. This framework can supply argumentative and analytical topoi, which can legitimately be taken into account, especially when there is already-accepted argumentative scaffolding available, such as hard law, which provides a bridge to soft law instruments in turn providing a bridge to the virtues.

7.2 Regulatory Development Is Only Part of the Solution

The prevalence of greenwashing criticism suggests that the need for regulatory development is both present and pressing (cf. e.g. Scanlan 2017). Regardless of its validity, widespread criticism can effectively serve to delegitimize the phenomenon being criticized, as it fosters cynicism and distrust. Indeed, researchers have warned us about “the alarming cynicism being displayed by consumers about green products” and how “green marketing will not work in the face of consumer distrust” (Peattie and Crane 2005; cf. e.g. Tan et al. 2016). Given the possible constructive effects of green marketing—in strengthening the institutions of climate change and the need for climate transition, as well as to guide consumption in more sustainable directions—efforts to strengthen, or at the very least maintain, the legitimacy of green marketing thus seem appropriate.

Now, it is of course easy to state that the responsibility for such efforts should fall on the actors doing the marketing, as they are the ones who stand to benefit. However, in our view, we all stand to benefit from the opinion-forming effects of green marketing. To us, this seems to be the primary societal value of green marketing as a form of public rhetoric. Encouraging the productive epideictic effects of green marketing (rather than merely shaming corporations engaged in said practice) appears to be not only appropriate but indeed necessary. The positive epideictic effects constitute the main reason why green marketing can be considered a legitimate, or even commendable, societal practice, and not just a tolerated legitimation practice aimed at padding the bottom line of “greedy” corporations. These epideictic effects are also the main rationale for developing the regulatory framework in a way that fosters ethical green marketing, and by extension, the legitimacy of green marketing as an integrated part of a sustainable society.

So, how could a transformation along these lines become reality, and actually make it off the drawing board? For starters, we need to widen our views on possible agents and arenas for change. This widening is consistent with our cross-disciplinary approach. We move relatively freely between the realms of law and seemingly non-legal rhetoric. Though often treated as separate, in our view, these two regions are communicating vessels. Recollecting our earlier treatment of the concept of legitimacy within institutional theory (Chap. 3), it can be noted that organizations are not only regulated by hard law. They are also guided by more loosely formed societal norms and expectations, as well as various soft-law regulations (such as ethical standards and codes of conduct). Combined, these elements of societal institutions shape our common understanding of what is perceived acceptable and desirable organizational behavior. Importantly, however, organizations are not only receptive. Through their own conduct, they can provide a benchmark, and through manipulative legitimation practices, they can target the norms of an institution. They can thereby take part in (re)negotiating the societal norms that they themselves must adhere to.

A change of the institutional demands on an organization can begin in various parts of the system and be driven by various types of actors. The formal legislature, albeit clearly an important driver of change, does not hold a monopoly on supplying the norms guiding societal practices, and, as legislating is by its very definition a political enterprise, societal norms and values are obviously important, as they both supply and constrain the real-world opportunities of the legislator.

Returning to classical Athens, we could make use of the concept of nomos, which is of equal importance for scholars of rhetoric and law. Interestingly, the classical Greek word nomos (νόμος) denotes written laws as well as social customs and traditions. This implies something about their view of society and law. While the Greeks acknowledged the need for common norms for a sustainable society, the holistic conceptualization of that norm system, implied by the inclusive meaning of nomos, illustrates that culture constitutes a whole. The negotiation, and continual re-negotiation, of nomos is not limited to courts or a small group of legislators. Instead, it extends to all practitioners of public discourse. Change can therefore start in any part of the nomic system that regulates behavior. The best possibility for change, however, arises if several similar transformations of expectations occur simultaneously. Hence, the discussion on how to best facilitate a constructive turn in green marketing to impact society should include voices from several different sectors of society and academic fields. Admittedly, we point to the realm of soft law as a potential driver of change, both directly in the realm of practice and indirectly by influencing the hard law application of the formal judicial system. However, a structural change, a truly paradigmatic shift in green marketing, can only occur when mutually reinforcing shifts take place simultaneously across different parts of the system.