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The role of law in adaptive governance

Barbara A Cosens, University of Idaho College of Law; Institute for Waters of the West, University of Idaho
Robin K Craig, Wallace Stegner Center for Land, Resources, University of Utah S.J. Quinney College of Law; University of Utah Global Change and Sustainability Center
Shana Lee Hirsch, Institute for Waters of the West, University of Idaho
Craig Anthony (Tony) Arnold, Brandeis School of Law, Department of Urban & Public Affairs, and Center for Land Use & Environmental Responsibility, University of Louisville; UCLA School of Law
Melinda H Benson, University of New Mexico
Daniel A DeCaro, Department of Urban and Public Affairs and Department of Psychological and Brain Sciences, University of Louisville
Ahjond S Garmestani, U.S. Environmental Protection Agency
Hannah Gosnell, College of Earth, Ocean and Atmospheric Sciences, Oregon State University
J.B. Ruhl, Vanderbilt University Law School
Edella Schlager, School of Government and Public Policy, University of Arizona

DOI: http://dx.doi.org/10.5751/ES-08731-220130

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Abstract

The term “governance” encompasses both governmental and nongovernmental participation in collective choice and action. Law dictates the structure, boundaries, rules, and processes within which governmental action takes place, and in doing so becomes one of the focal points for analysis of barriers to adaptation as the effects of climate change are felt. Adaptive governance must therefore contemplate a level of flexibility and evolution in governmental action beyond that currently found in the heavily administrative governments of many democracies. Nevertheless, over time, law itself has proven highly adaptive in western systems of government, evolving to address and even facilitate the emergence of new social norms (such as the rights of women and minorities) or to provide remedies for emerging problems (such as pollution). Thus, there is no question that law can adapt, evolve, and be reformed to make room for adaptive governance. In doing this, not only may barriers be removed, but law may be adjusted to facilitate adaptive governance and to aid in institutionalizing new and emerging approaches to governance. The key is to do so in a way that also enhances legitimacy, accountability, and justice, or else such reforms will never be adopted by democratic societies, or if adopted, will destabilize those societies. By identifying those aspects of the frameworks for adaptive governance reviewed in the introduction to this special feature relevant to the legal system, we present guidelines for evaluating the role of law in environmental governance to identify the ways in which law can be used, adapted, and reformed to facilitate adaptive governance and to do so in a way that enhances the legitimacy of governmental action.

Key words

adaptive governance; administrative law; environmental governance; resilience; water law

Copyright © 2017 by the author(s). Published here under license by The Resilience Alliance. This article  is under a Creative Commons Attribution-NonCommercial 4.0 International License.  You may share and adapt the work for noncommercial purposes provided the original author and source are credited, you indicate whether any changes were made, and you include a link to the license.

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Ecology and Society. ISSN: 1708-3087