Adaptive Capacity, Adaptive Governance and Resilience - Climate Change and Water Governance: Adaptive Capacity in Chile and Switzerland - page 40

strong evidence that legal regulations have failed to protect environments or
promote sustainable development (Ebbesson 2010 ; Ostrom 2005 ) . The level of
degradation of ecosystems (including freshwater ecosystems) and loss of biodiver-
sity (MEA 2005 ) is proof in point that law and environmental law have not been
able to or set up to adequately balance the weighting of economic and environmen-
tal interests for different social groups (Cosens 2010 ). One challenge has been that
while legal systems have tended to be fragmented, yet principle based and rigid,
the ecological systems for which they are constructed to govern, tend to be inter-
connected, non-linear, complex and dynamic (Garmestani and Benson 2010 ) .
Another issue has been the challenge of reconciling the scientific quest for truth (in
continual revision and questioning) within legal systems that are designed to provide
finality (conflict resolution, legal codes). Cosens ( 2010 ) argues that while fi nality
serves the interests of economic actors, it is science that serves environmental inter-
ests, implying a skewed balance in current frameworks.
This is not to suggest that the law has totally failed in areas of preservation, con-
servation and restoration of the environment. Law and regulation relating to natural
resources management and territorial management has tended to be based on pres-
ervation and restoration paradigms, which have assumed that ecological change is
both predictable and reversible (Craig 2009 ). In many countries (e.g. Europe and
North America), the development of environmental law has provided for increased
protection of the environment over the course of the twentieth century (refer to
Table 6.2). However, as the twenty-first century dawned, some environmental scholars
have argued that the tools used to address the pollution problems of the mid-twentieth
century were no longer adequate for tackling the complex climate related challenges
(Shellenberger and Nordhaus 2004 ). This argument suggests that the structure and
rigidity of the preservation paradigm may be better suited to areas of pollution con-
trol regulation and conservation (Verschuuren 2007 ), than to the interpretation of
legislative challenges that relate to complex and interacting social-ecological sys-
tems. The preservationist components of environmental law themselves are linked
to assumptions of stationarity and uniformitarianism (Ruhl 1997 ) , limiting the abil-
ity to confront emerging, cross-scale and cross-boundary challenges (Garmestani
and Benson 2010 ). Therefore, while the form of regulation and control may be apt
for the environmental quality challenges of the twentieth century for which much
environmental legislation and regulation was designed, the interlinked, unpredict-
able and potentially irreversible impacts of global environmental change (with climate
as a major component), the aptness of prior approaches may not be as relevant.
Legal scholars suggest that there is a burning need for the law itself to become
better able to support more adaptive and flexible frameworks to meet the challenges
posed by climate change. Craig ( 2009 , p 23) suggests that 'both regulatory goals
and the legal mechanisms for accomplishing them will have to be centred on the
concept of change itself'. However, this increasing focus on enhancing flexibility is
juxtaposed by the search for stability and certainty within legal frameworks (Barnes
2010 ; Craig 2009 ). The challenge in reconciling legal frameworks, that imply the
rule of law and legal certainty, with the complex challenges posed in the governance
and management of social-ecological systems is seen to focus on a set of resilience
based requirements for coping with surprise and uncertainty: flexibility in social