Adaptive Capacity, Adaptive Governance and Resilience - Climate Change and Water Governance: Adaptive Capacity in Chile and Switzerland - page 41

systems and institutions, openness of institutions, effective multi-level governance
and the promotion of learning and adaptability (Ebbesson 2010 ; Folke 2006 ) .
Craig ( 2009 , p 24) argues that 'climate change means that regulatory objectives
based on the pre-climate-change characteristics of particular places can and will
become increasingly obsolete. Climate change adaptation law must be able to
accommodate the transforming ecological realities of particular places and not
attempt to freeze ecosystems and their components into some prior state of being'.
While Craig ( 2009 ) focuses here on climate change adaptation law, the broader
ramifications of his arguments extend to legislation and regulation of natural
resources in general. He calls for the law to be able to meet the dichotomy of eco-
logical dynamism and legal stationarity by embracing pervasive uncertainties and
allowing for a 'a multiplicity of techniques to be brought to bear in crafting adapta-
tion responses to particular local impacts while still promoting actions consistent
with overall ecological and social goals' (p10). The law will therefore need to be
sensitive to the complexity in the system it seeks to structure and embrace a multi-
tude of techniques that can be employed to enable adaptation responses as they befit
local needs.
Some jurists have thus started to turn their attention to means of balancing the
search for stability and predictability in legal frameworks with the complexity in
socio-ecological systems and the flexibility required within science based decision
making (Cosens 2010 ; Craig 2009 ; Ebbesson 2010 ; Ruhl 1997 ) . Scholars that have
examined the place that flexibility has in a legal framework (defined by normative
texts and fixed, predictable rules) purport that concepts such as 'principled flexibility'
(Craig 2009 ) or 'measured stability' (Cosens 2010 ) could be useful in addressing
the complex inter-relationship between predictability and dynamic systems and thus
develop capacity to adjust to continual transformation.
Principled flexibility would see provisions that allowed the law and environmen-
tal management goals to reflect shifting baseline hydrological or ecological condi-
tions (e.g. exemption clauses based on continuous informational inputs). This would
imply potential amendments to administrative law (the rules that guide government
agency rule making) to ensure that judicial review enabled a process of review and
adaptability in the law (Craig 2009 ) . Cosens' ( 2010 ) concept of 'measured stability'
refers to the integration of adaptive processes through the utilisation of measured
timeframes based on both the economic and ecological criteria, thus focussing more
heavily on the sound scientific basis to develop the legal toolbox.
In a study of local Canadian water governance contexts, Hurlbert ( 2010 ) suggests
that focusing on participative structures through the concept of 'living law' (of local
communities) would increase adaptive capacity, instead of nurturing path depen-
dency as the law is practiced by socio-technical experts (i.e. lawyers and govern-
ment bureaucrats). This reinforces the important role that legislation and regulation
at different scales of governance plays in adaptive and integrated resource manage-
ment, particularly in the case of water resources governance (Ebbesson 2010 ) . One
of the aims of IWRM is in fact to retain flexibility in water management systems, by
relegating different management mechanisms (monitoring, regulation etc.) to more
'dynamic parts of the legislative system' (GWP 2000 , p 38), such as regional and