Adaptive Capacity, Adaptive Governance and Resilience - Climate Change and Water Governance: Adaptive Capacity in Chile and Switzerland - page 42

local regulations and ordinances. Garmestani and Benson ( 2010 ) also point to
the importance of matching institutions to the appropriate scales in the interest of
balancing stability with flexibility.
Some jurists suggest that legal amendments and new laws are required to develop
a regulatory context that shifts from assumptions of stationarity, to a 'paradigm of
increasing resilience and adaptive capacity, based on assumptions of continuing,
unpredictable, and non-linear change' (Craig 2009 , p 31). Others note that the law
in itself is in fact more dynamic and less rigid than many scholars would suggest
(Hey 2010 ). Not only is the word of the procedural law less certain and inflexible
that one might assume, but substantive law, in terms of property rights and individual
rights, are also subject to renegotiation and development (Langlet 2010 ) , as Table
6.2 shows in its presentation of the dynamic development of the legislative and
regulatory framework in the Swiss and Chilean cases.
Therefore, there is a greater latent potential to shift the discourse and understanding
of property rights and legislation to take account of social-ecological complexity
and uncertainty than might be apparent at the outset. A further challenge, however,
is to achieve this operationally (Langlet 2010 ), and according to shorter timeframes,
since climate change impacts affect both the speed and magnitude of physical
change. With regards to substantive law, Craig ( 2009 ) highlights the importance of
giving meaningful weight to public rights and values in private property in order to
address the challenges governments might face in addressing the impact of climate
change on what the public perceives as 'absolute' private property rights. Langlet
( 2010 ) has also argued that the integration of ecologically subjective property rights
would be an important step in overcoming the barriers that strong and fragmented
property rights pose to integrated and adaptive governance.
Cosens ( 2010 ) also suggests that the notion of stability in legal frameworks is
flawed precisely because of the imbalance between the finality of economic actors
and the flexibility of environmental and scientific interest that has led to gridlock in
and challenges to the current legal system, as dissatisfied actors struggle to have
their interests served. Her concept of measured stability seeks to address this failure,
since it represents a process that does not pit finality against science, but rather
enables the measured integration of science for more effective conflict resolution.
Hey ( 2010 ) also suggests that legal certainty does not necessarily have to be non-
adaptive, purporting that a blend between procedural certainty but changing sub-
stance might address the challenge of shifting baselines upon which rights and laws
are based and the enhanced integration of science into environmental law. Some
jurists have argued that less predictable uncertainty may in fact necessitate more
stable and rigid legal structures, but with more flexible content, as well as flexible
instruments which combine both rigidity and flexibility (Hey 2010 ) . This refers to
instruments that balance the regulatory and enabling function of the law (i.e. the law
as goal oriented), with a process for reviewing and revising those goals once the
specific baselines upon which they are set may become obsolete.
Focussing on the balances between these two elements might be a more produc-
tive framing of the problem than seeing social-ecological resilience as a black and
white trade-off to legal certainty. This argument has also been used to suggest that