General Design Principles for Resilience and Adaptive Capacity in Legal Systems--With Applications to Climate Change Adaptation

Abstract

No force has put more pressure on the legal system than is likely to be exerted as climate change begins to disrupt the settled expectations of humans. Demands on the legal system will be intense and long-term, but is the law up to the task? If it is, it will at least in part be because the legal system proves to be resilient and adaptive. The question this Article explores, therefore, is how to think about designing legal instruments and institutions now with confidence they will be resilient and adaptive to looming problems as massive, variable, and long-term in scale as climate change. Drawing from the body of resilience theory forged in natural and social sciences, this Article is the first to synthesize resilience theory in a framework relevant to lawyers and explore the general design principles it suggests for legal systems. Part I examines resilience - what it is and how to design for it in legal systems. It examines the normative dimensions of resilience and makes important distinctions between resilience of legal systems, resilience of laws they produce, and resilience of the other social and natural systems law addresses. Part II provides the theoretical context and design principles for adaptive capacity, focusing on adaptive management theory as an example for legal design. Part III suggests applications of these general principles to the challenge of designing law for responding to climate change, arguing that climate change adaptation law should draw from theories of adaptive management, dynamic federalism, new governance, and trans-governmental networks.