Drawing from the body of resilience theory forged in the natural and social sciences, this article is the first to synthesize resilience theory into a framework relevant to legal scholars and explore the general design principles it suggests for legal systems. By fusing these two concepts, this article suggests applications of these general principles to the challenge of designing laws for climate change response, arguing that climate change adaptation legislation should draw from theories of adaptive governance, dynamic federalism, new governance and trans-governmental networks . Drawing on the emerging research and scholarship on resilience theory, this article is the first to synthesize resilience theory into a framework relevant to legal scholars and explore general design principles for resilience and adaptability in legal systems.
It also addresses the normative dimensions of resilience theory and makes important* distinctions between the resilience of legal systems, the resilience of the laws they produce, and the resilience of the other social and natural systems addressed in law.
Defining System Resilience
To examine these questions for the purposes of legal design, the following subsections outline the basic principles of resistance theory and apply them to the legal system context. An earthquake can throw the ball out of the low saucer, but not out of the tall vase. 34;precariousness of the system defines how close the current state of the system is to such a threshold.
Another difference between the two strategies has to do with what resilience theory calls the response diversity of the system, which is "the diversity of responses to disturbance among species or actors that contribute to the same function in the social-ecological system."21 Because it opens up options, response diversity increases resilience.
When Is a Legal System Resilient?
Indeed, a resilience theorist would certainly interpret some features of the American legal system as exhibiting robust versions of engineering strategies of resilience. See STUART KAUFFMAN, AT HOME IN THE UNIVERSE: THE SEARCH FOR LIGHTS OF SELF-ORGANIZATION AND COMPLEXITY pointing to these attributes of the common law as evidence of its sustainability as a system). The persistence and eventual downfall of the legal system that supported American slavery provides an example.
To extend this line of reasoning further, it is important to distinguish between resilience in the legal system and resilience in other natural and social systems targeted by the law. It is also important to distinguish between the resilience of the legal system's underlying structure and processes and the stability of the law's substantive content—that is, the longevity of particular legal systems' behavioral outcomes in the form of decisions by executive branches, legislatures, courts, and agencies. Of course, the volatility of the substantive content of the law is something many actors in the legal system worry about, but it is a product of the legal system, not part of its structure and process.
There may be many reasons to prefer stability in the substantive content of the law, and this can guide or constrain the choice between technical and environmental resilience strategies for the structure and process of the legal system. Moreover, these design choices take place at multiple scales within and across the vast domain of the legal system. examining the effectiveness of Section 23A of the Federal Reserve Act in achieving its objectives in practice).
One component of the larger system—to use an all-too-real example, our financial justice system—can fail, but the justice system as a whole can continue to be resilient. For example, most of the focus of legal scholars interested in social-ecological systems is on how the law can facilitate the resilience of the social-ecological system.
Designing for Resilient Legal Systems
ADAPTIVE CAPACITY
Defining System Adaptive Capacity
Conversely, "[a] system may have a property that is robust to one set of disturbances and yet fragile to [another property]. Resilience expands and contracts."5 Trade-offs within a system are not the only reason resilience is variable. This section examines what this means in theory and what it means for the legal system. changing latitude), "move[ing] the current state of the system away from or closer to a threshold" (changing uncertainty), "fabrication". A system that relies heavily on engineering type resilience attributes such as reliability and efficiency may prove to be flexible without adaptation precisely because it is very resistant to change.
Also, because of its rigidity, such a system can be vulnerable to large-scale disruption if some internal failure or external disturbance breaks down the wall of resilience.62 Flexibility can be a useful safeguard against this possibility. Of course, there is a limit to how much a system can adapt before it is no longer the same system. Adaptability means "the resistance of a system to changes in resilience,"6 meaning that the goal of adaptation is to keep the basic identity of the system intact.
Optimizing the system to adapt to a particular set of perturbations could potentially reduce resilience to unknown perturbations.' Like resilience strategies, therefore, adaptive capacity strategies have trade-offs.
When Is a Legal System Adaptive?
The closest example to be found is in the emerging decision-making process theory of adaptive management in natural resource law. This decision method approach has come to be known as adaptive management." Not surprisingly, its founder is none other than C.S. Holling, who shortly after falsifying resilience theory laid out adaptive management theory in an influential book, Adaptive Environmental Assessment and Management.69.
Holling and his fellow researchers found that conventional environmental assessment and management methods were at odds with the emerging model of ecosystem dynamics, so they focused on the basic properties of ecological systems to provide the premises for a new method of assessment and management. o Traditional management. Among the new paradigms in ecology, none is more revolutionary than the idea that nature is not delicately balanced in equilibrium, but rather dynamic, often unpredictable, and perhaps even chaotic."); see also Bryan Norton, Change, Constancy, and Creativity: The New Ecology and some old problems, 7 DUKE ENVTL. Christensen et al., Report of the Ecological Society of America Committee on Scientific Basis for Ecosystem Management, 6 ECOLOGICAL USES OF R.
Lee & Jody Lawrence, Restoration under the Northwest Power Act: Adaptive Management: Learning from the Columbia River Basin Fish and Wildlife Program, 16 ENVTL. The adaptive management framework is thus more evolutionary and interdisciplinary, relying on iterative cycles of goal setting, model building, setting performance standards, monitoring outcomes, and recalibrating standards.7 3 Because it has been refined over time since Holling's initial work, the complete loop of adaptive management includes eight major steps: (1) definition of the problem, (2) determination of goals and objectives for ecosystem management, (3) determination of the ecosystem baseline, (4) development of conceptual models, (5) selection of future restoration actions, (6) implementation and management actions, (7) monitoring and response to the ecosystem, and (8) evaluation of restoration efforts and proposals for restoration measures.74 The final step, the evaluation process, is for this crucial" provides direct input to adaptive management by informing the implementation team and leading to the testing of management hypotheses, new simulations and proposals for adjustments in management experiments or the development of entirely new experiments or management strategies. However, it remains to be seen whether federal resource management agencies can translate the theoretical descriptions of adaptive management into a regime for building adaptive capacity.
ON ENDANGERED AND ENDANGERED FISHES IN THE KLAMATH RIVER STATE, NATIONAL RESEARCH COUNCIL, ENDANGERED AND ENDANGERED FISHES IN THE KLAMATH RIVER STATE: CAUSES OF DECLINES AND STRATEGIES FOR RECOVERY. However, as the next section shows, it is actually a lack of design for adaptive capacity in the law that has hindered the agencies' efforts as much as anything else.
Designing for Adaptive Law
ENVISIONING RESILIENT AND ADAPTIVE CLIMATE CHANGE
Thus, the design of climate change adaptation legislation will need to rely heavily on ecological resilience strategies and tolerate high levels of adaptive capacity. Bonan, Forests and Climate Change: Forcings, Feedbacks, and the Climate Benefits of Forests, 320 SCIENCE, which explains the complex and nonlinear interactions between forest and climate); I. Cooke, Climate Change and Risk Management: Challenges for Insurance, Adaptation and Loss Estimation 6 (Res. for the Future, Discussion Paper No.
Although the new theory of dynamic federalism has not been focused on the politics of adaptation to climate change, it matches well with the multiscalar qualities of climate change. For discussions of climate adaptation policy at the local and regional level, see generally Lara Whitely Binder, Preparing for Climate Change in the U.S. So let's compare two models of climate change adaptation law structure and process against the principles of resilience theory.
First, it gives the overall structure of governance more rather than less policy space, which will surely be needed for adaptation to climate change. Indeed, it is the only governance model that offers the United States any hope of managing the impacts of climate change. In short, to to move climate change legislation towards ecological resilience strategies, while a move underpinned by resilience theory would be no small feat in enforcement.
When climate change brings a new regime of high variability and low predictability in natural and social systems, the law must be clear. The case study of climate change offers only one opening to the kind of dialogue that might be possible for legal design using resistance theory principles. In particular, most accounts of climate change describe a non-analogue future with high variability and low predictability, suggesting that ecological resilience strategies will increase the resilience of the legal system designed to respond to it.
And whether we like it or not, climate change will provide a rich laboratory for experiments in the theory of legal system resilience.
