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Crisis, Resilience, and the Time of Law

Published online by Cambridge University Press:  20 August 2019

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Abstract

The important and no longer novel insight from ecology that ecosystems are dynamic and ever-changing along immensely complex causal pathways prompts the further insight that environmental protection regimes should promote not a particular ecosystemic end state, but rather ecosystem resilience, or the capacity to absorb and adapt to stress without compromising essential function. For law to embrace resilience as an objective, it is argued, it must itself be dynamic and flexible, capable of learning and adaptation. This poses potentially serious challenges to law’s resilience: to what extent are flexibility and adaptability at odds with what Niklas Luhmann argues is an essential feature of normative systems, namely, resistance to learning in the face of disappointment? The potentially rapid rate of change expected of a law oriented to ecosystem resilience could overwhelm law’s capacity to provide the measure of order, stability, and predictability that are core to its contribution, or prestation, to society. This paper takes this challenge seriously, but also explores another possible implication of law in the pursuit of ecosystem resilience: if environmental law is no longer conceived of in primarily instrumental terms, as a means to bring about a specific set of ecosystem objectives, there may be some possibility for its own resilience to be enhanced.

Type
The Coxford Lectures
Copyright
© Canadian Journal of Law & Jurisprudence 2019

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Footnotes

An earlier version of this paper was presented at the International Environmental Law and International Legal Theory Interest Group Workshop, European Society of International Law Annual Meeting, Riga, Latvia, 2016. Financial support from the Social Sciences and Humanities Research Council is gratefully acknowledged.

References

1. John B Ruhl, “Complexity Theory as a Paradigm for the Dynamical Law-and-Society System: A Wake-up Call for Legal Reductionism and the Modern Administrative State” (1996) 45:5 Duke LJ 849; JB Ruhl, “Thinking of Environmental Law as a Complex Adaptive System: How to Clean Up the Environment by Making a Mess of Environmental Law” (1997) 34:4 Hous L Rev 933; Holling, Crawford S, Adaptive Environmental Assessment and Management (Wiley, 1978Google Scholar); Crawford S Holling, “Understanding the Complexity of Economic, Ecological, and Social Systems” (2001) 4:5 Ecosystems 390.

2. Brian Walker et al, “Resilience, Adaptability and Transformability in Social-Ecological Systems” (2004) 9:2 Ecology and Society 5.

3. Holling, Adaptive Environmental Assessment and Management, supra note 1; Ruhl, “Environmental Law”, supra note 1.

4. J Klabbers, “Possible Islands of Predictability: The Legal Thought of Hannah Arendt” (2007) 20:1 Leiden J Int’l L 1.

5. Dupuy, Jean-Pierre, Pour un catastrophisme éclairé : Quand l’impossible est certain (Seuil, 2002) at 13Google Scholar. ‘Its possibility, which does not precede its reality, will have preceded it once the reality has appeared’ [translated by author].

6. Ibid at 13.

Ibid

7. Ibid at 131. Jonas, Hans, Le principe responsabilité : Une éthique pour la civilisation technologique (Flammarion, 1995) at 33Google Scholar, 70.

Ibid

8. Ibid at 131 ff.

Ibid

9. David Demeritt, “The Construction of Global Warming and the Politics of Science” (2001) 91:2 Annals Assoc Am Geographers 307.

10. de Goede and Randalls point to a growing tendency to compare climate change to a looming military or terrorist threat: Marieke de Goede & Samuel Randalls, “Precaution, Preemption: Arts and Technologies of the Actionable Future” (2009) 27:5 Environment & Planning D, Society and Space 859. Certainly, if successful, such rhetorical strategies could lead, as Swyngedouw argues, to a depoliticisation of climate change: Erik Swyngedouw, “Apocalypse Forever? Post-Political Populism and the Spectre of Climate Change” (2010) 27:2 Theory, Culture & Society 213. However, the comparison to military security appears to involve preaching to the choir. Environmental catastrophe does not appear to galvanize the public in the same manner as the threat of terrorism or other security threats. Action on climate change certainly has large numbers of fervent supporters, but the language of catastrophe has largely failed thus far to move environmental protection from progressive to mainstream.

11. Dupuy, supra note 5 at 142. ‘The problem is that we do not believe it. We do not believe what we know’ [translated by author].

12. Teubner, Gunther, “A Constitutional Moment? The Logic of “Hitting the Bottom” in Kjaer, Poul F, Teubner, Gunther & Febbrajo, Alberto, eds, The Financial Crisis in Constitutional Perspective: The Dark Side of Functional Differentiation (Hart, 2011Google Scholar). Teubner likens the irrational, self-destructive behaviour of financial institutions in the lead-up to the financial crisis to that of self-destructive individuals: the onset of catastrophic conditions may be necessary to trigger a transformative response. Ibid at 4.

Ibid

13. Miller, Clark A, “Climate Science and the Making of a Global Political Order” in Jasanoff, Sheila, ed, States of Knowledge: The Co-production of Science and Social Order (Routledge, 2004) at 46Google Scholar.

14. Ibid at 51.

Ibid

15. Ibid at 54.

Ibid

16. Ibid.

Ibid

17. Scott Hamilton, “Action, Technology, and the Homogenization of Place: Why Climate Change Is Antithetical to Political Action” (2016) 13:1 Globalizations 62.

18. States/provinces and municipal governments particularly.

19. Kirsten Engel, “State and Local Climate Change Initiatives: What Is Motivating State and Local Governments to Address a Global Problem and What Does This Say about Federalism and Environmental Law?” (2006) 38:4 Urban Lawyer 1015.

20. Paris Agreement, 2016. Daniel Bodansky, “The Paris Climate Change Agreement: A New Hope?” (2016) 110 Am J Int’l L.

21. Carl Folke et al, “Resilience and Sustainable Development: Building Adaptive Capacity in a World of Transformations” (2002) 31:5 AMBIO: A J Human Environment 437; Ruhl, “Environmental Law”, supra note 1; JB Ruhl, “Climate Change Adaptation and the Structural Transformation of Environmental Law” (2010) 40:2 Envtl L 343; Holling, Adaptive Environmental Assessment and Management, supra note 1.

22. JB Ruhl, “Regulation by Adaptive Management – Is It Possible?” (2005) 7:1 Minn JL Sci & Tech 21 at 28.

23. Ruhl, “Environmental Law”, supra note 1 at 990-91.

24. Ibid at 990.

Ibid

25. Jonas Ebbesson, “The Rule of Law in Governance of Complex Socio-ecological Changes” (2010) 20:3 Glob Envtl Chg 414 at 416.

26. Luhmann, Niklas, A Sociological Theory of Law, 2nd ed by Albrow, Martin, translated by Elizabeth King-Utz & Martin Albrow (Routledge, 2014) at 268Google Scholar.

27. Riccardo Prandini, “The Future of Societal Constitutionalism in an Age of Acceleration” (2013) 20:2 Ind J Global Leg Stud 731 at 745.

28. Rosa, Hartmut, “Social Acceleration: Ethical and Political Consequences of a Desynchronized High-Speed Society” in Rosa, Hartmut & Scheuerman, William E, eds, High-speed Society: Social Acceleration, Power, and Modernity (Pennsylvania State University Press, 2009)Google Scholar; Luhmann, A Sociological Theory of Law, supra note 26 at 280.

29. Ibid.

Ibid

30. Rosa, supra note 28.

31. Whiteside, Kerry H, Precautionary Politics: Principle and Practice in Confronting Environmental Risk (MIT Press, 2006Google Scholar) at 90 ff.

32. Luhmann, Niklas, Ökologische Kommunikation. Kann die moderne Gesellschaft sich auf ökologische Gefährden einstellen?, 5th ed (VS Verlag, 2008Google Scholar).

33. Luhmann, Niklas, Law as a Social System (Oxford University Press, 2004) at 417Google Scholar.

34. A fairly generic formulation of the principle would oblige political authorities not to use scientific uncertainty as an excuse in the face of potential environmental risk that meets a certain threshold of seriousness and/or permanence: in other words, if a serious outcome is indicated by incomplete or inconclusive scientific understandings, it ought not to be ignored.

35. Dupuy, supra note 5 at 138; Luhmann, Niklas, Soziologie des Risikos (Walter de Gruyter, 2003) at 166Google Scholar.

36. Luhmann, Ökologische Kommunikation, supra note 32 at 118.

37. Luhmann, Law as a Social System, supra note 33 at 196 ff.

38. Klabbers, supra note 4.

39. Luhmann, A Sociological Theory of Law, supra note 26 at 273.

40. Luhmann, Law as a Social System, supra note 33 at 94; Luhmann, A Sociological Theory of Law, supra note 26 at 27.

41. Luhmann, Law as a Social System, supra note 33 at 114, 469.

42. Luhmann, Ökologische Kommunikation, supra note 32.

43. Gunther Teubner, “The Two Faces of Janus: Rethinking Legal Pluralism” (1991) 13:5 Cardozo L Rev 1443 at 1447.

44. Ebbesson, supra note 25 at 416-17.

45. Ruhl, “Regulation by Adaptive Management”, supra note 22 at 35-36.

46. Schepel, Harm, “Constituting Private Governance Regimes: Standards Bodies in American Law” in Joerges, Christian, Sand, Inger-Johanne & Teubner, Gunther, eds, Transnational Governance and Constitutionalism (Hart, 2004) at 408Google Scholar ff.

47. JB Ruhl, “Making Nuisance Ecological” (2007) 58:3 Case W Res L Rev 753.

48. JB Ruhl, “In Defense of Ecosystem Services” (2015) 32:1 Pace Envtl L Rev 306.

49. Teubner, Gunther, Law as an Autopoietic System (Blackwell, 1993) at 32Google Scholar ff. Teubner, “The Two Faces of Janus”, supra note 43 at 1446.

50. On the often insidious impact of the IPCC on climate science, see Silke Beck, “Moving beyond the Linear Model of Expertise? IPCC and the Test of Adaptation” (2011) 11:2 Regional Envtl Change 297.

51. Teubner, Law as an Autopoietic System, supra note 49 at 32 ff.

52. Arthur PJ Mol, “Environmental Governance in the Information Age: The Emergence of Informational Governance” (2006) 24:4 Environment & Planning C. Government & Policy 497; Mol, Arthur PJ, Environmental Reform in the Information Age: The Contours of Informational Governance (Cambridge University Press, 2008CrossRefGoogle Scholar).

53. An important mode of action for civil society organizations is naming and shaming.

54. E.g., eco-labelling.

55. E.g., assessment of exposure to liability for ecological damage.

56. E.g., industry standards; assessment of risks posed by process and production methods.

57. E.g., FTSE4good.

58. Personal communication, ca 2009.

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