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Designing Law to Enable Adaptive Governance of Modern Wicked Problems

Posted by on Tuesday, December 22, 2020 in Articles, Volume 73, Volume 73, Number 6.

Barbara A. Cosens, J.B. Ruhl, Niko Soininen & Lance Gunderson | 73 Vand. L. Rev. 1687 (2020) | 

In the twenty-first century, our planet is facing a period of rapid and fundamental change resulting from human domination so extensive it is expected to be visible in the geologic record. The accelerating rate of change compounds the global social-ecological challenges already deemed “wicked” due to conflicting goals and scientific uncertainty. Understanding how connected natural and human systems respond to change is essential to understanding the governance required to navigate these modern wicked problems. This Article views change through the lens of complexity and resilience theories to inform the challenges of governance in a world dominated by such massive and relentless disruption.

The new theories of governance discussed in this Article have been developed through empirical observation of emerging governance innovation to fill governance gaps that have opened with the increasing complexity of society. Among them, adaptive governance has been described as emerging in environmental governance and described in the resilience literature as a promising means to manage modern wicked problems. Adaptive governance is observed to emerge, and does so, in situations of conflict with high uncertainty in environmental management outcomes.

This Article contributes to the development of adaptive governance theory by articulating and situating the role of formal law and government as the facilitator, but not central controller, of adaptive governance. To advance the understanding of adaptive governance, we argue that it can be understood in the broader context of scholarship covering the observed emergence of new governance, the efforts to develop theoretical understandings through decentered theory, and the refinement of constitutional understanding through democratic experimentalism. Synthesis of these three themes in turn informs the role of law and government in working with emergent governance responses to complexity to manage change and wicked problems. This inter- and transdisciplinary exercise reveals that the role of law and government in adaptive governance is to leave space for local innovation and private governance. Law and government must provide the catalyzation, facilitation, steering, and oversight essential for public and private institutions to respond at the rate and complexity of change in large-scale social-ecological systems, and they must do so while advancing good governance.

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Barbara A. Cosens, J.B. Ruhl, Niko Soininen and Lance Gunderson