Learning for resilience in the European Court of Human Rights: adjudication as an adaptive governance practice
Summary
Managing for social-ecological resilience requires ongoing learning. In the context of nonlinear dynamics, surprise, and uncertainty, resilience scholars have proposed adaptive management, in which policies and management actions are treated as experiments, as one way of encouraging learning. However, the implementation of adaptive management has been problematic. The legal system has been identified as an impediment to adaptive management, with its apparent prioritization of certainty over flexibility, emphasis on checks and balances, protection of individual rights over public interests, and its search for “transcendent justice” over “contingent truth.”
However, although adaptive management may encourage learning for ecological resilience, it is only one aspect of the institutional change needed to foster learning for social-ecological resilience. The mechanisms, including law, that provide for pursuit and protection of evolving ideas of justice and equity are critical for guiding human understanding of and interaction with the material environment. A broader agenda for learning within and about social-ecological resilience that focuses on the interaction between ideas of justice and equity with ecosystem dynamics is captured in the concept of adaptive governance.
We have built on recent literature that has elaborated on the role of law in governance of social-ecological systems by analyzing environmental cases in the European Court of Human Rights (ECtHR). We find that the ECtHR contributes to adaptive governance by supporting multiple ways of knowing the environment, enhancing polycentricity, and encouraging adaptive management and policy making by member states in the context of public participation. We have argued that the environmental case law of the ECtHR constitutes an important site of learning for governance of social-ecological systems, because it situates knowledge and experience of environmental change in the context of discussions about the relative rights, duties, and responsibilities of social actors, facilitating the mutually adaptive evolution of truth and justice across scales.
