23 Law

23.1 Earth System Law

Earth system law is a legal paradigm that aligns with, and responds to, the Earth system’s functional, spatial, and temporal complexities, including physical and societal dynamics, at the planetary scale.

While no comprehensive and representative juridical framework currently exists that embraces gov­ ernmentality concerning the Earth system let alone the dynamics of the global hydrological cycle – legal systems are important as they constitute the formal rules that underscore society’s rights and obligations, established by public legislative bodies, for shaping behaviors and establishing sanctions for violations through the judiciary.

In this context, the Earth system law paradigm provides a useful set of guidelines for institutional reform that are responsive to the normative, ethical, and regulatory challenges of the Anthropocene

23.1.1 Hydrological Cycle

Ahlstrom Abstract

The global hydrological cycle is characterized by complex interdependencies and self-regulating feedbacks that keep water in an ever-evolving state of flux at local, regional, and global levels. Increasingly, the scale of human impacts in the Anthropocene is altering the dynamics of this cycle, which presents additional challenges for water governance. “Earth system law” provides an important approach for addressing gaps in governance that arise from the mismatch between the global hydrological cycle and dispersed regulatory architecture across institutions and geographic regions. In this article, we articulate the potential for Earth system law to account for core hydrological problems that complicate water governance, including delay, redistribution, intertwinements, permanence, and scale. Through merging concepts from Earth system law with existing policy and legal principles, we frame an approach for addressing hydrological problems in the Anthropocene and strengthening institutional fit between established governance systems and the global hydrological cycle. We discuss how such an approach can be applied, and the challenges and implications for governing water as a cycle and complex social-hydrological system, both in research and practice.

Ahlstrom Memo

A key challenge to water governance in the Anthropocene is improving institutional fit for addressing the global roots of core hydrological problems, while preserving gains in representation, institutional power, and other successes that have accompanied recent governance reforms.

Earth system law provides a valuable framing for addressing uncertainty that recognizes the multi-level and inter­ connected characteristics of hydrological flows and the polycentric governance structures that have evolved to manage water resources at multiple scales.

The global hydrological cycle is characterized by complex in­ terdependencies and self-regulating feedbacks that keep water in an ever-evolving state of flux at local, regional, and global levels. Increas­ ingly, the scale of human impacts in the Anthropocene is altering the dynamics of this cycle, and legal regimes for governing water are not presently able to address these challenges effectively. Drawing on research of complex social-hydrological systems, we illustrate the pressing need to integrate scientific understanding of the global hy­ drological cycle from the physical sciences with insights from the broad environmental governance and legal scholarship. We argue that there is not only a need to address “institutional fit” between global hydrological processes and legal and regulatory systems, but that this disconnect – and the consequences thereof – is deeply rooted in the Anthropocene. New modes of thinking are therefore required to develop solutions for governing water as a cycle and integrated social-hydrological system.

Ahlstrom (2021) Earth system law social-hydrological systems [(pdf)](pdf/Ahlstrom_2021_Earth_system_law_social-hydrological_systems.pdf