ABSTRACT

This chapter examines the jurisprudence and legal theory of adaptive management and law, or adaptive governance and adaptive law. It studies them in the context established in risk regulation research, where similar questions have been addressed and also solved in past decades. Thereon, the study moves on to the discourse over premise facts or fact premise, or the frailties of logical syllogism explaining judicial decision-making and judicial review of environmental law, offering limited value in solving the challenges adaptive management poses. Discussion over the role of facts and fact-finding proves to be less fruitful because of the continuum of normativity established with the transnational water governance tool in the limelight here, the EU Water Framework Directive (WFD). The ontology of law and ecology are covered to assess whether the differing ontologies could be reconciled; it is found that the ontological differences often systematically hamper the efforts of reaching compatibility. A critique is presented of transparency as a panacea to the challenges of access to justice and the rule of law explained in the book’s earlier chapters; the applicability of straightforward in dubio pro natura argumentation is also given critical consideration. Finally, the chapter sums up by explaining the critique of scientism at the root of the scientific endeavour of the whole volume. Mathematical modelling can never reach the desired level of accuracy and predictability that the most ardent reading of the rule of law might require. This is suggested as the starting point of the search for the next steps.