Towards adaptive property: legal design for a climate-affected future

Abstract

The 21st century poses new challenges for property law due to climate change and mass movements of people. There is emerging interest in adaptive law, which describes regulatory approaches that avoid rigid ex ante solutions to complex socio-ecological problems. The advantages of adaptive laws are said to include flexibility, risk diversification, and learning from innovation. But how can such a regime apply to property in land? Conventional formulations of property law seek stability of expectations through state-sanctioned entitlements that set out permitted and proscribed uses of resources. When, therefore, should property law allow for flexibility rather than certainty in the face of current risks such as climate change? Is there a case for re-visiting orthodox formulations of stability/flexibility trade-offs in property law to meet the challenges of environmental disruption? This chapter considers these questions as a contribution to broader debates over adaptive law for a climate-affected future.