Her Work and its Contribution to tHe tHeory and PraCtiCe of Conservation and sustainable natural resourCe ManageMent Policy Matters iuCn CoMMission on environMental, eConoMiC and soCial PoliCy issue 19 aPril 2014

POLICY MATTERS 2014: REMEMBERING ELINOR OSTROM

59

THE CONCEPTS OF CUSTOMARY LAW 

AND COMMON POOL RESOURCE 

GOVERNANCE SYSTEMS

Common pool resource (CPR) governance 

systems refer to the various models of norms 

and institutions used by communities to 

manage the use of a shared resource. The 

field of CPR governance gained popularity in 

the 1990s following the publication of Elinor 

Ostrom’s book: Governing the Commons: The 

Evolution of Institutions for Collective Action

.

5

 

Her work provided a highly insightful critique 

into the theoretical foundations of prevalent 

policy on natural resource governance, and 

motivated a reconsideration of the two-

dimensional approach to the ‘problem’ of 

limiting the governance of common pool 

resources to state or ‘market’ (through 

privatisation) solutions. 

Most of the work done in the area of CPR 

governance has been contextualized 

in economics and more specifically in 

institutional economics. However, since 

the publication of Ostrom’s book, legal 

property theorists have also demonstrated 

an interest in the conclusion she drew; 

that tragedy is not a necessary fate for all 

commons. Consequently, in legal property 

literature, there is a growing appreciation 

of successful institutional arrangements for 

the management of commons that do not 

fall within the two-dimensional framework 

of private property or state control.

6

 Despite 

reference by legal property theory to Ostrom’s 

work, its practical implications have not been 

widely researched in the context of law. This 

paper seeks to explore one such application by 

investigating the linkages between the work of 

Ostrom and colleagues on the commons, and 

customary law governance systems for natural 

resources such as water. 

Modern legal frameworks tend to associate 

customary law systems with the traditional 

norms and practices that local and indigenous 

communities have crafted/developed over 

an extended period of time. Although it is 

true that these systems are often closely 

related to long-standing activities of resource-

dependent people, customary law constitutes 

a more dynamic reality. In this paper, the term 

‘customary law systems’ refers to the norms 

and institutions whose moral authority and 

force emanates from the contemporary as 

well as traditional culture, customs, religious 

beliefs, ideas or practices of the people to 

whom it applies, rather than from the state.

7

 

Notions such as ‘community-based’, ‘informal’ 

or ‘local’ forms of governance are used 

regardless of their antiquity or association 

with tradition. In this context, customary 

law systems of resource governance are 

understood as a popular normative pattern 

reflecting the common understanding of valid 

compulsory rights and obligations relating to 

the resource. 

Customary law systems for natural resources 

governance provide an ideal opportunity 

for investigating the emerging theories on 

commons’ governance in a legal context. This 

is because most customary law systems of 

natural resource governance are based on a 

CPR governance system. In recognition of this, 

Ørebech et al (2005) have sought to explore 

the implications of commons governance 

research on customary law, suggesting a 

link between customary law and sustainable 

development.

8

 This paper contributes to 

these efforts by exploring how Ostrom’s work 

on commons can be applied to customary 

law systems for water resource governance. 

Focusing on a case study of the Marakwet 

people of western Kenya, and by applying 

Ostrom’s work to Ørebech et al’s research 

into customary law systems, I propose an 

analytical framework to help identify the 

main features of successful customary law 

systems for natural resource governance. The 

paper confirms that parallels do exist between 

the salient design principles identified by 

Ostrom and others as indicators of successful 

5 

(Ostrom 1990)

6

 (Rose 1986)

7

 This definition is adapted from that of the International Council on Human Rights Policy. See (Policy 2009) 43.

8

 (Ørebech et al. 2005)

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POLICY MATTERS 2014: REMEMBERING ELINOR OSTROM

60

commons institutions and features of resilient 

customary law systems of governance. Above 

all, it establishes that customary law systems 

that enjoy autonomy over the design of rules 

and norms, and which are open to adaptation 

and change, are more likely to result in 

positive sustainable resource governance 

outcomes. 

MARAKWET’S CUSTOMARY LAW 

SYSTEM FOR WATER GOVERNANCE

The Marakwet community of Kenya have a 

tradition of customary law and governance 

that predates colonial rule.

9

 The community’s 

customary law also forms the backbone of 

a robust water resource governance regime 

based on an irrigation system that runs along 

more than 40km of the Marakwet Escarpment 

from south of Arror to north of Tot.

10

 The 

community practices a form of hill furrow 

irrigation common in East Africa, described 

as a slope off-take irrigation system. The 

irrigation furrows of the Marakwet, which 

date back to the initial occupation of the 

community in the valley, more than 200 

hundred years ago, are the main source of 

freshwater resources both for agricultural 

and domestic use. As the country’s oldest 

customary irrigation system, the Marakwet’s 

water governance system thus provides an 

excellent case for analysis of a customary law 

system of water resource governance in Kenya. 

Methodology

The primary data used for this case is based 

on a field study conducted from November 

2010 to February 2011. A qualitative research 

methodology was used that combined various 

data collection methods, including semi-

structured interviews, three focus group 

discussions, and participant observation. The 

population sampled came from Sambalat, the 

area of Marakwet that borders West Pokot. 

The participants of the first focus group 

discussion were purposefully chosen 

from among clan council elders who are 

responsible for management of the furrows 

and thus knowledgeable on customary 

law norms and institutions for water 

governance in the community. The objective 

of the focus group discussion was to provide 

background information on the furrows, 

their management, and allow for an in-depth 

analysis of the Marakwet’s customary law 

system for water governance. 

Under this customary law system, women 

do not have a direct role in the management 

of the irrigation system. This research 

nevertheless sought to obtain the views of 

female members of the community and to 

determine the extent of their participation in 

the design and implementation of customary 

rules for water governance. A focus group 

discussion was thus organised with both 

a selection of older and younger women. 

The stratification of age groups was useful 

to determine if perspectives around the 

perceived roles of women in water governance 

had changed over time. 

Data was also collected from randomly 

selected water users with the aid of semi-

structured questionnaires. Forty-three water 

users, consisting of men and women of 

different ages and from different households, 

were interviewed. Interviews were also 

conducted with the local chief of the area, an 

official working in the Eldoret Water Services 

Company (ELDOWAS) and a representative of 

the Lake Victoria North Water Services Board 

(LVNWSB) Office in Eldoret.

The Marakwet’s Customary Law System for 

Water Governance

Among the Marakwet community, it was 

clear that customary law continues to play 

a central role in societal life. In the case of 

water resource governance, customary law 

constitutes the primary regulatory framework 

for managing shared water resources. 

Community members demonstrated a keen 

knowledge of their customary water resource 

governance system. The clan elders in charge 

9

 This is evidenced by the early accounts of the Marakwet’s law and custom. For example (Beech 1921)

10

 (Watson, Adams, and Mutiso 1998)

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