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

61

of furrows explained that the origin of the 

system dates back more than two centuries. 

According to oral histories, the first four 

furrows, belonging to the Lakeno, Kapterit, 

Shaban and Kabishoi clans, were constructed 

in 1882. Construction of the furrows was 

triggered by drought in the region. Irrigation 

furrows were considered the only means by 

which to bring water from the Embobut River 

to people on the valley floor, which lies more 

than 1000m below the escarpment. 

An important feature of Marakwet’s customary 

water governance system is that it is entirely 

home grown or autochthonous, with the 

norms that underpin the system developed 

solely by the community. In the case of local 

water law, the rules governing development 

and use were designed by the clan elders, 

in consultation with the wider community, 

following construction of the furrows. This 

autonomy in design (both in terms of rules 

and their implementation) is considered 

sacrosanct. One discussant expressed the 

centrality of autonomy in the following way, 

‘There is no law that will come to tell us who 

will or how we will use the water. The water is 

for us and for our children from our elders. No 

one will tell us how to use it’.

11

Although ultimately geared towards 

conservation and sustainability of the water 

resource, the scope of their customary 

water law is relatively broad and includes 

directives on the use of land and other 

natural resources. While the rationale for 

crafting rules is often based on environmental 

indicators, the connection between rules and 

ecological conditions is not always evident. 

For instance, some of the rules and norms are 

encoded within a sacred religious system that 

include taboos and prohibitions associated 

with the felling of trees, the contamination 

of furrow water, or the requirement to plant 

indigenous trees, which are regarded as 

sacred, around rivers and streams. In the 

course of discussion with village elders, it 

was confirmed that the underlying objective 

of these rules is to conserve water resources 

and foster a sense of respect for water among 

community members.

Although the clan council in charge of 

the furrows are viewed as custodians of 

customary law on water resources, the 

design, implementation and modification 

of the rules is carried out through a broad 

consultative process. Consequently, rules 

are subject to negotiation and modification 

with relative ease. For instance, most of the 

water users interviewed talked about the 

rule that stipulates how households whose 

male members do not contribute to furrow 

maintenance and repairs are not entitled 

to water provided by the irrigation system. 

However, before this rule is implemented, 

there is a consultative process in which the 

offender is given an opportunity to present 

his case. Depending on the reason for 

default, other sanctions may be applied to 

avoid punishing the entire household, such 

as a monetary fine. Young clan members 

unavailable for furrow work due to school or 

work commitments outside of the community 

may substitute their physical labour with 

monetary compensation.

This type of rule modification can be seen as 

a response to emerging circumstances. While 

based largely on norms and practices that 

date back many years, there are still changes 

that the rule system of the Marakwet has 

undergone in recent times. For instance, the 

custodian of the customary law system was 

traditionally a group of clan elders selected on 

the basis of their age and thus knowledge and 

experience of the furrow system. However, 

recognising the value of formal education, the 

community has begun to allow some younger 

community members to join the clan council. 

While obviously lacking in experience, 

younger members are often very resourceful 

and savvy in their relations with external 

organisations and donor agencies, as well as 

holding greater knowledge of (potentially 

useful) new technologies.

11

 Focus Group Discussion with Clan Elders and Representatives of Furrows Council (Marakwet District- Kenya, February 10 2010)

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POLICY MATTERS 2014: REMEMBERING ELINOR OSTROM

62

REVISITING THE DESIGN PRINCIPLES 

OF SUSTAINABLE COMMONS 

MANAGEMENT AND THEIR 

APPLICATION TO CUSTOMARY LAW 

SYSTEMS

As noted in the introduction, Ostrom’s 

Governing the Commons illustrated how 

different communities develop rule-based 

institutional arrangements for the sustainable 

management of their shared natural 

resources. Ostrom’s analysis culminated in 

the identification of eight design principles 

that appeared characteristic of successful 

commons management regimes.

12

Salient Features of Successful CPR 

Systems and their Application to Resilient 

Customary Law Systems

One of the fundamental observations made 

by Ostrom is that appropriators who enjoy 

relative autonomy from government or 

other external actors in the design of their 

institutional arrangements are more likely to 

develop sustainable management regimes.

13

 

Such autonomy ensures that the users of the 

resource play a role not only in the design 

but also the modification of the rules that 

regulate access and use. The case studies also 

demonstrated that CPR governance systems 

with collective choice arrangements (that 

allow individuals affected by operational 

rules to participate in their modification) 

often result in positive outcomes.

14

 Apart 

from participating in rule modification, the 

users in these successful CPR systems are also 

charged with the implementation of those 

rules

15

, as supported by subsequent research 

that analysed multiple communal irrigation 

systems in Nepal.

16

 

Based on the work of Ostrom and others, 

Ørebech et al (2005) argued that adaptability 

is also an indispensable characteristic of 

success in any complex resource management 

system.

17

 Adaptability relates to the inherent 

capacity of a system not only to deal with the 

present but also continue to be relevant in the 

future. In other words, a system that has the 

capacity to adapt to changing conditions. Given 

that the social, economic and ecological factors 

that impinge upon and influence natural 

resources use and management are in a state 

of constant flux, any ideal system of resource 

management needs to be capable of adapting 

itself to such changes, whether anticipated 

or not.

18

 This is what Ostrom and Basurto 

(2011) were pointing to when stating that CPR 

governance systems, in order to be successful, 

need to have a tested capacity for adaptability 

and openness to change;

19

 typically by 

means of a normative system that exhibits 

substantial variety in its rules, with changes 

in rules driven by institutional memory as 

well as socio-economic and/or environmental 

change.

20

As a result of their genesis and nature, 

customary governance systems also tend 

towards versatility and flexibility in the 

sense that rules and institutions reflect 

the prevalent social, economic, cultural, 

political and ecological circumstances in 

which they operate.

21

 To this extent, such 

systems contain an inherent adaptive 

mechanism that makes them suitable for 

natural resource management. However, as 

noted by Bosselman, not all customary law 

systems integrate this adaptive management 

strategy effectively.

22

 A successful customary 

law system will recognise the structure of 

adaptations that it has made in the past and 

it is this that offers an effective vehicle for 

making changes to existing rules, encourages 

fine-grained rules that can be modified 

without having to modify the entire system, 

and has a meaningful feedback mechanism in 

place.

23

Bosselman’s principles of resilient customary 

law systems are comparable to the design 

principles identified by Ostrom and built upon 

by others, and the synergy that exists between 

the two will be looked at in more detail in the 

following section. 

12

 (Ostrom 1990)

13

 (Ostrom 1990), 101

14

 (Ostrom 1990), 93

15

 (Ostrom 1990), 94

16

 (Ostrom and Basurto 2011)

17

 (Bosselman 2005) 245

18

 (Ørebech et al. 2005)

19

 (Ostrom and Basurto 2011) 

20

 (Ostrom and Basurto 2011), 336

21

 See for example (Australian Law Reform 

Commission 1986) for the Australian Aborigi-

nal experience and (Pradhan 2002)409-446 for 

experience from India

22

 (Bosselman 2005)

23

 (Bosselman 2005)

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