POLICY MATTERS 2014: REMEMBERING ELINOR OSTROM
63
AN ANALYTICAL FRAMEWORK FOR
IDENTIFYING SUCCESSFUL CUSTOMARY
LAW SYSTEMS OF NATURAL RESOURCE
GOVERNANCE
Figure 1 encapsulates some of the main
contributing factors that lie behind the success
of customary law systems for natural resource
governance. Departing from the premises
put forward by Ostrom and building on
Bosselman’s work, the framework identifies
five main indicators of successful systems all
of which are dependent on users enjoying
some level of autonomy in system design and
implementation.
1. Knowledge Management System
Both Ostrom’s and Ørebech’s work point
to the need for a rational process for the
development and modification of rules in
order for any normative CPR governance
framework to work effectively. Based on
insights drawn from the Marakwet case study,
this paper recognises this crucial feature and
develops it further.
First, any successful customary system for
governing a CPR needs to have a record (oral
or written) of how the system works under
different conditions and that this knowledge
and experience ought to be institutionalised.
The term ‘knowledge management’ is used
to denote this characteristic. For purposes
of this framework, knowledge management
signifies the capacity of the normative system
to identify the insights and experiences
necessary to develop rules that result in
the sustainable governance of common
pool resources. Knowledge management
thus implies the capacity to capture the
accumulated experiences of responses to
environmental, socio-economic or other types
of change. It is this record of past experiences
that forms the basis for institutional memory
and a repository of knowledge that is
maintained for the purposes of improving the
system down the road.
An insight into the importance of this
feature was gained during fieldwork
among the Marakwet. Through focus group
discussions, the responses of water users,
and the observations of the researcher, it was
evident that an implicit system existed for
accumulating knowledge of the conditions
affecting water resources and associated
rule system. Most interview respondents
demonstrated knowledge of the origin of
the furrow system in response to prolonged
drought in the valley and of their water
rules. The rationale for the rules and their
relation to past experiences was not always
evident as respondents often associated
non-compliance of the rules with taboos
and religious sanctions. However, as noted
in the focus group discussions, clan elders
explained that the objectives of water rules
Figure 1: Framework for Analysing Successful Customary Law Systems of Water Resource Governance
Knowledge
Management System
Oral or written record of
working of system in different
conditions
Inherent
Modification
Procedure
Feedback Mechanism
Right information of current
operation
Stratification of Rules
Rule system sufficiently
stratified to allow for partial
modification
Autonomy
POLICY MATTERS 2014: REMEMBERING ELINOR OSTROM
64
were the preservation of water resources,
environmental conservation, or the socio-
economic welfare of local people.
2. Feedback Mechanism
A second feature characteristic of successful
customary law systems is the presence of a
feedback mechanism. A successful system
must have ways of ensuring that accurate
information is promptly fed back into the
system and that information then used in the
decision making process.
24
This mechanism
is dependent on the knowledge management
system, which ensures that relevant
information is captured and used to drive the
appropriate adaptation of resource rules and
institutions.
The Marakwet’s customary water governance
system provides clear evidence of this. The
flexibility of rules on water and land use point
to their adaptation to ecological conditions.
For instance, while commercial mango
farming was not a traditional practice among
the community, many women are currently
involved in growing mangoes that are proving
successful given their higher tolerance to
the increasingly dry climate. Further, some
of the respondents indicated that they are
testing the feasibility of farming green gram
commercially, along with other non-traditional
crops that require less water. The customary
law rules on farming and use of irrigation
water have consequently been adapted to
allow for commercial farming and changes in
cultivation practices.
The Marakwet case thus points to the
importance of an effective feedback
mechanism and suggests that successful
customary law systems need to include
a wider base of knowledge inputs that
encompass not only environmental change
but economic and social shifts also. As Ostrom
and Basurto (2011) note, the success of any
such system is also dependent on an enabling
environment that facilitates learning from
the success and failure of others.
25
Such an
informal social learning mechanism can be
observed in the community habits of the
Marakwet, whereby customary norms are
crafted, implemented and enforced by means
of member consultation—further aided by a
physical space, the Sambalat trading centre,
which acts as a hub for irrigation users to
share experiences.
3. Inherent Rule Modification Procedure
Bosselman developed this feature by building
upon Ostrom’s work on rules and game theory
in the context of institutional arrangements for
natural resource management.
26
It concerns
a procedure by which any given resource rule
system can be improved and thus ensure its
continued relevance in the context of changing
circumstances. It is both considered an
essential attribute of system sustainability
27
and requires the maintenance of an open-
minded attitude to rule making by those
involved—thus assuring congruence between
rules in use and local conditions.
As noted, Marakwet’s customary water
governance system, while based on traditional
norms and institutions, continues to evolve
to adapt to changing circumstances. For
instance, the incorporation of younger men
into the clan elder council responsible for
irrigation furrows is one important example
of institutional flexibility that allows for rule
modification when needed.
4. Stratification of Norms
One of the necessary conditions for designing
an effective feedback mechanism is a rule
system that is sufficiently stratified. Bosselman
refers to this feature as ‘fine graininess’,
28
and
involves rules that can be easily modified; that
partial changes can be made without having
to affect the entire system. Although this
feature guarantees the sustainability of the
rule system rather than the sustainability of
the resource system, resource sustainability is
closely associated with a resilient governance
system that exhibits institutional adaptive
24
(Bosselman 2005)
26
(Ostrom, Gardner, and Walker 1994)
27
(Ostrom and Basurto 2011)
28
(Bosselman 2005)
POLICY MATTERS 2014: REMEMBERING ELINOR OSTROM
65
capacity. A system with a great potential to
deliver sustainable development outcomes
would be useless if it were to fail in its actual
operation as a rule system—for example,
a system whose design requires an entire
overhaul each time a single rule is changed.
While most rules of the Marakwet’s water
resource governance system were broadly
defined, implementation take places through
consultation with all water users, which
subjects rules to negotiation and also allows
them to be modified with relative ease. For
instance, while there are clear rules on clan
allocation of water resources from the furrow
systems, the elders explained that these rules
could be altered to grant more water resources
to those families in greater need.
29
In other
words, discretion is sometimes used in the
application of rules, but this occurs without
having to change the major institutions that
fall under customary law.
5. Autonomy
Lastly, as was noted in the work of Ostrom
and Basurto (2011), evidence from research
on irrigation systems from different countries
around the world has clearly demonstrated
that the autonomy of resource users to design,
operate and modify rules governing the water
resources they use and depend on, ensured
better and more equitable outcomes. This
finding resonates strongly with the analysis
of the customary law system of the Marakwet,
where the community itself develops norms.
The operation and implementation of rules
is thus in the hands of resource users, with
such autonomy in rule design regarded as
inviolable.
LESSONS FROM OSTROM FOR
CUSTOMARY LAW SYSTEMS
This paper confirms the parallels that exist
between CPR governance systems and
customary law governance systems. While
the former focus on the normative structures
(rules in use) for managing shared resources,
customary law systems for natural resource
governance are interested in a similar
institutional framework albeit one where the
basis of authority rests in informal rather
than formal/statutory norms and institutions
and where the focus is the relationship that
connects actors and their environment to
those rules. Given these parallels, Ostrom’s
pioneering work on commons management
provides a set of most useful insights into the
operation of resilient customary law systems
for the governance
of common pool
resources, such
as the irrigation
system of the
Marakwet.
The centrality of
autochthony for
building resilient
customary law
systems confirms
Ostrom and
Basurto’s (2011)
observation that,
in places where
commoners enjoy
autonomy in CPR
rule design there
is an increased
likelihood for
positive outcomes.
As noted, while
the origin of
customary
law systems is
often linked to
past traditions
and customs,
the systems
themselves
must continue to evolve in response to
changing environmental and socio-economic
circumstances. Consequently, Ostrom and
Basurto’s tool for analysing ever-changing
commons governance institutions also
provides a most useful framework for the
analysis of customary law governance systems.
29
(Focus Group Discussion with Clan Elders and Representatives of Furrows Council (Marakwet District- Kenya, February 10 2010)
2010)
The centrality
of autochthony
for building
resilient
customary
law systems
confirms
Ostrom and
Basurto’s
observation
that, in
places where
commoners
enjoy autonomy
in CPR rule
design there is
an increased
likelihood
for positive
outcomes.
POLICY MATTERS 2014: REMEMBERING ELINOR OSTROM
66
As is the case with successful CPR
management systems, customary law systems
must also contain mechanisms to ensure
adaptability to changing circumstances if
they are to persist. The analysis presented
in this paper lends credence to Ostrom’s
central thesis that ‘tragedy’ is not a necessary
outcome for commons scenarios and by
extension customary law systems for natural
resource governance. As demonstrated
by the analysis of Marakwet’s customary
water governance system, autochthonous
or home grown normative and institutional
frameworks for governing CPRs, providing
they can successfully adapt in the face of
change, can produce positive and sustainable
resource outcomes.
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