Fisheries Co-Management and Legal Pluralism: How an Analytical Problem Becomes an Institutional One
Jentoft, Svein, Bavinck, Maarten, Johnson, Derek S., Thomson, Kaleekal T., Human Organization
This paper addresses two issues pertaining to legal pluralism in capture fisheries, particularly with regard to the South. First there is the problem of analysis. If legal pluralism is a common phenomenon, how is it to be discerned and understood? Secondly, there is the matter of institutional design: given the pervasiveness of legal pluralism, which management institutions are better suited to represent and resolve inter-legal system differences? The authors argue the case of co-management. Drawing on examples and insights from a comparative research project in South Asia, four basic types of legal pluralism and co-management are distinguished. The authors conclude that co-management is a process that brings legal systems, and their constituent organizations and groups, together within a single framework. For fisher organizations, which frequently have distinct legal perspectives, co-management is an essential path to legitimacy. For the state, other legal systems are a resource that management can draw upon.
Key words: fisheries, legal pluralism, co-management, legitimacy, South Asia
Legal pluralism arises when different legal ideas, principles, and systems are applied to the same situation (Vanderlinden 1972). What happens in those circumstances is an intriguing issue for social inquiry that has inspired a distinct interdisciplinary research paradigm. The legal pluralism perspective draws primarily from two academic disciplines: law and social anthropology. It is nourished by empirical investigation of social interaction and culturally embedded institutions, often at the level of the local community.
Fisheries are one sector where in many countries the state has abstained from exercising authority and where no or limited fisheries legislation exists. In some instances, this is a deliberate choice based on the observation that local legal systems seem to work sufficiently well. In other instances, the state is lagging behind and has not been able to respond to new situations and needs, such as the current environmental crisis in fisheries. Both scenarios exist in India, and which, given its enormous social and cultural diversity, is well suited for legal pluralism research.
At a general level, our paper addresses two issues pertaining to legal pluralism in fisheries and coastal community settings. First, there is the problem of analysis. If legal pluralism is a common phenomenon, how is it to be discerned and understood? What are its constituent parts, and how do they relate to one another? Secondly, there is the matter of institutional design: given the pervasiveness of legal pluralism, which management institutions are better suited to represent and resolve inter-legal system differences? What are the difficulties involved in making both state and indigenous law applicable to fisheries and coastal management? And, what has co-management to offer in this respect? We argue that co-management may well provide a solution to the challenges that legal pluralism brings to the managerial decision-making process - yet there is no guarantee that co-management will succeed. In order to maximize effectiveness, co-management must be designed with legal pluralism in mind.
Drawing on examples and insights from the results of a project on legal pluralism in South Asian marine fisheries, we will reflect on the dilemmas involved in developing co-management systems when legal pluralism reigns and on the consequences and implications these dilemmas may have for the institutional modelling of co-management. We begin by presenting the essentials of the legal pluralism perspective and what it brings to fisheries resource management research and practice. Next, we address the particular analytical problems that legal pluralism poses for the social researcher and introduce a set of empirical cases. What they mean for the design and practice of fisheries co-management is discussed in the final section. …