SLS Scholarly Articles

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Browsing SLS Scholarly Articles by Subject "Customary law systems"

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    Customary law systems for water governance in Kenya
    (Edward Elgar Publishing, 2015-07-31) Gachenga, Elizabeth
    In many jurisdictions including Kenya, the term ‘law’ is generally assumed to refer to enacted rules emanating from the state. Consequently, legal systems for water resource governance are considered largely as consisting of statutory law – rules enacted by state organs. Nonetheless, in many countries aspects of water resource management, particularly at the local level, include systems of rules that are beyond the scope of statutory frameworks, with local users developing informal norms and institutions to govern their water resources. This chapter uses the term ‘customary law’ to refer to these informal/ non-statutory normative and institutional frameworks. Customary law systems for natural resource governance continue to exist in many countries. The resilience of customary water governance regimes has led water law practitioners and researchers in the last two decades to acknowledge that these regimes constitute a factor to be reckoned with when preparing ‘modern’ legislation for water resource governance. Research has demonstrated that in some cases, their resilience is the result of an inherent adaptive capacity that makes customary law systems more sustainable than state developed systems. Further, as these customary governance forms are self-developed, they represent a more democratic process of development of law and thus are more likely to be successful at achieving sustainability.
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    Governing the commons through customary law systems of water governance
    (CEESP and IUCN, 2014) Gachenga, Elizabeth
    The resilience of customary law systems of natural resource governance in many parts of the world lends credence to Ostrom’s theory on the governance of commons. Ostrom argued that resource users who enjoy relative autonomy in the design of rules for governing and managing common-pool resources, frequently achieve better economic (as well as more equitable) outcomes than when experts do this for them.2 In support of this theory and acknowledging that most common pool resource governance regimes are based on a customary law system, Bosselman has sought to demonstrate a link between customary law systems and positive outcomes for sustainable development.3 Using a case study of the customary law system of water governance of the Marakwet community of Kenya, this paper tests and builds on the design principles and tools developed by Ostrom, to study normative institutions in a dynamic environment.4 The paper proposes an analytical framework that helps identify the features that strengthen customary institutions and ensure their adaptability and resource sustainability. This exercise illustrates the parallels between commons governance and customary law governance of natural resources.