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Human Organization, Vol. 68, No. 1, 2009Copyright © 2009 by the Society for Applied Anthropology0018-7259/09/010027-12$1.70/1

Introduction

Legal pluralism arises when different legal ideas, principles, and systems are applied to the same situ-ation (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

Fisheries Co-management and Legal Pluralism: How an analytical Problem

Becomes an institutional OneSvein Jentoft, Maarten Bavinck, Derek S. Johnson, and Kaleekal T. Thomson

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

Svein Jentoft is with the Centre for Marine Resource Management (MA-REMA), Norwegian College of Fishery Science, University of Tromsø, Norway; Maarten Bavinck is with the Centre for Maritime Research (MARE), University of Amsterdam, The Netherlands; Derek S. Johnson is with the Department of Anthropology, University of Manitoba, Canada, and Centre for Maritime Research (MARE), University of Amsterdam, The Netherlands; and Kaleekal T. Thomson is with Cochin University of Science and Technology, Kerala, India. This paper was originally presented at the XVth International Congress on Legal Pluralism in Depok, West Java, Indonesia, June 29-July 2, 2006. The authors thank the Indo-Dutch Programme on Alternatives in Development (IDPAD) for research funding (5.2.110). We are grateful for the critical comments made by three anonymous reviewers on an earlier draft.

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 per-taining to legal pluralism in fisheries and coastal community settings. First, there is the problem of analysis. If legal plural-ism 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 insti-tutional design: given the pervasiveness of legal pluralism, which management institutions are better suited to represent and resolve inter-legal system differences? What are the dif-ficulties 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 fisher-ies, we will reflect on the dilemmas involved in developing

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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 prob-lems 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.

Legal Pluralism in Perspective

Fisheries and coastal managers typically assume that in the absence of state interference, no regulation occurs and that, consequently, chaos is inevitable. The end result is a tragedy of the commons. After decades of empirical social research into the ways local fishing communities and user-groups operate, however, we know that state absence does not necessarily signal disarray (McCay and Acheson 1987; Ostrom 1993).1 Communities and user-groups often initiate their own regulatory systems. In numerous instances, state interference has proven to do more harm than good by un-dermining the capacity of communities to manage their own affairs (Anderson 1987; Pinkerton 1987).

Consequently, the assumption may be reversed: in the absence of state intervention, the community frequently fills the gap. Local people do not sit still when the natural resource on which their livelihoods depend is threatened or their community is harmed. Instead, they develop their own legal systems in order to avoid such negative consequences. Thus, legal pluralism assumes that the state is not the only legislator, that law is not unique to state societies, but that there exists “folk law” or “traditional law” in the absence of or in addition to state law. Furthermore, legal pluralism points out that state law often ignores, obscures, or marginalizes folk law. The potential exists for different rules to apply in the same situation and, therefore, to be redundant or in conflict (Bavinck 2005:811). This situation causes confusion for those who have to abide by them. Which rules takes precedence, those of the state or those of the community?

Legal pluralism scholars differ with regard to the defi-nition of law or legal system. Whereas some authors regard law primarily as a normative order (Benda-Beckmann 1997; Dworkin 1977; Vanderlinden 1972), others emphasize the connection with organizing entities or authorities (Bavinck 2001a, 2005; Pospisil 1971). The latter approach is rooted in the writings of Max Weber, who argued that “an order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, will be applied by a staff of people holding themselves specially ready for that purpose” (Rheinstein 1954:5, emphasis in the original). Law, then, in this view, is a combination of norms and authorities. The legal system is composed of a set of rules and institutional mechanisms (such as a court system) to ensure that rules

are abided by. This perspective on legal pluralism, which includes varying normative orders and structures of decision-making, implementation, and adjudication, has informed the Indo-Dutch Program on Alternatives in Development project reported on in section 4 below. It assumes that authorities of different kinds (public and private) and at different scales are involved in the creation and maintenance of each legal system and in the interactions that occur between systems.

Law, in this broad sense of the term, is a fiber running through society in its various dimensions. Franz von Benda-Beckmann (2001) holds that folk law can be found in action, in customary social practice, and in the knowledge of people. Since few social systems exist in complete isolation from each other, in every society there exists a multiplicity of legal orders that individuals must relate to. If these orders are at variance, individuals have space for maneuver.

Vanderlinden (1989) contends that because of legal pluralism, the individual becomes a legal “battlefield:” when legal orders compete, the individual is the “converging point” where legal conflicts must be sorted out. F. Benda-Beckmann (2001:121-122) suggests that the community can be a “battle-field” as well, as the individual is not left to choose alone, but is guided by community strictures:

In Indonesian villages, the law that constitutes people’s normative environment is largely village specific. It is embodied in the village’s political and economic constitu-tions, which vary considerably. It is primarily these village specific legal forms in which people have been socialized, which form the enabling and constraining normative en-vironment in which they act and which they draw upon in the rationalization and justification of their interpretations and decisions in everyday and problematic situations.

If the individual was the only “battlefield” for legal conflict resolution, responses to fisheries and coastal management systems would be largely unpredictable unless you knew what was in the hearts and minds of each individual. But since people tend to draw their interpretations and rationalizations from their social surroundings, and thus develop routines and customs that are particular to their situation, the answer needs to be sought within the social relations that form them. This makes prediction with regard to rule compliance or evasion more of a sociological than a psychological issue. One would need to know what the village codes are and how they are lived out in the everyday life among villagers. “Thus, instead of looking at the legal pyramid from the top, from the centers of decision, from the standpoint of power, one is brought to contemplate it at the level of ordinary men in their daily activities” (Vanderlinden 1989:153).

Folk law is often elusive. As Vanderlinden (1989:151) points out, “Regulatory orders, and among them legal orders, are always in a dynamic competitive relationship with each other, although this is often latent and not immediately ap-parent to the outside observer.” Some rules may be latent; you only know what they are when you break them and are sanctioned accordingly. Sometimes rules are dormant; they

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are rarely activated. Legal pluralism brings another problem: when codes are in conflict, as when state and community law differ, you risk breaking one rule while adhering to another one. One may even assume that there will be rules about how to choose among rules.

If plural legal systems should pose problems for the in-dividual resource user, they are no less tricky from a research point of view. There may be no law book to look up, no au-thority to consult, or no practice to observe from which legal rules can be inferred. Codes may even be deliberately hidden when they belong to subgroups such as secret societies.

The role of the social researcher could be to make legislators and managers sensitive to the concept of legal pluralism, and to how legal pluralism works in concrete set-tings. Folk law, we must assume, although affected by power differentials in the local community, does reflect a practical reason drawn from and adapted to the particular ecological and sociocultural conditions of the setting in which a legal system is intended to work. It is typically built on experi-ences of having to resolve real conflicts among real people in real situations:

To take it seriously means to acknowledge that it [i.e., non-state law] is there, that it affects people’s behavior, and that it also affects the way legislation is implemented. It allows for a better understanding of what is going on, of why in so many cases legislation is not having the effects it is expected to have. (K. Benda-Beckmann 2001:33)

But to take legal pluralism seriously, Keebet von Benda-Beckmann (2001:33) also holds, “is not the same as endorsing every rule, or even any rule at all….” One should work from no preconceived evaluation of any kind of law, whether state or local law. Rather, one should “challenge the exclusiveness and self-evidence of any single normative system” (F. Benda-Beckmann 2001:124).

It goes without saying that this must be the perspective of fisheries co-management. Co-management may be built on local law, but should not uncritically support it. Deliberately or not, co-management takes a stand on legal matters, on which and whose norms and rules it should adopt and which ones should be ignored or discarded. It would be fair to assess which among the repertoire of rules work more effectively than others, which are more socially just, which ones are more in accordance with prevailing perceptions of rights. The issue of power comes in here as well (Jentoft 2007). Law is power, but not often necessarily “people power.” Law is often of and for the privileged few. This is a possibility that applies to any law, whether we are talking about state or folk law.

Therefore, the challenge of fisheries and coastal manage-ment is not only methodological, i.e., how to find out about laws, it is also about valuation and about deciding which measuring rod to apply. Valuation is not a neutral exercise but one that evokes ethical and political concerns and views. This makes fisheries and coastal management systems into “legal battlefields” in their own right. They must be con-structed so that legal differences can be sorted out in a way

that is constructive, legitimate, and socially just. Thus, legal pluralism, when referring not only to the rules as such but to the institutional authority that backs them up as well, raises organizational concerns. In what follows, we will have more to say on what these concerns are.

Fisheries and Coastal Management as aLegal Battlefield

According to the legal pluralism perspective, conflicts are about more than interests alone; they connect to dimen-sions such as law, culture, and social organization (Bavinck 2005:806). In other words, some conflicts crop up as stake-holders abide by and represent different legal systems, such as those related to resource tenure. Thus, it is not only dis-tributive issues that confront fisheries and coastal managers. Managers must also address conflicts that occur because the activities of fish harvesters and other stakeholders are gov-erned by norms and rules that are particular to specific social systems within the area where they operate.

Legal pluralism makes observers and participants sensi-tive to the possibility of substantial legal differences between the parties involved in a conflict (Bavinck 2005). A legal pluralist perspective highlights what these differences are, and how fisheries and coastal management can both release latent conflicts and enable their mitigation. Legal conflicts may be closely related to distributive conflicts. Legal con-flicts may be dormant until they are triggered when interests collide, as when users start operating within the same space or targeting the same species. Then, distributional conflicts bring on legal conflicts, for instance when users cannot agree on which rule to apply. Distributional conflicts provide an incentive for sorting out legal differences. Indeed, in many instances it is distributional conflicts that led to the develop-ment of a legal system. If groups agree on the basic concerns and principles, distributive issues as well as legal differences would be easier to handle.

Legal pluralism adds complexity to the management process. The stronger the pluralism, the greater the informa-tion problem, the greater the problems of enforcement, and the more likely the violation of rules. This is particularly the case in those situations where there are as many legal systems as there are communities (F. Benda-Beckmann 2001). Should fishers, for instance, migrate seasonally from place to place, they would find themselves moving in and out of jurisdic-tions and must hence be “multilegal.” They have to possess sufficient knowledge of multiple legal systems and be able and willing to adapt accordingly. Since ex ante information is likely to be a problem, the risk of involuntarily breaking rules would be high. Thus, legal pluralism puts heavy demand on the conflict resolution capacity of management systems. Management systems are confronted with the challenge of how to balance sensitivity to legal pluralism and the need for simplicity and transparency.

As legal codes often reflect deeper moral concerns and values within a particular social group or society, or indeed

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are constitutive of that group or society, attempts to smooth out or ignore legal differences are frequently experienced as violations of basic cultural rights and therefore opposed. Conflicts then have to be negotiated, brokered, or litigated between involved parties, with managers as facilitators and mediators. If consensus cannot be reached, some compromise may be established and, if not compromise, then perhaps peaceful co-existence. In any case, fisheries and coastal management will end up practicing hybrid, sub-divided, compartmentalized, and incongruent law.

However, since legal systems are never closed but permeable and dynamic, legal differences might be sorted out and synthesized gradually over time. The management system is where these differences all come together. Indeed, what Vanderlinden (1989:151) holds about the individual can be said about the fisheries and coastal management: the management system becomes “the converging point of the multiple regulatory orders which each social network neces-sarily includes….”

Managers must overcome the problem that regulatory orders are often tacit, difficult to pin down, and hard to com-prehend. As Vanderlinden (1989:151) states, regulatory orders, “and among them legal orders, are always in a dynamic com-petitive relationship to each other, although this is often latent and not immediately apparent to the outside observer.”

Here a methodological issue becomes an institutional one: How is it possible to ensure that legal knowledge is shared across legal systems? Co-management may offer the beginning of a solution as it brings user and stakeholder groups together. Still it may not always adequately address the legal pluralism that stakeholders bring to the management process. Whether it does or not depends on the particular design of the co-management system. From our perspective, it is the legal pluralist perspective that makes the difference. Thus, for co-management to be adequately sensitive to, and operationally reflect the legal pluralism which exists within its domain, it must be structured so that the legal differences are brought to the table and dealt with accordingly. Since individual users or stakeholders are rarely members of all relevant groups and networks, representation cannot be done randomly. It must be stratified so that all the relevant groups or networks are represented. For that to happen, co-managers must ask who these stakeholders are, and then identify which legal codes and norms they adhere to. Those rules that are in conflict would need special attention as they cannot simply be added to each other; they must be amalgamated.

For this, co-management must institute an interactive process through which stakeholders are able to validate the content, meaning, reason, and implication of the different legal codes, whether or not they fit with the fundamental moral principles they subscribe to, and to what extent stakeholder groups can find common ground or agree to disagree. Again, this may be overly optimistic, as it presupposes something equivalent to the “ideal speech situation” that Habermas (1987) talks about. Co-management needs to be able to handle less than ideal circumstances and withstand the pressure of

unresolved and ongoing conflict. Stakeholder groups not only represent different legal systems, they also possess unequal powers, for instance due to their privileged representation in the co-management regime or because of exclusively held rights. This means that some groups are capable of making their views more forcibly than others, in some instances even to the extent that they can be said to control the manage-ment system. In the context of legal pluralism, Vanderlinden (1989:151) points out that “every social network attempts to acquire (in most cases at the expense of others) a maximum of control over those it takes to belong to it. In that sense, every network has a natural tendency toward internal totalitarianism and external autonomy from other networks.” For co-manage-ment systems to be effective, they must know how to handle such risks by establishing checks and balances, for instance in terms of constitutive and operational rules that serve to counteract the tendency for powerful groups to commandeer the system and make it work in their particular interest. If not, users and stakeholders who lose out in the process are likely to chose exit strategies, abandon the partnership, build other coalitions to promote their interests, or go solo.

The legitimacy of co-management hinges upon its ability to approach law “at the level of the individual having a prob-lem to solve rather than at that of the abstract formulation of an ideal order in conformity with the intention of a legislator” (Vanderlinden 1989:155). As it involves stakeholder networks and groups, some of which may be formal organizations, the co-management organization becomes the node of a larger network that it itself forms. To again use Vanderlinden’s (1989:151) words, co-management turns into a “converging point of multiple regulatory orders.” The different participat-ing stakeholder networks arguably perform the same function and, if co-management is designed to promote it, will sort out legal conflicts on their own, while intergroup conflicts will be left for the co-management organization’s management board. Rules for how to proceed would have to be an integral part of the co-management institutional design. Should negotia-tions come to a halt, there must be rules on what to do next, such as procedures for renewing negotiations, for voting, and for appeal. The tacit knowledge of norms and rules would not have to be discerned and documented ex ante, as users and stakeholder groups—or those members who represent them—would bring them along. Tacit knowledge would be invoked on demand, when needed in the decision-making process, and if not through voice, then by vote. Indeed, this is how democracy usually works, and co-management should work in a similar fashion. Tacit values and knowledge are expressed at the ballot box by those who hold them and are voiced in the process leading up to it.

The IDPAD Project2

The Indo-Dutch Programme on Alternatives in Devel-opment (IDPAD) entitled “Co-operation in a Context of Crisis: Public-Private Management of Marine Fisheries in South Asia” was led by the Centre for Maritime Research

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(MARE), Amsterdam University in collaboration with the Cochin University of Science and Technology between 2003 and 2006. With the growing fisheries crisis in South Asia as the backdrop, the IDPAD project set out to map the patterns of co-management using a legal pluralism framework in six locations in India and Sri Lanka, as they relate to effective-ness of resource allocation and maintenance of resource health in fishing. District case studies were carried out with the aim of providing lessons that can support attempts to bring greater emphasis on co-management into fisheries policy in the region. The team leaders of three of the six case studies of the project report on their work in this paper, while the first author, Jentoft, was on the advisory board for the project. The advisory board assisted in refining the theoretical and methodological approaches of the project. The theoretical assumptions under-pinning the project and specified in the Research Handbook developed for this project, are familiar legal pluralism theory, as explained in previous sections of this paper.

At the heart of the research is the idea that multiple State and non-State groups are involved in managing fisher-ies. Each of these groups issues, or is guided by, certain implicit or explicit sets of rules in its relation to fishers and fisheries resources. In the district-level research, we wish to identify the groups involved in the fishery, iden-tify the fisheries management-oriented sets of rules that guide them, and articulate the gaps in those rule sets, and their interactions, in relation to access rights and resource health. (Johnson 2004:3)

Thus, the particular legal patterns regulating fishing practice are at the core of the project, which were aimed to describe and explain different legal configurations and interactions that occur within a sample of fishing districts. By discern-ing which rules and authorities operate within particular technological, ecological, and social and cultural contexts, the project aims to make judgments about the comparative effectiveness of different legal patterns in different parts of South Asia. The overall hypothesis, drawn from the project’s Research Handbook reads as follows:

Our research is guided by the supposition that improv-ing the process of interaction within the legal pattern will improve effectiveness of resource allocation and management. Improving is here the key normative term. Improving interaction means enhancing recognition by all stakeholder groups of each other, strengthening institu-tions for communication between stakeholder groups, and harmonizing rules. (Johnson 2004:8)

The project initiators (Bavinck and Johnson) recognized from the start that the project faced a major methodological challenge in its need to ensure that the six team leaders in their highly diverse districts undertake research strategies that would result in comparable data. The challenge was height-ened by the disciplinary mix of the participant researchers: three anthropologists (Gujarat, Goa, and Andhra Pradesh), a geographer (Tamil Nadu), and two economists (Kerala and Hambantota). The strategy adopted was to build regular

group meetings into the project work plan, starting with an inaugural project planning workshop in Cochin in January 2004. The outcome of that first meeting was a conceptual framework that all district team leaders agreed to use as a guide for their research strategies. By gathering data on all of the variables in the conceptual framework, it was intended that the different research teams would be able to engage in grounded comparison at the end of the project.

It became clear as the project unfolded that for a variety of time, resource, and other constraints the district studies were proceeding in somewhat different directions. While the ideal agreed upon in project meetings was for a robust mix of secondary, qualitative, and survey techniques, not all districts were covered in consistent depth across the methods. In the light of these discrepancies, in later project meetings it was agreed that comparisons among districts would be indicative rather than definitive but that, despite this, extremely interest-ing contrasts were evident from the research.

In the following section, we discuss three patterns of interaction, as they emerged from the research project. They are organized along two axes. The first axis refers to legal pluralism and the second axis to co-management. Both vari-ables have two values: strong and weak. We argue in this paper that legal pluralism is strong where state formation is fairly recent, as in ex-colonies, and in societies where the state is feeble or has refrained from intervention.3 Co-management is weak when there is an absolute lack of structured interaction between legal systems. Similarly, it is strong when legal sys-tems are harnessed to act in tandem towards a mutual goal.

We have characterized the resulting legal patterns—the content of the four cells in the table—as ideal types in the Weberian sense: they “serve as guides in a filing system” (Rheinstein 1954:xxxviii). The ideal type labels that we have chosen are not discreet; rather they are dominant tendencies, and each case contains elements of the others. The first ideal type is called “implicit co-management,” and is illustrated by a case from the state of Tamil Nadu, India. Here, the relations that exist between legal systems are deliberately kept infor-mal. The second type, termed “defective co-management” is exemplified by a case from Gujarat. The main defects here follow from authorities’ limited interest and involvement in the process of fisheries management. The third is “politicized co-management.” In this ideal type, the relations between legal systems in fisheries are affected by strong interventions from the political environment. The fourth cell remains empty, for reasons discussed below.

Case Studies

The following three case studies derive from India and exemplify different “states” of legal pluralism and co-management in capture fisheries. Table 1 presents a typology of the three cases.

We argue that all three cases have gone through a similar process of fisheries modernization, called the Blue Revolu-tion, which commenced in the 1950s and continued well into

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the 1980s (Bavinck and Johnson 2008). The Blue Revolution was a government-induced effort to develop fisheries in ac-cordance with assumed resource availabilities and involved the introduction of efficient fishing technologies in order to increase production. Law was one of the instruments used to impel change. The nature of the fisheries that were already in place in the different states of India, however, determined what happened to sector management. Where a strong fisher-ies sector was present prior to the Blue Revolution, a situa-tion of strong legal pluralism soon evolved. This contributed later to the development of various kinds of co-management arrangements. Where fisheries possessed a shallow history, however, such as in Gujarat, legal pluralism remained nascent or weak. Co-management arrangements in Gujarat have consequently barely emerged.

The fourth cell of the table is empty. We claim that this is necessarily so, as co-management in South Asia has tended to emerge mainly on the basis of strong versions of legal pluralism. We also distinguish situations of weak and strong co-management, and contrast Tamil Nadu and Kerala. The explanation of the difference between these two cases is sought in variations of fisher organization-building, as well as in different styles of government.

Weak Co-management in Ramnad District, Tamil Nadu

Tamil Nadu is one of the Indian states that already boast-

ed a strong and sizeable artisanal fishing sector prior to the Blue Revolution. The artisanal sector was divided over three fishing regions—the Coromandel Coast, the Palk Bay, and the Gulf of Mannar. Having largely been left to themselves, the fishing population of the state had evolved a distinct legal system governing fisheries practice over the ages. This legal system hinged on the institution of panchayat4 (village councils) (Bavinck 2001a, 2001b). These are not connected to the system of government administration. Village law, thus, provided for territorial use rights and emphasized the regulation of fishing technology. While technical innovation was generally encouraged, village councils regularly banned the use of harm-ful technology for ecological or for social reasons (cf. Bavinck and Karunaharan 2006a; Bavinck 1996, 1998, 2001a).

The Blue Revolution brought about a new fisheries sec-tor in Tamil Nadu, based on trawling. Trawler fishers were concentrated in harbor towns and soon created professional organizations, which fashioned their own versions of fishing law. These associations established daily courts, delivering justice on disputes that took place with regard to trawler fishing, espousing principles at variance with panchayat practice. Thus, while aiming primarily at technological development, the Blue Revolution sowed the seeds of legal pluralism, which became more intricate again with the emergence of state fisheries law.

Although a part of Tamil Nadu is subject to the same developments mentioned above, Ramnad District possesses special features. The district is situated midway along Tamil Nadu’s shoreline, bridging the Palk Bay and the Gulf of Man-nar. It is an area otherwise known mainly for drought and rain-fed agriculture. The fishing population, which counted 30,304 in 1957 (Chacko, George, and Krishnaswamy 1957), had increased to 105,464 in 2005 (Bavinck and Karunaharan 2006b:11), due in part to substantial immigration into fishing. This population inhabits 141 settlements of mixed composi-tion. The interspersal of Christian, Muslim, and Hindu fish-ing populations of varying castes and origins is one of the defining characteristics of Ramnad fisheries. Research shows that this heterogeneity has affected the strength of panchayat law in artisanal fishing (Bavinck and Karunaharan 2006b). It has also contributed to the fragmentation of trawler fisher populations, and of their professional organizations. All in all, fisher law is less effective in Ramnad District than it is in other parts of coastal Tamil Nadu.

The proximity to Sri Lanka is another defining charac-teristic of Ramnad District. This has given the area a reputa-tion for smuggling and, more recently, for violent clashes involving vessels from Tamil Nadu fishing in Sri Lanka waters. These vessels are regularly pursued by the Sri Lankan navy, the sea wing of the Tamil Tiger guerilla movement or, by extension, the Indian navy. The enduring civil war in Sri Lanka, and the tendency of the Indian trawler fleet to search out under-fished grounds, has cause the central government of India to base a substantial control system in Ramnad. Al-though the Fisheries Department is the main governmental agency regulating fishing, the security interests in Ramnad have reinforced the state’s potential for exerting real control.

Table 1. States of Legal Pluralism and Co-Management in IndiaTable 1. States of Legal Pluralism and Co-Management in India

State of Legal Pluralism

Weak Strong

State of Co- Weak Gujarat Tamil Nadu

Management [Junagadh District] [Ramnad District]

Strong XX Kerala

[Ernakulam District]

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Compared to other parts of Tamil Nadu, therefore, the state legal system is more powerful and effective in Ramnad.

The Tamil Nadu Marine Fishing Regulation Act of 1983 was devised to contain the conflict between trawler and arti-sanal fishers, which spread all along the coastline. It had little effect, however, as the measures it introduced were difficult to implement, and the feuding parties did not support them sufficiently. It was only when the government, via a system of implicit co-management, started involving the fishing industry in devising agreements suited to the circumstances in the various regions, that a measure of effectiveness was attained (Bavinck 2003).

In Ramnad District, the main agreement is about time-zoning. As in the other districts of Palk Bay, following a series of debilitating conflicts, the trawler fisher associations of Ramnad agreed with artisanal fishing organizations and local government authorities to a system whereby trawlers would fish three days a week, leaving four days to artisanal fishers. This measure is enforced through a tightly controlled system of tokens, passes, and identity cards, implemented by the Fisheries Department, but with the tacit support from the central government agencies mentioned above. The system would not work, however, without receiving endorsement from the fishing industry. This is monitored partly through a system of monthly meetings, in which the District Collector (the chief administrator) gathers with representatives of the fishing industry to discuss current affairs.

We conclude that a situation of legal pluralism in Ramnad District has evolved towards a form of co-management, where-by the various parties—focusing on core issues—coordinate their regulatory activities. This act of coordination—it must be emphasized—has emerged only after significant conflict and power struggle. Co-management is still incomplete, however. There are many issues about which the parties still fundamentally disagree. Moreover, although state agencies informally involve fisher parties in their decision-making, their role is not formally defined. In other words, there is no explicit structure of co-management in place. Whatever co-management occurs is informal in nature.

Defective Co-management in Junagadh District, Gujarat

The fishery of Junagadh District presents a challenging case for the integration of legal pluralism and co-management. At present, both concepts are solely present in the eye of the observer but in no explicit way inform management practice in the district. From an outsider’s perspective, legal plural-ism is a ground reality in the district, as community and state legal systems coexist. In the area of fisheries management, however, this legal pluralism is weak for two reasons. First, the state and non-state institutional basis for marine resource regulation in Junagadh is poor. Second, co-management as an idea has no purchase in the district, and, thus, there is as yet no weight behind a push to harmonize those resource regulations that do exist.

Indigenous regulatory institutions among the fishing communities of Junagadh District are renowned for their strength in the wider social realm. The Kharva and Koli Kharva castes of the district are dominant groups in the fishing towns of the district because of the power of their community solidarity. The basis of this solidarity lies in the samaj (caste associations) that run the social lives of their members to the point where police and other local state authorities must go through the caste leadership if they wish to have deal-ings with individuals from these groups. From the fisheries’ point of view, however, there is a significant irony here as, while these caste organizations are very strong for social and political purposes, they have historically had little to do with the regulation of fishing (see Johnson 2002a; Johnson and Sathyapalan 2006).5 It is questionable whether the samaj in their present form would make representative partners in a co-management framework were one to be introduced. The samaj are dominated by the wealthy members of the fishing caste communities that they represent and they would likely negotiate for the legal advantage of those groups in a hypo-thetical co-management regime. This said, the samaj have been largely effective in restricting access to the fishery from Junagadh’s fishing harbors to local fishing castes.

Even though still weak in an absolute sense, the most sig-nificant regulator of the Junagadh fishery is the Gujarat State Department of Fisheries.6 The involvement of the fisheries department in the fishery of Junagadh until very recently has had only an indirect relevance for resource management, and particularly conservation. The department’s mandate has been rather administering the growth of the fishery, which it did admirably through the mid-1990s. Gujarat’s vessel registra-tion system, for example, is among the most comprehensive in India. The department had no mandate to build regulatory linkages with the strong fisher leadership of the district. Con-nections were rather for assuring the efficient disbursal of subsidies. The imbalance of the growth-promoting strategy of the fisheries department became evident in the late 1990s when the fishery abruptly ran a crisis of overexploitation revealed by the sudden deterioration of economic conditions due to the Asian economic crisis (Johnson 2001, 2002b; John-son and Sathyapalan 2006). In belated response to the lack of a resource conservation dimension to their management strategy, the fisheries department was able in 2002 to finally have the Gujarat Fisheries Act pushed through the Gujarat Assembly. While the act contains an odd collection of rules for resource regulation, they at least serve as a precedent for conservation-oriented efforts by the state. Even here, how-ever, the opportunity was not taken to move towards a more co-management framework: the act is entirely prescriptive, with no articles related to the decentralization of management authority to fisher groups.

Of the factors that explain the weak legal pluralism for fisheries management in Junagadh and the absence of the co-management idea, three are particularly significant. First, prior to the 1950s, fishing was a marginal occupation in Junagadh. The occupation of choice for the dominant

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groups in the fishery at that time was crewing long-distance trading vessels. In a context of low pressure and abundant resources, indigenous fisheries regulation was, thus, relatively unimportant. Second, once the state and coastal communi-ties involved in fishing realized the huge growth potential of fishing, all efforts were to maximize production rather than to develop the fishery in a sustainable manner (Armitage and Johnson 2006). The advent and promotion of trawling dur-ing this period was a key contribution to this agenda. Again, resource management was a low priority. Third, as the fishery has entered into an era of resource uncertainty, the institutional support for management innovations has weakened. Now that the bloom has faded from fisheries in Gujarat, as their full growth potential has been met, the Gujarat government has shifted towards a coastal industrialization strategy that is in direct conflict with fisheries. One consequence of this shift in focus has been a growing neglect of the Fisheries Department (Johnson and Sathyapalan 2006). From the point of view of the Junagadh fishery, this is a serious problem as, while the Fisheries Department has steered the growth-oriented strategy of development in the fishery, it is the most knowledgeable and best-placed organization to coordinate a new co-management approach.

Had the Gujarat Department of Fisheries early chosen to link its management efforts with fishers’ groups in Juna-gadh, it would not have found an immediate abundance of indigenous resource management capacity. It would, none-theless, have found institutions that, while not yet applied to fisheries, do possess a potential for fisheries management. These institutions could have complemented and legitimized attempts to build a co-management framework for the district. As neither the Fisheries Department nor other state organiza-tions had the mandate or vision to ally with fisher institutions and as the economic incentive has pushed an open access dilemma, the potential of these indigenous legal systems was never tapped. While it is perhaps still not too late to make such connections, circumstances are increasingly less propitious. A push for co-management grounded in legal pluralism in Junagadh, if it is to come, must come quickly.

Politicized Co-management in Ernakulam District, Kerala

For many years, Kerala has epitomized fisheries develop-ment in India. Not only did the Blue Revolution, which found a tangible root in an Indo-Norwegian project (Klausen 1969; Kurien 1985), commence here, the movement of artisanal fishermen, which subsequently developed in opposition to the trawler fisheries, has also drawn substantial attention (Kurien 1993; Meynen 1989). Kerala fisheries have long been para-mount in India, roughly similar in total production to Gujarat since the beginning of the 1990s while generating the highest amount of foreign exchange earnings (MPEDA 2005).

Ernakulam District has stood at the forefront of fisher-ies modernization in Kerala. A sizeable trawler industry has arisen in and around the district’s main port of Cochin. More

than 1,300 mechanized boats, employing approximately 15,000 workers, are currently based in Cochin, with many other boats and fishers seasonally plying the area (Thomson 2006). With the growth of trawler fishing, the number of ar-tisanal fishermen has declined. Still artisanal fisheries are the larger employer, providing jobs for more than 17,000 men. In the course of time, artisanal fisheries have differentiated, resulting in three sub-categories: fishermen making use of small, non-motorized fishing craft; fishermen possessing small craft with outboard engines; and fishermen with tan-guvalam (large canoes) and inboard engines.

Like Tamil Nadu, the artisanal fishing communities of Kerala historically have strong village-level institutions for fisheries regulation. These include kadakkodi (sea courts), or Araya Karayogam (cf. Lobe and Berkes 2004; Paul 2005; Thomson 1989). The expansion of the trawler fishery, however, provided an impetus for the development of as-sociations and movements with a stronger political agenda. The Kerala Swathnathra Matsya Thozhilali Federation (KSMTF) is now the foremost organization representing the interests of artisanal fishermen in the state. But many others, representing special interest groups, have arisen at the district level. In response to the organizational activity of artisanal fishermen, the trawler fishermen of Cochin, as in other parts of Kerala and Tamil Nadu too, have created their own associations.

The role of political parties is striking. Although KSMTF maintained an independent position, many of the new organi-zations established by artisanal and trawler fishermen sought connections with political parties. The reverse took place as well: many of the larger political parties in Kerala established their own fisher associations or sought alliance with existing ones. The Communist Party of India Marxist (CPI-M), which occupies an important position in the political spectrum of Kerala, thus floated the Matsya Thozhilali Federation, with unions in each district. Other political parties did the same, resulting in the establishment of the Kerala State Matsya Thozhilali Federation (Communist Party of India - CPI), the Kerala State Matsya Thozhilali Congress (Indian National Congress), and other organizations as well.

The big difference between Tamil Nadu and Kerala lies in the connection between fisher organizations and political parties. Rather than forming an “outlier” community, marginal to the politics of the state, the fishermen of Kerala have con-nected closely to the political process at the district and state level. This has resulted, throughout the years, in significant government attention and in a process of strong and politi-cized co-management.

Most decisions for managing marine fisheries in Ernaku-lam District, and Kerala as a whole, are agreed upon in the political realm.7 The government, thus, steadily negotiates with fisher organizations on the allocation of fishing grounds, the desirability of specific fishing methods, levels of fishing effort, and the migration of fishermen within and across state boundaries. One of the biggest issues in recent years has been the scope and duration of the annual closed fishing season.

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None of these consultations are trouble-free, as many interest groups and issues are involved. Being compromises, no party is ever completely happy with the decisions made either. Political equations change over time, and agreements tend to be short-lived, with new negotiations always on the horizon. For this reason, rather than a technocratic process, fisheries policy in Kerala is very much within the domain of politics.

Discussion and Conclusion

From the legal pluralism perspective (Griffiths 1986; Vanderlinden 1989), state intervention would, at best, be consistent with and complementary to local rule but may potentially also be superfluous or even hazardous, as it may interfere with or eliminate local regulatory systems, with unforeseen consequences for the moral and institutional fabric of communities. Co-management may be a means to prevent such corrosive outcomes provided that it not only discerns locally present legal pluralism there but also is able to incorporate it effectively and constructively into the workings of the co-management system design. For this to happen, co-management must ensure equitable and repre-sentative participation of those user-groups and stakeholders who embody these legal diversities in a partnership with government authorities. This partnership would have the aim of harmonizing legal disparities in a way that is relevant to the management task at hand and is socially just from the perspective of participant stakeholders. Such co-management partnerships can assume different organizational forms as there is no specific formula, only organizational principles on which to build such as participatory democracy, formal organization, and subsidiarity (McCay and Jentoft 1996). Co-management is a legal system of and within legal sys-tems, all of them permeable and exposed to cross boundary impacts, fertilization, and/or conflict. Co-management does not in itself resolve these legal differences and conflicts. Rather, co-management establishes an arena for stakehold-ers to deliberate on the mitigation of such discrepancies and to be innovative about how law can be made more effective and socially just in particular situations. Legal pluralism is then a valuable resource that co-management can draw upon. Rules do not have to be invented from scratch but can be adapted and elaborated from those that already exist. Co-management law should to the degree possible build on and try to integrate existing legal systems. Thus, the general rule “if it works, don’t fix it!” applies here. But relevant legal systems must somehow be represented in the decision-making process. The process of coordinating with them requires an institutional response. Legal pluralism needs interactive co-management designs where those who know about the legal systems, what they mean, how far they reach, and who are obliged by them, sit at the co-management decision-making table. They ultimately must pass judgment on existing legal orders and must agree on how to sort out inconsistencies and reconcile discrepancies. That cannot be something imposed

on the parties involved, and certainly not by the most pow-erful of them. If so, legitimacy will soon be eroded. Here, co-management should apply the subsidiarity principle that legal inconsistencies and conflicts should be dealt with at the lowest possible organizational level. This rule would require a higher authority to which one can appeal and seek assistance in adjudication when stalemate occurs. The authority does not necessarily have to be the state, but can be designed on co-management principles to include, for instance, a federation of local co-management organizations.

Legal pluralism provides limits within which co-manage-ment must operate. Co-management cannot disregard legal systems and the norms and values that underpin them. Neither can it easily nullify existing legal orders and start all over again. Thus, the design of fisheries and coastal co-manage-ment systems never starts from a legal clean slate. Instead, it must always take into account, and build upon, legal systems that already exist without, as K. von Benda Beckmann (2001) points out, uncritically endorsing every rule. Instead, it must help to reconcile inconsistent rules and conflicting principles according to some overarching principles, for instance per-taining to justice. Co-management systems can hardly work effectively unless they are able to remove anomie (normative) and cognitive confusion (information deficit) among com-peting user groups and stakeholders. Thus, co-management must somehow make up for the added complexity that legal pluralism brings, for instance by finding ways to reconcile legal differences, communicate them so that they are well-known, and whenever possible try to simplify them and make them easier to understand. The need for legitimacy, which is important for legal codes to be accepted and adhered to, would suggest that co-management legislation be kept close to stakeholders’ own perceptions of social justice and natural rights, and that it be developed with respect to local values and world views. In other words, legitimacy hinges upon the contextualization of co-management legislation with due respect to general human rights legislation and codes of conduct for sustainable and responsible fisheries.

In none of the three Indian states presented here has co-management yet become an explicit model for fisheries governance, although there are signs of some movement in that direction. There are now several examples where stake-holder groups have become involved in negotiating solutions to management issues, for instance pertaining to the resolution of distributional conflicts. To the extent arrangements and processes are akin to what may be labelled co-management, they are, however, mostly informal and ad hoc. For instance in Ramnad District, the state has initiated a system whereby various fishing groups are consulted on a regular basis. By doing this, some of the shortcomings of traditional legal institutions operating in a modern context characterized by increasing differentiation between fishing groups are being compensated for. In Junagadh District, which, as Ramnad Dis-trict, has a number of non-state community-based institutions, co-management has progressed much less. As manifestations of legal pluralism, these institutions could well have been

36 HUMAN ORGANIZATION

allowed to play a more active role in fisheries management than they have so far, although their focus has not been on fisheries management as such. Here, the state has played a less constructive role in negotiating management policies and settlements with stakeholder groups as compared to what has happened in Tamil Nadu and Kerala. One reason is that management issues and concerns have simply not been on the political agenda as much as in other states. Kerala also displays an array of traditional institutions involved in fisheries management at the local level. However, as the state became more active, rather than supporting their role, it largely replaced them. Therefore, it met with opposition among fishing groups, which turned co-management into an implicit but still highly politicized affair. Nonetheless, as a result, informal co-management practice later evolved where fisher organizations and unions together with the state formed a partnership through which settlements were nego-tiated. These negotiations could, thus, draw from the legal positions and diverse legal systems that each group brought to the table.

The case studies demonstrate that co-management is a process that evolves over time and through an interactive process that requires participation of stakeholder groups and organizations and a proactive state. In Gujarat, these condi-tions have yet to come together to stimulate any significant co-management process and the state so far serves best as a negative example. In Tamil Nadu and Kerala, it was not the co-management concept that inspired the process but urgent matters particularly related to user-conflicts that needed to be addressed. Co-management arrangements then evolved as practical solutions in particular contexts characterized by a high diversity of legal systems that co-management could draw on but also needed to balance out in the negotiations. Thus, contexts where legal pluralism and conflicts pertaining to resource distribution are present do seem to indicate that co-management is an essential path to legitimacy.

Co-management may have several beginnings (Chuen-pagdee and Jentoft 2007; Pomeroy and Rivera-Guieb 2006), it does not follow a single recipe, and its stimulus differs from case to case. In these three states of India, co-management is moving ahead slowly, or not at all, the steps taken so far are modest, and it still seems to lack the wings it needs to fly.

Notes

1See also the special issue of Human Organization Vol. 66, No. 1, 2007.

2See www.idpad.org for a list of working papers that emerged from the project.

3As our definitions of “strength” and “weakness” of legal pluralism vary from common usage, it is worthwhile providing some explanation of them. Griffiths (1986:5) defines weak and strong legal pluralism ac-cording to the measure of integration within a state-centred framework. Thus, he considers a legal system weak in the pluralistic sense when the state “commands…different bodies of law for different groups in the population.” Family law in India provides good examples of this: the

constitution of 1950 recognizes different bodies of family law for different religious groups. Strong legal pluralism on the other hand is “a situation in which not all law is state law nor administered by a single set of state legal institutions, and in which law is therefore neither systematic nor uniform.” Here, there is legal fragmentation rather than integration.

We do not follow Griffiths’ definition, mainly because it interferes with our secondary interest in co-management. After all, weak legal pluralism, in Griffiths’ sense, is no more than one style of co-management in which the state is predominant. From our perspective, strong legal pluralism refers to a situation whereby multiple, pronounced, and vibrant legal systems apply. Weak legal pluralism, to the contrary, exists when alternative legal systems pertaining to a particular situation are badly developed. Here, there is a deficit of plurality.

4The “panchayat” (lower-cased) referred to here is an informal orga-nization for decision-making, quite different from the “Panchayat Raj” (upper-cased), which is the lowest tier of governmental administration and political representation. While the latter has been operational in Tamil Nadu mainly since 1996, it has little to no influence on fisheries manage-ment, leaving such matters to its informal namesakes to handle.

5The indigenous regulation of fishing in the district has actually

been most widespread in the easternmost area of the district where the caste organizations of the dominant Koli group in that area are weakest. The institutional strength of fisheries management in this area seems to reflect the specific type of stationary bag net fishing practiced there which is prone to conflict over fishing spots rather than caste organi-zation. Even here, however, while rules for establishing access rights to certain fishing spots are strong, rules to explicitly conserve fishing resources are few.

6Panchayat Raj institutions (see note 4) have not offered an alternative institutional basis for fisheries regulation at the village level. In a context where the samaj are so powerful for fishing communities, panchayats largely play a secondary role as the formal interface between fishers and the state for the securing of welfare schemes. In mixed-occupational villages, they are also a site for the negotiation of intergroup relations. A single exception is Rajpara at the eastern extremity of Junagadh district’s coast, where the affairs of the Koli community came to be regulated by the Panchayat in place of the defunct local samaj.

7The District Collector is responsible for enforcing fisheries regu-lations and government policies in Kerala. Political negotiations are held in his presence and decisions are implemented by him. Although Kerala has achieved great momentum in implementing decentralization compared to both Tamil Nadu and Gujarat, Panchayat Raj institutions are not involved in the regulation of marine fisheries there.

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