کثرت گرایی حقوقی و تمرکز زدایی : مدیریت منابع طبیعی در کشور مالی

Much recent work on decentralized natural resource management has focused on the institutional arrangements that shape the balance of powers between central and local governments. It has given comparatively less attention to relationships between local government and community-level institutions. In Mali, decentralization has superimposed modern legal institutions on community institutions. The ambiguous relationships between them can undermine both the authority of nascent local governments and the performance of customary institutions. Legal pluralism—the coexistence and interaction of multiple normative orders with different sources of legitimacy and authority—helps explain the dynamic nature of local institutions under decentralization. This article examines the experiences of three Malian communities with decentralized natural resource management: one maintains autonomy from government, another engaged its local government, and a third negotiated a multi-stakeholder agreement—a local convention. They demonstrate that crafting workable relationships between communities and local government requires a pragmatic approach to negotiating and institutionalizing political space for innovation in self-governance.

Global trends toward democracy and decentralization have created unprecedented opportunities for popular participation in government and, in many cases, local control over natural resources (Ribot, 2004, Ribot and Larson, 2004 and UNDP, 2002). A majority of developing countries have implemented some form of decentralization, and many have decentralized some aspect of natural resources management (NRM) (Agrawal & Ostrom, 2001). Reforms have sought to remedy some of the negative consequences of centralized post-colonial states by creating local governance structures that aim to harness the abilities, knowledge, and incentives of rural people. Yet the outcomes of decentralized NRM have not met initial expectations. Drawing on recent experiences from central Mali, this paper examines how tension between customary NRM institutions and decentralized local governments shapes the outcomes of these reforms. In many countries, decentralization has not only redistributed power but also created new forms of local government with some degree of political, administrative, and financial autonomy and often with democratically elected officers and deliberative councils. These new forms of local government are frequently superimposed on customary governance structures, including deeply rooted NRM systems.1 I refer to these NRM systems here as “customary” or “community” institutions—referring to self-organized rule systems that are rooted in shared social experience and histories of communities.2 This somewhat narrow use contrasts to other “community-based” institutions that are designed by outside agents and implemented at the community level, often in the context of specific projects. Community NRM regimes are based on “rights that are transformed through social rather than legal mechanisms, the legitimacy of which is rooted in tradition rather than legal statute” (Grigsby, 2002, p. 152). Policy analysts commonly regard customary institutions as potentially adaptive but not inherently inclusive or accountable; they can respond rapidly to changing social and environmental factors, but they embody a variety of non-democratic social structures and dynamics. However, despite their potential advantages as representative bodies, nascent local governments frequently lack the legitimacy and capacity of community institutions (Ouedraogo, 2003). As a result, customary institutions often persist, coexist, and interact uneasily with state-sponsored governance institutions, creating a tension between those that are perceived as effective and legitimate by local resource users and those that are sanctioned by the state. This is particularly true in Sahelian West Africa, where decentralization initiatives have adopted local government structures that have largely failed either to replace or to integrate customary institutions. The relationships between customary and statutory laws and between customary authorities and local governments are frequently ambiguous as a result of either omission or design. The unresolved relationship between rule systems with different sources of legitimacy—legal pluralism—undermines both the authority of nascent local governments and the performance of customary institutions. The manner in which legal pluralism is resolved plays a central role in shaping state-society and human-environment dynamics that emerge from decentralization. The concept of nesting—formalizing channels of authority and recourse linking rule systems at different levels—discussed by Ostrom (1990) is helpful in understanding the public policy dilemma relating to relations between community-level institutions and higher-level authorities, such as local governments. Vaguely defined or incomplete nesting under decentralization has perpetuated what Onibon, Dabiré, and Ferroukhi (1999) have termed a “sterile dualism”—the coexistence of impracticable state law and unauthorized local practices—that was characteristic of earlier, centralized regimes. The state promulgates laws that are not compatible with local livelihood patterns and practices, while simultaneously rendering many of those practices illegal.

The three communities demonstrate a pragmatic need for state policy that recognizes custom as a resource for organizing effective NRM. However, this recognition must be part of a longer-term project of aligning that which is legal (in the sense of compatibility with state law) with that which is perceived locally as legitimate. This must involve innovative ways of linking state and customary law—such as local conventions—but it must also legitimate local government, build the capacity of local governments, citizens and civil society, and promote a political culture that supports representation and responsiveness. Reconciling legal pluralism is not a matter of authorizing communities to continue organizing along traditional lines or of codifying customary land tenure as private property rights. The three cases demonstrate the need for a policy framework that enables local resource users to find innovative solutions for complex local problems and that enhances representation and accountability. It should allow self-organization but also build linkages with the state through local government. State-sponsored governance reforms should enable resource users to organize in ways that are appropriate for effective collective action—ways that sustain both livelihoods and diverse ecosystems products and functions. Current decentralization processes in Africa “differ by the level of legal reform involved, the scale and number of levels of ‘local’ government, the kinds of authorities being engaged and developed, the mix of powers and obligations devolved, the sectors involved, the nature of the enabling environment, and the motives of governments for launching these reforms in the first place” (Ribot, 2001, p. 101). Mali stands apart even from its West African neighbors in terms of both its commitment to decentralization, as embodied in its macro-level institutional arrangements, and the richness of local experience with common-pool resource management. Unlike many parts of the world, community institutions are still vibrant in rural Mali. The lessons that Mali offers are most relevant to cases where some degree of institutional capital exists locally. Barrett et al. observe that