Property, legal pluralism, and water rights: the critical analysis of water governance and the politics of recognizing “local” rights

Abstract

In this paper we assess the impact of Franz von Benda-Beckmann's work in the field of water rights. We argue that his contributions to understanding water, a field dominated by engineers and economists, cannot be overestimated. Over the years, Franz's nuanced and empathic anthropological attitude, his suspicion of universals, and his critical stance towards mainstream development thinking have developed into a rich conceptual repertoire for understanding how norms, rules, and laws co-shape water flows to produce highly uneven waterscapes. His ideas have been particularly influential in re-thinking water as property, opening up for investigation the relation between “the legal” and human behaviour through a layered conceptualization of property. There is now increasing recognition of the idea that water use situations are often governed by a plurality of rules, norms, and laws that come from different sources. The impact of such insights on engineering-dominated water studies is growing. Indeed, law and notions of legal pluralism are increasingly mobilized for the purpose of better regulation of water. The instrumental use of legal pluralism may, however, result in a watering down of descriptive-analytical concepts. These concepts may thus lose their analytical power and become linked to the very forms of identity-based politics, neoliberal ideologies, and modernist-legalist interventions that critical legal pluralism studies intend to challenge.

Keywords:

• irrigation
• law
• legal pluralism
• property
• water control
• water rights
• water governance

Acknowledgements

We would like to thank the editors of this special issue and two anonymous reviewers for their valuable comments and feedback.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. Franz von Benda-Beckmann's work has become particularly influential in Indonesia, India, and Nepal in Asia, and is also used by many scholars who investigate water rights and governance in the Andean countries.

2. Much of Franz von Benda-Beckmann's work on water rights, including projects in Nepal and India funded by the Ford Foundation, was done in cooperation with Joep Spiertz, who had done extensive field research on balinese irrigation and water rights, and with Keebet von Benda-Beckmann.

3. For a more extensive discussion of these, see other contributions to this special issue.

4. While actor-oriented sociology became the trademark of the Wageningen Rural Development Sociology group, socio-technical approaches to irrigation and water control came to characterize the work of the Irrigation and Water Engineering Group.

5. Examples are Ostrom's work on Nepal and the work by Robert Wade on India.

6. A research programme for India and Nepal that emerged from cooperation along these lines, pioneered by Franz in cooperation with the Irrigation and Water Engineering Group, was “Matching technology and institutions in land- and water management”; see Roth and Vincent 2013.

7. For a more in-depth discussion see, among others, Wiber in this special issue.