Constitutionality: Conditions for Crafting Local Ownership of Institution-Building Processes

Abstract

This article presents constitutionality as a new approach for analyzing bottom-up institution-building processes emphasizing local perceptions and local agency in common pool resource management. Using four case studies—fisheries in Zambia; pasture and forestry in Mali; fisheries in Indonesia; forestry in Bolivia—this approach analyzes examples of local institution building differing from top-down imposed participation. Our analysis highlights six components of constitutionality: emic perceptions of the need for new institutions, participatory processes of negotiation, preexisting institutions as a basis for institution building, outside catalyzing agents, recognition of local knowledge, and higher level acknowledgment of the new institutions.

Keywords:

• bargaining power
• emic views on institution building
• interfaces of local and national institutions
• local institutions
• natural resource governance

Introducing Constitutionality

This article formulates a new theoretical perspective called constitutionality. Constitutionality refers to an institution-building process that highlights natural resource management initiatives from below, analyzed from a perspective that emphasizes community members’ views on participation, the strategies they employ in negotiating such initiatives, and the extent to which they can develop a related sense of ownership in the institution-building process for common pool resource (CPR) management. The approach was inspired by many years of work on the dismantling of well-working institutions for the management of common pool resources by the authors and others (see Rist et al. 2006; Acciaioli 2008a; 2008b; Geiser and Rist 2009; Haller 2010; 2013), uncovering the top-down nature of many participatory projects in natural resource management and protected areas (see Rist et al. 2007; Galvin and Haller 2008; Acciaioli 2009). In this article we seek to move beyond the analysis of such failures in cases that depend upon participation in schemes introduced from outside (e.g., Barron, Diprose, and Woolcock 2011) and subjectivity imposed from above (e.g., Agrawal 2005) to a focus upon local agency and creativity in the construction of novel institutions to deal with environmental issues. Our approach incorporates an analytical viewpoint stressing actors’ own active formulation and implementation of constitutional rules for resource governance (Dolšak and Ostrom 2003), which has been lacking in many cases in which participatory management has been the result of outside imposition. This article therefore focuses on successful bottom-up crafting of institutions only; it does not discuss cases where participation did not work out, as these have been treated elsewhere (e.g., Galvin and Haller 2008; Haller 2010; 2013).

Rather than referring to legally established political constitutions for states and organizations, constitutionality in our usage refers to pro-active and strategic participation in the design of local institutions negotiated in settings with heterogeneous stakeholders focused upon the use of natural resources. Bargaining-power issues are crucial because we see local communities as being heterogeneous in terms of internal power distribution and also often characterized by a relative lack of power in dealing with outside actors, whether the state or immigrants. We seek to interrogate why and how institution building has been possible in specific contexts despite power asymmetries and why and how a sense of ownership of the institution-building process and result could develop (see Chabwela and Haller 2010; Haller 2010; 2013). Constitutionality illuminates how conflicts over resource management can lead to institutional solutions formalized as compromises with collective benefit for most or even all actors (cf. Knight 1992).

Based on case studies from Zambia, Mali, Indonesia, and Bolivia, we are able to exemplify the process of constitutionality in the formation of institutions that have the potential for long-term sustainable use if:

1. local actors are empowered to engage in the institution-building process based on their own perspectives, which can be analyzed emically;

2. these solutions are recognized by the state due to the existence of laws, regulations, and policies that accommodate local action;

3. by forming interest groups, heterogeneous actors in these contexts can discuss what kinds of institutions, both “traditional” and innovative, they feel to be of importance before negotiating overall regulations; and

4. nongovernmental organizations (NGOs) and state actors, despite never being neutral in the institution-building process, find it appropriate to create a relatively open platform for local debates, thereby reducing transaction costs for organizations and catalyzing communicative action for enhancing social learning processes.

What emerges is not a win–win constellation, but rather a compromise due to the relative leveling of bargaining power (Chabwela and Haller 2010). This approach thus differs from Ostrom's design principles and from the institutional analysis and development (IAD) framework because it addresses power differences and focuses on local people's views of and strategic moves in the institution-building process, which Ostrom regarded as a “black box” (personal communication with Haller in 2011).

Pitfalls of Participatory Approaches to Common Pool Resource Management

Despite the call for participatory approaches and decentralization in sustainable development and governance in the last 15 years, there has been a growing critique of such approaches in regard to both their basic concepts (Ribot 1999; 2002; Cook and Kothari 2001; Larson and Ribot 2004; Haller 2007) and their strategic applications in such concrete contexts as co-management schemes for protected areas (Acciaioli 2008) and community-based natural resource management (CBNRM), especially in Africa (Blaikie 2006; Brockington, Duffy, and Igoe 2008; Haller and Galvin 2008; 2011; Haller et al. 2008). These critiques argue that the participatory approach is often used as a “Trojan horse” (Blaikie 2006) by powerful actors, sometimes external but often local, leading to “elite capture” (Iversen et al. 2006; see also Carlsson and Berkes 2005). When analyzed in terms of Ostrom's differentiation between constitutional, collective, and operational choice (Dolšak and Ostrom 2003; Ostrom 2005), local people have largely been restricted to “participatory” roles in collective choice and operational choice, while the operations of constitutional choice have largely been monopolized by such powerful actors as state agents. Although Borrini-Feyerabend et al. (2004) argue that “sharing power” is the key to sounder participatory management of natural resources, few studies have actually focused on how local people perceive such processes and how they influence institution building.

This new approach stems from the authors’ previous research highlighting the extreme limitations with regard to such approaches to participation. Data from three research projects on the management of floodplain wetlands (Haller 2010), protected areas (Galvin and Haller 2008), and commons in Southern Africa (Haller and Chabwela 2009; Hara et al. 2009) showed four major aspects. First, these projects diverged on the ground from what government officials and development/conservation planners claimed to be the “local” perception of common pool resources (CPR) and participatory use. Second, economic cost–benefit and political loss–gain analysis showed no significant gains perceived by local actors. Third, development outputs have often been disappointing because local actors did not perceive any significant devolution of power. Fourth, such participation has been evaluated as inadequate because of four factors: (a) Designs were imposed from outside the community; (b) local power relations were not considered, and no measures were taken to create arenas for all stakeholders; (c) as local colonial and postcolonial power relations remain unbalanced and the danger of elite capture emerged, trust eroded and stiff opposition to projects by interest groups resulted, undermining the process; and (d) local actors did not clearly perceive the relationship of nesting in higher level state organizational structures due to decentralization regulations, and they often regarded state administrators merely as predators. All these factors led to reduced local motivations for institution building.

These research results have revealed the importance of valuing local perceptions and attitudes. Agrawal (2005) provides one attempt to consider these with his framework of “environmentality,” derived from Foucault's conceptualization of governmentality (Burchell, Gordon, and Miller 1991). Agrawal uses this term to examine how a top-down, state-driven discourse regarding the protection of the environment in India has created new environmental subjects embodying an attitude of care toward the environment. Specifically, he attempts to demonstrate that members participating in village forest councils in India have incorporated and internalized governmental notions of the protection of forests and have become subjects of a conservation ideology defined by the government, adopting its values. However, this framework has been criticized from a number of perspectives: Fletcher's (2010) delineation of multiple discrete environmentalities in competing approaches to conservation policy; Cepek's (2011) Marxist treatment of apparent compliance with conservation initiatives despite alienation as a result of local calculation of interests; and Singh's (2013) highlighting of affect, emotion, and embodied practices, as opposed to the techniques of governmentality, in shaping environmental subjectivity. Acciaioli (2008b) uses practice theory to present another critique of this approach, focusing on the strategic actions of individuals and interest groups on different scales in the Lore Lindu National Park in Indonesia. Invoking Bourdieu's (1977) notion of second-order strategies, rationalizations of actions as in accord with social rules when they are primarily motivated by other reasons, he argues that local indigenous actors use the idiom of conservation discourse to pursue their own agenda of controlling the in-migration and resource uses of settlers. This practice theory approach reveals the necessity to examine ethnographically the agency of local actors acting from below (see also Haller and Galvin 2011).

In this article we seek to theorize and exemplify local processes of negotiating resource management through the perspective of constitutionality. While acknowledging the derivation of this theoretical perspective from the New Institutionalism (Ostrom 1990; Ensminger 1992; Haller 2010), we move beyond this framework to examine the strategic dimensions of how grass-roots participation in institution building has actually been accomplished, negotiated, legitimized (by reference to ideologies), and established, involving compromises that take into account power issues (Ensminger 1992; Haller 2010). Such approaches as practice theory (Bourdieu 1977; Ortner 2006) foreground the dispositions, interests, and strategies of various stakeholders involved in the process of constitutionality, as well as the structural framework of power for local-level negotiations. The constitutionality approach, emphasizing bottom-up processes and communicative-strategic action, thus incorporates local actors’ agency into the processes of negotiating and constituting environmentalist attitudes, actions, and outcomes in a way that environmentality as a theory has only partially achieved (cf. Fletcher 2010). Highlighting local agency also requires understanding the views of local actors upon institution-building regarding fairness, including gender equity, as well as a sense of ownership from an emic perspective. These are central dimensions underlying actors' motivations and strategies in crafting and enacting local institutions despite power asymmetries that fluctuate with regard to different issues at different historic moments.

As recognized by both neo-institutionalism in social anthropology and practice theory, as well as other perspectives such as cultural politics (Baviskar 2008), we do not regard the state as a monolithic entity; rather, state departments and agents engage with local actors in various ways in negotiating resource governance arrangements related to differences in bargaining power. Studying the process of constitutionality can also be enriched by invoking some of the conceptual tools of social capital theory (cf. Fine 2001; Ostrom and Ahn 2003), in regard to the process of building trust among actors. However, constitutionality's focus on motivations for collective action, analyzed emically, distinguishes this approach from Ostrom's work on design principles. The construction of trust through collective action for crafting institutions requires considering relative bargaining power between actors. It also focuses attention upon how local levels are linked directly and indirectly to “outside” legal frameworks. Such links are crucial not only to enable “forum shopping” (Benda-Beckmann 1981) and “institution shopping” (Haller 2010), but also for the processes of state recognition and legitimation required for the sustained operation of local frameworks of resource management achieved through constitutionality. Analyzing this process thus includes considering the formal and informal ways of nesting achieved local arrangements within legal–constitutional and political–economic contexts ranging across district, provincial, national, and international/global levels.

Methods

In this article we examine four cases from the constitutionality perspective. All four cases are analyzed using a mixed methods approach, involving both qualitative methods and some quantitative instruments (household questionnaires). The qualitative methods have included participant observation of one year or more, structured and open ethnographic interviews, focus-group discussions, and elicitation of oral history and biographies, complemented by literature and archival research. However, the research for these case studies did not originally proceed from a unified research framework emphasizing beforehand the notion of constitutionality; indeed, we have partially derived the constitutionality perspective through reexamination of these cases. Thus, previous research, originally based upon other informing theories used by the three authors and colleagues, has been used here in order to illustrate retrospectively the potentialities of the new approach of constitutionality.

Results

In this section we present the most relevant features of four case studies, situated in Zambia, Mali, Indonesia, and Bolivia. While each context presents a unique constellation of actors and interests, we attempt to emphasize here the commonalities in the dynamics of local bottom-up institution building, as highlighted by using the constitutionality framework.

Case Study Zambia: Crafting Local By-Laws for the Fisheries in the Kafue Flats Floodplain

Conflicts have arisen over the overuse of fisheries in the Kafue Flats, a floodplain in Zambia close to the capital Lusaka, due to erosion of local institutions and to the weakness of state institutions, leading to a de facto open-access constellation from which immigrant fishers and fish traders profit (Haller and Merten 2008; 2010). The erosion of local institutions to manage the fisheries emerged from political, economic, and major institutional changes in this seasonally inundated floodplain, which covers 6500 km² in an otherwise semi-arid area and harbors a rich variety of fish (tilapia, alestes, and others), as well as antelope and other game species. Rich grazing grounds that emerge after seasonal floods have attracted the Ila to immigrate here to use local resources along with the indigenous Batwa fishers and hunters.

Although the Ila are largely agro-pastoralists, fishing has been one of their major sources for protein, and regulations were adapted to floods (see Haller and Merten 2008; 2010; Haller 2013). The Ila had big men who were the political elite who augmented their social capital by attracting followers through giving out access to common pool resources managed as common property, including land, pasture, and hunting rights. Despite competition among these big men, who were perceived as the managers of the local resource territories, regarded as received from ancestral spirits, cooperation also occurred, based on reciprocal access arrangements. They had spiritual masters (utamba) who organized monitoring, sanctioned resource misuse, and governed access to fisheries as a common pool resource (Haller and Merten 2010). During high floods, fisheries were open access, but when the water retreated, the remaining small ponds or lagoons became regulated common property areas. The coordination of collective fishing in ponds was based upon the utamba inviting the local people to a ritual in which he appeased the ancestral spirits, who would, according to their (emic) understanding, otherwise attack in the form of crocodiles, often hiding in the ponds, to punish free riders. This institution provided a sustainable basis for the use of fisheries, with the latent function of preserving local fishing resources, though the manifest intention was to further the prestige of local big men, leaders in organizing successful collective fishing events.

Major changes of this institutional framework occurred by a twofold process: First, big men were dismantled during colonial times and replaced by chiefs loyal to the government for tax enforcement. Although chiefs would distribute land, fish, and wildlife, these became resources owned by the colonial power and, after independence, the national government. Hence a shift from common to state property occurred. People from other areas were attracted by this policy to move to the Kafue Flats, putting pressure on locals. When commercial fishing became too intensive in the late 1950s, the government imposed a series of national laws sidelining local regulations, focusing on gear, zoning, licensing, and permits.

Because of its heavy dependence on copper exports, which experienced dramatic price falls since 1975, the Zambian state lacked the financial means to enforce its institutions. Consequently, push factors (e.g., unemployment in the mining and administration sectors) and pull factors (e.g., high relative prices for fish in urban markets, hence rising economic attractiveness for fishing as a livelihood) severely undermined state governance (Haller 2013). Not only were the local institutions for the fishery management no longer working, but the state institutions also proved to be very fragile due to the decrease in state financing, as more seasonal immigrants, seeking a livelihood in commercial fisheries and the fish trade, moved to the Kafue Flats. Local headmen and chiefs were helpless to react. These immigrants, invoking the ideology and discourse of being citizens of the state entitled to use a state resource, used outlawed techniques in their fishing, as the state was not present to monitor and sanction unruly actions. A de facto open-access situation resulted, exemplifying the paradox labeled the “presence-absence” of the state (Haller and Merten 2008; 2010).

Year-round fishing using very fine-meshed nets and a lack of attention to preserving fish breeding grounds led to a decline in catch from 11,000 MT to 4,000 to 2,000 MT (see Haller and Merten 2008; 2010; Haller 2013). According to local informants, several fish species have not been present for many years. Increasingly, young Ila men violated collective fishing rules, and in the commercial fishing camps women engaged in the “business” of selling sex for fish, which they then sold (Merten and Haller 2007; Haller and Merten 2010).

During our research, locals complained that all the fish were taken away and that outsiders in particular (though they were not the only ones) did not respect any rules. As all of them stated that they wanted to do something to change this situation, the researchers brought together the people in the Hamusonde Chiefdom with officers from the Fisheries Department in discussions focusing on the legal possibility of crafting local by-laws. As a result, a local interest group was formed and started to develop its own by-law proposal in 2002/2003. In other chiefdoms and villages, in Bweengwa and Mbeza (Hamusonde Chiefdom and Nalubamba Chiefdom), local people also started to take an interest in this process (Chabwela and Haller 2010; Haller 2013).

To address this problem, local Department of Fisheries staff, a research group, and several local representatives, supported by the NGO WorldFish Centre, collaborated between 2004 and 2006 to draft by-laws as a local constitutional (in our sense) counterpart to already existing national fishery laws. In analyzing this situation, two aspects became obvious. First, local power relations and factions needed to be incorporated in the process, as many people felt themselves not represented by chiefs. As part of this process, we identified two major categories of linked but different interest groups: (a) groups living along a tributary to the Kafue River, as well as women fishing with baskets and representatives of chiefs, in villages of four Ila and two related Balundwe chiefdoms that were composed of separate independent groups also often independent of interest groups around the chiefs (as the chiefs also often faced opposition); and (b) commercial fishermen, along with male and female fish traders, in fishing villages and temporary fishing camps in the floodplain. Second, it was important to provide a platform and framework in which all these groups could separately discuss—first within each subgroup and major group and then jointly—the way the fisheries should be managed. The process was not without conflicts and in the end reached a compromise. The by-law crafting process has initially been a success, as for the first time different local interest groups independently of their power constellations could engage in formulating a new institutional design for managing the fisheries. This involved both traditional institutions and new innovative forms of monitoring and control, including the fishing camps. Through these discussions at several levels, people with different power levels attained what we would call a sense of ownership of the institution-building process, as they labeled the resulting institutions as their own.

As well as treating technical and governance aspects of fisheries, these by-laws had two other major elements: (a) All actors agreed that regulations were needed, covering not only regulations for new fishing gear techniques (e.g., fine-meshed nets) but also traditional techniques (as was the case in the traditional institutions) and enhancing the empowerment of the ritual masters (utamba). (b) The crafted by-laws also addressed various nonlivelihood issues of behavior in the camps or in the chiefdoms, including alcohol abuse, offensive language, fighting and quarrelling, sex business, and problems of health and sanitation. The result achieved through this was a process of constitutionality, allowing all the different interest groups, despite their heterogeneous bargaining power, to discuss first separately and then together their ideas and interests for new institutions. This process included such factors as the role of outside agents (i.e., how the local sections of the Department of Fisheries, along with the researchers, provided a platform for constitutionality to emerge) and the preexistence of institutions (e.g., river monitoring by utamba) that came to be included in the new regulatory framework.

However, the long-run results of this process remain unclear: Local interest groups emphasized in 2011 that external fishermen now tend to avoid the area or change their fishing gear to be in compliance, and, as a result, catches are better again and some species have returned. However, the by-laws could not be ratified on the district level, which will erode their eventual effectiveness (Haller and Merten 2008; Chabwela and Haller 2010).

Case Study Mali: Local Conventions Crafted Among Villages Bordering the Tarabé River

Benjamin's (2008) research upon three cases of decentralized natural resource management in Mali demonstrates how decentralization schemes have facilitated local-level conventions for natural resource management. Mali's rich past of local institutional development is rooted in pre-Islamic, animistic worldviews. Ritual specialists have been key go-betweens organizing natural resource management, often not just within segmentary groups but within the pre-Islamic state as well, based on institutional settings crafted by ethno-professional groups (Bozo fishers, Fulani pastoralists, Marka peasants, and others). These institutions remained but were later formalized as a overall dina system after Islamization by Fulbe groups, enabling the coordinated use of the Inner Niger Delta floodplain. Natural resources were subjected to more centralized management during the French colonial era and by different postcolonial governments (Moorehead 1989; Benjaminsen 1997; Beeler and Frei 2010). A major transformation occurred with changes of the government in the 1990s when Mali, like many other African countries, followed the path of decentralization of natural resource management by creating local governments, partially transferring power to the local-level communes. However, these reforms did not fully devolve power to the local level, as they only involved large communes of 11 to 45 villages, and governors did not involve local-level actors in the process, leading to lack of trust in administration by a state that tried to block decentralization or use it for its own agenda (Benjamin 2008, 2258–61).

To illustrate the process of constitutionality, we consider the village called Senoré, located at the western bank of the Tarabé River and part of a large commune called Dioptodji, encompassing 61 villages. As in other villages and communities, Bambara, Raimbe, and Bella people in Senoré have developed institutions to govern the flooded Fimbéré pasture areas, as well as monitoring an adjacent gallery forest. Neighbors are allowed to use the forest for collecting gum and leaves, and reciprocally people from Senoré could graze animals on the adjacent flood pastures (Benjamin 2008, 2266). However, challenges to this institution of reciprocity have come from inside and outside interests cutting down palm trees (doum) in the forest close to the river. Although members of the Bambara ethnic group could be stopped, outsiders used appeals to their shared national citizenship and government permits to gain open access to the forest. When villagers consequently ceased the protection of the forest, an American NGO, the Near East Foundation (hereafter NEF), launched an initiative for a local convention (called Waldé Nema Tarabé) for forest protection. Despite the catalyzing role of this NGO, reciprocal rights already present in local common property institutions played an important role in this process of constitutionality. NEF initiated a discussion in several villages on how the forest should be locally managed in compliance with formal legal frameworks. This consultation process revealed that the forest could not be protected on its own without considering the management of other resources—fisheries, gallery forests, wetland pastures, and agricultural land—and the preexisting reciprocal arrangements between the villages for their use.

Based on this insight an association was formed to discuss joint management and prepare a convention for the management of all CPRs. NEF facilitated the meetings of this association, as well as meetings with local government and technical agents to reach a consensual written agreement for the management of the cultural landscape ecosystem and the regulation of conflicts based on the previously developed institutions of reciprocity among the villagers and different ethnic groups, They all accepted closing of some of the doum forests for 5 years and the right of the master of the water, who coordinated and regulated access to fisheries by his contact with water spirits. Flooded pastures were zoned for local cattle and managed by village chiefs, who were, however, controlled by public discussions from the mosque.

This convention worked because the diverse local stakeholders were all involved in the negotiation process and could give input to the convention. They agreed through debate that rules referring to ownership were to be justified on the basis of being the first comers in an area (i.e., precedence). As Benjamin (2008, 2270) writes:

Senoré has maintained customary management institutions for Fimbéré (pastures) and Kountou (doum forest) for several decades, in spite of complicated relations with its neighbors. Participation and negotiation in preparing the local convention created a new dynamic among diverse stakeholders and created a sense of legitimacy around it.

This process of constitutionality has succeeded in part due to the mediating facilitation of NEF in bringing everybody to the table. However, also crucial was the way in which a larger group of villages, of which Senoré was part, joined forces to increase their bargaining power vis-à-vis the state authorities, which were then forced to participate and listen to local voices. The existence of preexisting institutional designs based upon reciprocity also helped to overcome a complex combination of problems centering upon conflicts regarding outside input and local response; in parallel, the preexisting institution of the water shaman could also be invoked for regulation of the opening and closing of fishing. Despite the hierarchical nature of village societies in Mali, the accountability and transparent nature of the negotiations helped in the process of institution building, creating a sense of ownership of this process.

Case Study Indonesia: Reconstituting Customary Fisheries Management at Lake Lindu

As in the Zambian case study, the fisheries sector has been a major focus in adjudicating the access rights of heterogeneous actors settled in the Lindu plain, located in the mountains to the southeast of Palu, the capital of Central Sulawesi. In the precolonial and colonial eras Lindu was relatively isolated, although the indigenous Lindu people did provide fish as tribute to the lowland Sigi Rajahdom. An early Dutch source (Graaf and Stibbe 1918, 583) noted both the abundance of fish in the lake and the rudimentary fishing technology. More intensive harvesting of fish emerged only with the arrival of internally displaced persons during the era of regional rebellions in the early years (1949–1965) of independent Indonesia (Harvey 1974).

By the late 1960s a process of chain migration was bringing a steady flow of relatives of these first Bugis migrants from South Sulawesi, for whom fishing in the lake was initially the predominant livelihood (Acciaioli 1999, 2000). This livelihood differentiated them from the indigenous To Lindu, who remained predominantly wet-rice farmers, fishing largely for domestic consumption. Functioning as patrons, these first migrants brought nylon gill nets, providing their incoming relatives and clients with these in return for assured supplies of fish that they then marketed in Palu, the surrounding valley, and, at the height of marketing in the 1970s, in Menado in North Sulawesi after packing in ice and air-freighting.

Intensive fishing had been made possible only by the earlier stocking of Lake Lindu, first in 1951, by the Fisheries Department with several varieties of fish, most significantly common tilapia (mujair), to foster livelihoods and increase incomes for the To Lindu and provide a protein source for them and neighboring highland peoples. However, the Bugis migrants proved to be the primary beneficiaries, since the Lindu people did not have the modern technology to harvest these fish. Consequently, Bugis migrants and the indigenous To Lindu became clearly differentiated in a dichotomy encoding the difference in predominant livelihood orientations: the Bugis “shore people” migrants to fishing and the To Lindu “village people” to wet-rice cultivation.

Although all inhabitants were formally subject to the official village administration, the Bugis tended to heed only their own “shore” hamlet headman. The migrants’ relative autonomy from the exercise of authority by the state-imposed village government and the customary sanctions of the Lindu customary (adat) councils, whose administrative power had been stripped by the 1979 Law on Village Government, resulted in a de facto open-access fishery at Lake Lindu. In a typical “tragedy of the commons” scenario (Hardin 1968), seeking to maximize their catches, Bugis fishermen used gill nets of ever smaller mesh size, harvesting fish before they could breed. Fisheries Department controls and education attempts proved fruitless, resulting in the complete depletion of the tilapia stocks in the lake by 1989. While resentful, the To Lindu were powerless to exercise adat sanctions against such practices.

Regional developments beginning in the 1990s set the scene for redeeming this situation through the exercise of constitutionality. The gazetting of a large area around the Lindu plain as the Lore Lindu National Park in 1993 led to numerous Community Conservation Agreements (CCAs), brokered by such transnational organizations as The Nature Conservancy (TNC), with communities in and around the park, including the inhabitants of the Lindu plain. All these agreements recognized the authority of local adat councils to adjudicate transgression of park regulations, and the To Lindu in particular went about revitalizing their adat (Acciaioli 2002) as a community-based resource management system, a process also enabled by the rerecognition of adat under the national regional autonomy legislation in 1999 (Acciaioli 2001). This double empowerment of the adat councils extended to the exercise of adat sanctions over environmental transgressions within the Lindu plain, effectively reconverting Lindu from open access back to a locally managed commons. When Lake Lindu was restocked with tilapia in 2001 by the Central Sulawesi Integrated Area Development and Conservation Program (CSIADCP), the Adat Council of the Lindu Plain resumed the authority to declare ombo, a specified period of restriction on harvesting such resources as fish. Traditionally, ombo had been declared on the death of the highest nobles as a sign of respect; however, in keeping with the reconceptualization of adat as a community resource-management system embodying “environmental wisdom,” the function of ombo in maintaining the harmony of the environment was now foregrounded in local NGO publications (e.g., Laudjeng 1994, 160–1) and by adat elders. Ombo was thus refunctionalized: From an institution whose manifest function in the past was to display and reproduce indigenous high rank, it had been transformed to function manifestly to conserve threatened natural resources, its latent function in the past (Acciaioli 2009). Revitalization of Lindu adat thus exemplifies constitutionality, as To Lindu were able to transform local custom into a newly constituted institution of resource management.

However, unlike the more equal footing of negotiating in the two proceeding African cases, the migrant Bugis were initially involved only in acknowledging this arrangement. However, having suffered the results of the fish depletion even more intensively than the To Lindu, given that their major livelihood was commercial fishing, the Bugis have acceded to adat council restrictions on fishing. Since its refunctionalization, compliance with ombo declarations has been high across all the constituencies of the Lindu plain, with only one Bugis fisher and one indigenous To Lindu fisher being sanctioned by the adat council in the first two years of its reempowerment. With the consequent declaration of Lindu as a conservation subdistrict in 2007, migrants were officially recognized as potential members of the council, marking another significant transition from mere revitalization to innovation in the ongoing process of constitutionality.

Although the indigenous and migrant inhabitants of the Lindu plain continue to exemplify a “plural society,” living in separate communities that meet primarily in the marketplace (Furnivall 1944; Acciaioli 2009), the transformation of the status of adat—its recasting as a community resource management system and the reconstitution of its membership range—exemplifies how the operation of constitutionality can lead to changed patterns of cooperation in resource management. The Lindu case demonstrates how the processes of acknowledgment and adherence can gradually lead to fora with more inclusive membership. It also exemplifies the role of outside agencies in catalyzing the process of constitutionality, in this case TNC and other NGOs involved in brokering CCAs reorienting the local customary councils to a resource management role. The importance of conducive governmental frameworks enabling political initiatives at the local level is also evident in the accommodation of co-management by the Lore Lindu Park management authority and the larger national framework of decentralization and regional autonomy that has facilitated the devolution of power to local levels.

Case Study Bolivia: Development and Formalization of Common Forestry Management in the Andes (Ayopaya)

In the highland region of Ayopaya in Bolivia (ranging from 1400 to 3400 m in altitude) 98% of the inhabitants belong to the Quechua ethnic group. They are organized into 150 communities sharing land and natural resources based on a collective property rights regime resulting from the land reform of 1953 that abolished postcolonial feudalism. The state redistributed land of haciendas to indigenous people by granting collective land rights if they organized themselves into rural syndicates (sindicatos); despite being prescribed by the state, in terms of internal functioning the sindicatos relied on the informal institution of the “community” maintained and defended since colonization started. Despite colonization this institution has represented principles of precolonial social organization up to the present; reciprocity, complementarity, and consensus making remain of basic importance. Internal legitimation of access to and distribution of collective land is based on fulfilling duties and obligations of the families toward the community as a whole, rather than just by claiming to be one of the individual holders of collective land rights (Ticona and Albó 1997; Izko 1986). The community is still a basic feature of social organization, although nowadays the focus is not on collective land titles, but on how to achieve higher territorial and political autonomy in and from the state (Bottazzi and Rist 2012).

Despite collective land titles, land was not managed collectively, but based on individual usufruct rights granted by the communities to the families organized in the sindicatos. At an informal level this led to a duality of collective property and individual usufruct rights. While the land itself in formal terms was inalienable, the informal “private” usufruct rights to this land were practically alienable within the communities; these rights could be sold, mortgaged, and passed across generations as an inheritance, but only among community members. A smaller proportion of the haciendas’ properties were patches of highly valued native pine forests granted as private property to the sons of the landlords. The landlords who either “donated” or sold their private property rights over these resources to individual community members received in return timber, animals, or labor that they should provide for community work. This led to a threefold pluralism in the institutional arrangement of land and natural resource governance involving collective property, informal individual usufruct rights, and formal private property rights (Schilling 2012).

Population growth witnessed the rise of new necessities and opportunities. Improvement of transport facilities led to urbanization of the municipal capital of Independencia, resulting in better education and the presence of NGOs and political and religious organizations. Consequently, the use of agricultural lands expanded, and an increasing proportion of the formerly dispersed population started to concentrate in the villages. Trade and other market relations and the use of external inputs increased the articulation of local production with national markets (Schilling 2012). Therefore, relative prices for goods, especially of forest land for timber exploitation, were rising, and these areas became economically more attractive. Privately owned forest areas could not formally be governed by the communities, which had decided to start protecting their own community forests by adopting rather strict norms.

The challenge was thus how to expand these new collective institutions to cover the private properties that some community members had been acquiring. An important justification for this project was to revitalize the notion of the forest commons that had been observed through precolonial Inca rule, based on the discourse that the forest can only belong to “Mother Earth” (Pachamama). Conserving forests was perceived primarily not as a biological but as a cultural–spiritual imperative. Despite internally established local institutions sanctioning deforestation, the community was incapable of enforcing these in the private forests owned by the alliance of richer, more powerful families who had often “inherited” or “bought” use rights to private forest patches from the sons of the landlords (Schilling 2012) and were constantly violating the regulations of the community. Transaction costs for formal law enforcement were too high, and trust in the state was low.

The right to decide at the local level how to use and conserve natural resources was aligned with the agenda of conservation NGOs and justified in a local interpretation of a rather consistent law of decentralization approved in 1994. However, the communities had also learnt that the conservation discourse was a powerful weapon used by external actors (NGOs and the state) for influencing institutional arrangements regarding resource use and for becoming a paramount intermediary between the state and the communities. Therefore, they decided to create their own NGO, an innovative move exemplifying the process of constitutionality. Together with some political activists, local community members created an NGO called the “Foundation for Self-Determination and the Environment” (Fundacion para la Autogestion y el Medio Ambiente or FUPAGEMA), which they organically controlled through the authorities of the sindicatos.

FUPAGEMA provided the platform on which the different actors in conflict or tension could meet, come to a common definition of the problem of deforestation, and jointly find solutions. This NGO helped the communities to start negotiating with the municipality for the recognition and extension of community rules and sanctions to all categories of land and forest owners. As a result, in 1995 FUPAGEMA, with community consent, denounced four community members for transgressing community norms of forest protection on their private lands at the subprefecture, which detained and fined them, obligating them to plant 1000 pine and eucalyptus trees in community lands. This example reduced transgressions dramatically and led to the establishment of a new form of sanctions drafted in a bottom-up process by communities that were protecting forests in community and private land. The general rule was established that for each tree that was cut or burned without community assembly permission, transgressors would have to plant at least 10 new trees (Schilling 2012).

Although enforcement was initially difficult, the system received strong support after the election of Evo Morales. A massive popular mobilization, “Movement Towards Socialism” (MAS), had already developed before this election, filling the gap left by the collapse of traditional political parties after 2003. Before Evo Morales come to power in 2006, many communities had created the basis for bringing the local branches of MAS into power in their municipalities (Kohl and Farthing 2009). By developing MAS in this way, locals could gain more power in the municipalities and create autonomous and democratically more legitimate systems of self-governance within the communities, challenging the bargaining power of the richer families. This move allowed the locally crafted forestry institutions to be fully recognized and effectively enforced, as communities could now depend upon the municipality for help in enforcement.

Discussion

All these case studies show similarities and differences in the working out of the process that we call constitutionality, for which preconditions are (a) emic perception of need of new institutions, (b) participatory processes addressing power asymmetries, (c) preexisting institutions, (d) outside catalyzing agents (fair platform), (e) recognition of local knowledge, and (f) higher-level state recognition as summarized in Table 1. All case studies involve power asymmetries, in some cases provoked by historical developments, and in others by immigration fostered by colonial or postcolonial processes, which have led to heterogeneous interests in groups and between groups that have rendered the management of forestry and fishery sectors difficult. All the cases also show how forest and fish resources gain in value due to external factors, leading to their appropriation by more powerful actors. The basis for constitutionality is then the recognition by a larger set of local actors that the resource basis is overused, leading to fewer resources available for them because others have a higher, unsustainable appropriation rate—immigrant fishermen in Zambia, loggers and charcoal traders in Mali, immigrant Bugis fishermen in Indonesia, richer households in Bolivia.

Table 1. Components of constitutionality in the case studies

Case study/components	Kafue Flats floodplain, Zambia	Tarabé River, Mali	Lindu highlands, Indonesia	Ayopaya highlands, Bolivia
Emic perception of factors creating need for new institutions	In-migration and resource (e.g., fish) depletion; loss of access to resources to those claiming access rights by citizenship	Outsiders claiming forest access on the basis of citizenship	In-migration and resource (e.g., fish) depletion	Richer, more powerful families transgressing forest regulations; increased population concentration production for national markets
Participatory processes addressing power asymmetries, giving a sense of ownership	Collaboration to create discussion platforms and craft written by-laws for fishing access by heterogeneous interest groups (not just the elite); reempowering of utamba	Consultation among villages; formation of association to produce written agreement on ecosystem management and conflict resolution in the form of a convention	Revitalization and codification of adat (custom) recast as community resource management system; agreement by all parties to imposition of ombo to avoid fish depletion; enlargement of membership of adat councils to allow migrant members	Revitalizing forest commons based on cultural background (Pachamama/Mother Earth); crafting of local forest regulations by formation of “own” NGO; bringing own political party (MAS) to power in municipalities
Preexisting institutions upon which to build	Traditional reciprocal access arrangements for common pool resources; utamba as river masters	Customary institutions regulating common property; water shamans	Customary institutions (e.g., adat councils, ombo restrictions)	Traditionally recognized (i.e., informal) communities (comunidades) and since 1950s the sindicatos
Outside catalyzing agents (fair platform)	Local level Department of Fisheries (DoF) staff; anthropological researchers	Near East Foundation (NEF)	Lore Lindu Management Authority; The Nature Conservancy (TNC); various Palu-based NGOs	Sequence of: conservationist NGOs; decentralization law; Movement toward Socialism (MAS); national government under indigenous president
Recognition of local knowledge of resources, creativity and social learning for new problems	Knowledge of variability of fish and breeding dynamics, mixed technology, institutions solving problems of cooperation and coordination; interaction with floods and other resource uses	Knowledge of cultural landscape interactions and solving equal access problems, knowledge of resource dynamics and offtake, knowledge of how to solve collective action problems	Adat as a source of “environmental wisdom,” including the sustainability functions of such adat institutions as ombo	Community knowledge of sustainable forest use relinked with images of forest self-governance from precolonial Inca notions of forests (Pachamama); recovering autonomy over forest resources (recognition of local knowledge)
Higher level recognition support and subsidiarity vs. elite capture (Ostrom's nested enterprise)	Recognition and support from local DoF and possibility of decentralized ratification (however, undermined by higher level Department of Fisheries [DoF] and state officials	Support for local conventions as a possible strategy of local resource management and tool to combat domination based on the national law of decentralization	National framework of regional autonomy, enabling formation of a Lindu Conservation District	Recognition of locally crafted forestry institutions by politically “conquered” municipality and later (2009) by new political constitution under President Morales

Interestingly, in all cases earlier common property regimes provided a preexisting order of institutions that could be drawn upon in the process of constitutionality, whether in the revitalization of customary institutions (e.g., animistic collective fishery institutions controlled by utamba in the Kafue Flats; rituals for spirits of land and water in the Tarabé floodplain; Lindu adat, including ombo) or in the development and enforcement of environmental regulation by reempowered and culturally resignified institutions (e.g., sindicatos in Bolivia based upon precolonial reciprocity, complementarity, and consensus making and supported by a discourse centered upon Mother Earth). Such institutions were established in accordance with previous political initiatives to overcome such problems as lack of recognition of local institutions by the more powerful or by in-migrants using a discourse of citizenship to claim allegiance only to laws and regulations established by the national state. This situation brought the need for a new deal within and between groups based on common interests, counteracting the differential bargaining power of groups and actors. In such contexts, adherence to local, bottom-up crafted institutions and regulations by all parties, including enforcement, was crucial to reduce the depredations caused by open access.

However, considerable challenges remain in regard to such issues as insuring inclusiveness and long-term adherence. One way to sustain commitment is to allow the different participating groups to devise their own ideas for local rules and regulations before bringing these for discussion in intergroup fora, thus allowing a sense of ownership to emerge for all the interest groups, as was most evident in the Zambian case. Thereafter, it is crucial to bring these different ideas together in a more or less neutral and open setting, a platform involving all participating groups that has often been organized by external agents (e.g., WorldFish in Zambia, NEF in Mali, TNC in Indonesia) or political movements (e.g., FUPAGEMA and MAS in Bolivia). Such a setting provides a structured context for making the new regulations that have been crafted with the participation of all actors binding for all (locals and outsiders, the disempowered and the more powerful). Of course, such locally “owned” institutions must be supported by the state, as is possible where such policies as decentralization of various sorts facilitate official recognition not only of the regulations locally crafted, but of the local knowledge that has formed the basis for such crafting. However, local actors have to face the challenge that state actors try to use “repertoires of domination” to regain control (Poteete and Ribot 2011). These case studies demonstrate how the institutions, which are both innovative but as well rooted in local traditions, arising from constitutionality—collective fishing institutions in Zambia, customary forest and fishery management in Mali, transformed adat regulations in Indonesia, Quechua forestry regulations in Bolivia—have at least begun to overcome problems of inadequate participation, unsustainable resource harvesting, and unequal distribution of resource.

Conclusion

The four case studies indicate that constitutionality emerges in a context of collective problem recognition and the harnessing of already existing organizational and cognitive-symbolic resources as social and cultural capital (Bourdieu 1977). However, this process of locally crafting institutions can only be realized when buttressed by appropriate external conditions, such as conducive market opportunities and challenges, as well as political and governance changes that allow their recognition.

As constitutionality involves new socio-organizational experiences, the process cannot simply follow preexisting rules. Rather, it requires provision of multiparty interactional spaces or platforms perceived (emically) by all groups as relatively neutral and fair and inspiring trust when trust in state-imposed frameworks has been lacking. Fulfilling this enabling condition for the emergence of new forms of social and political organization that are part of open-ended social learning processes often requires interventions by outside actors, whether NGOs, researchers, state agencies, or political leaders, who can articulate this process with the larger political and economic context and facilitate the social inscription of new institutions in by-laws, conventions, codes, and other regulations. However, these actors can only catalyze local institution building if their own interests do not become dominant and if local actors regard their presence as legitimate, as providing a fair platform in a context of different bargaining power constellations.

The role of state actors in the process of constitutionality remains crucial to realize a balance between decentralized initiatives and an encompassing state framework that accommodates such institutional decision making and crafting at local levels, in accord with such principles as decentralization, legal pluralism, and subsidiarity. State interventions must be limited to catalyzing such aspects as provision of the platform for the local constitutional process to be enacted and subsequently recognizing the legitimacy of the institutional results issuing from the process. The Bolivian case merits special interest in this regard, as the state administrators have explicitly welcomed such steps despite a decrease in their control of certain resources.

Constitutionality refers to this whole ensemble of multileveled processes in the crafting of local institutions, involving perceptions, attitudes, strategies, learning, and other dimensions, based on the principle of real though differential incorporation of all actors’ positions so that most, if not all, feel a sense of ownership of the process, resulting in a sustainable institutional setting and, finally, an underlying constitutional result, leading to more sustainable resource management than other so-called “participatory” processes.