Interactive governance for sustainable fisheries:dealing with legal pluralismSvein Jentoft1 and Maarten Bavinck2

Available online at www.sciencedirect.com

ScienceDirect

Legal pluralism creates problems as well as opportunities for

the governance of capture fisheries. As there are important

variations in the manifestation of legal pluralism as well as in

the governability of individual fisheries, their assessment is of

importance. This review paper asks how such a governability

assessment may be carried out. For this purpose we make

use of the interactive governance framework, pioneered by

Jan Kooiman and the typology of legal pluralism relations

brought forward by Bavinck and Gupta (in this issue). One

conclusion is that because of the many variations between

fisheries systems, one-size-fits-all governance solutions are

likely to fail.

Addresses1 Norwegian College of Fisheries, University of Tromsø, Norway2 Department of Human Geography, Planning and International

Development Studies, Amsterdam Institute for Social Science Research,

University of Amsterdam, The Netherlands

Corresponding author: Bavinck, Maarten (j.m.bavinck@uva.nl)

Current Opinion in Environmental Sustainability 2014, 11:71–77

This review comes from a themed issue on Sustainability science

Edited by Maarten Bavinck and Joyeeta Gupta

Received 06 June 2014; Accepted 06 October 2014

http://dx.doi.org/10.1016/j.cosust.2014.10.005

1877-3435/# 2014 Elsevier B.V. All rights reserved.

IntroductionCapture fisheries are a source of food security, livelihood

and a way of life for millions of people around the world.

They are at the same time ridden with problems due to

the fact that they depend on a natural resource at risk of

over-exploitation [1]. For this and other reasons, fishing

people are often vulnerable [2]. These are challenges that

call for more effective governance [3–5]. Still the diver-

sity, complexity and dynamics of capture fisheries are

such that governability, defined as the overall capacity for,

and quality of governance [6], is often low [7,8�]. Fisheries

are typically governed by rules and regulations which aim

at obtaining sustainability goals in a broad sense. These

are related to the ecosystem health, but also to the social

system in which social justice and human wellbeing are

important concerns.

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State agencies clearly have a role to play for fisheries to

remain healthy and productive, and may be the only actor

with the means necessary to carry it through. But that is

not necessarily always the case, not even in developed

countries. In developing countries, often former colonies,

where the majority of fishing people live [9], statutory law

exists side by side with customary law [10]. This is a state

of ‘legal pluralism’ wherein different legal systems apply

to an identical situation [11].

Bavinck and Gupta [12] argue that legal pluralism in the

aquatic domain is the result of historical evolution that

has layered legal systems one upon the other. They

present a typology of interactions as they occur between

legal systems distinguishing relations of indifference,

competition, accommodation and mutual support. This

paper enquires into these relations as they occur in

capture fisheries and into the governability of the result-

ing patterns. Our assumption is that the quality of

relations between available legal systems will affect

the governability of the whole. We review the building

blocks of a method for assessing governability in con-

texts of legal pluralism, asking how one can phrase

research questions in a manner that is both systematic

and holistic. Such an assessment, we argue, will help

strengthen the basis for more effective governance of

capture fisheries. Following an overview of the literature

on legal pluralism in fisheries, we examine the meth-

odology for assessing governability of fisheries, focusing

on the interactive governance approach, which we con-

clude is useful for systematic comparative analysis of

legal systems, in order to detect the limitations and

opportunities for enhancing governability.

Legal pluralism in fisheriesCapture fisheries are especially susceptible to legal plur-

alism as they involve a range of common pool resources:

sea and coastal space, marine resources, and market

access. Common pool resources are contested and sub-

jected to a variety of property regimes [13�]. Scholarship

on legal pluralism in this field is of two kinds: the first

makes explicit use of legal pluralism terminology and

approaches, while the second describes the same

phenomenon but employs other academic reference

points. The first set contains case studies of legal plur-

alism from different regions of the world: North America

[14�], Latin America and the Caribbean [15], Africa [16],

South Asia [17��], Europe [18] and the Pacific [19]. These

document the relationship between what is frequently

known as fisher law and state law, often delving into

Current Opinion in Environmental Sustainability 2014, 11:71–77

72 Sustainability science

fishing disputes and their resolution, but also considering

new developments such as certification [20]. This set of

writings also includes meta-analyses of larger geographi-

cal regions, relating the origin of legal pluralism to pro-

cesses of industrialization and globalization and to the

development of modern industrial fisheries next to a

traditional small-scale sector [21,22].

The second set of studies documents the existence and

character of customary law in fisheries, often emphasizing

its continued relevance for management [23–25]. An

offshoot thereof focuses on the community based and

co-management of fisheries, assuming that customary

users and the government have a say in rule-making

and implementation [26–29]. Sea tenure, and the terri-

torial use and property rights of fishing communities

with regard to their fishing grounds, is a special theme

of study [30].

The relevance of customary law for fisheries governance

is contested, with one faction arguing that such law is

inappropriate for reasons of declining authority, restricted

scientific validity and limited geographical scope, while

the other emphasizes the adaptive character of fisher law,

its basis in local knowledge, and its legitimacy at the

beach-level [31]. However, the value of state law with

regard to sustainability is regularly challenged. Very little

work has been done on the implications of conditions of

legal pluralism for fisheries governance, with some excep-

tions [17��,27].

The first set of studies mentioned above provides the best

opportunities for an assessment of relations as posited in

Bavinck and Gupta’s paper [12]. Comparative studies on

legal pluralism in South Asian fisheries demonstrate that

although all four types may actually prevail in a given

region, specific fisheries are often characterized by one

type or the other and may actually shift over time

[17��,27]. Thus, whereas Gujarat (India) fisheries suffer

from indifference between government and fisher organ-

izations, and their attitude toward cooperation is ‘defea-

tist’, competition and ongoing conflict currently wrecks

relations between the parties in the fisheries of Goa

(India). Fisheries in Hambantota District (Sri Lanka)

and Andhra Pradesh (India) on the other hand display

a measure of accommodation between legal systems,

whereas legal patterns in parts of Tamil Nadu and Kerala

(both India) tend toward mutual support. Other factors

apparently intervene to generate different patterns at

other times and places.

Studies illustrate and verify the reality of the various

types, while noting the availability of hybrid and shifting

forms. Thus, while West African fisheries provide

evidence of accommodation between state and fisher

regulatory systems [16], South Africa has a harsh history

of legal conflict over coastal fishing. However, more

Current Opinion in Environmental Sustainability 2014, 11:71–77

recently — with the adoption of a new constitution

(1998), which recognizes customary law — the legal pat-

tern also offers opportunities for explicit collaboration

[32,33]. Caribbean fishing villages present evidence of

delicate and multifarious interactions between the ‘law of

the streets’ and the ‘law of the courts’ [34], while Parlee

and Wiber [35] refer to the problems that have emerged

between multiple regulatory frameworks in the Bay of

Fundy, and argue that the Marine Advisory Committee,

that was established to bridge them, has not proceeded

beyond the phase of ‘accommodation’. Bavinck [21] dis-

cusses the conflicting relationship between small-scale

and industrial fishers in the developing world in terms of

incompatible sea tenure systems. Moving beyond this,

some scholars point out that the state rather than seeking

collaboration with non-state legal actors, has often joined

hands with business interests and strived to eliminate

other parties and their legal perspectives. This has argu-

ably reduced governability as rules and regulations have

been introduced that do not fit well with prevailing social

and ecological systems.

The variety of legal pluralist situations in capture fish-

eries raises queries about the appropriate governance

approach. A relationship of indifference between legal

systems will thus, for example, necessitate a different

approach to that where a relationship of conflict, accom-

modation or mutual support is involved. We argue that

governance must be tuned to the nature of the empirical

situation at hand, including the relations that exist

between legal systems. The remainder of this paper

enquires into the tools available to judge the extent

and depth of legal pluralism, and the interactions that

take place between legal systems.

Conceptual issues in governabilityassessmentLegal pluralism studies have not (yet) generated diag-

nostic tools to analyze relationships and interactions in a

comparative perspective and provide governance recom-

mendations, although some steps have been taken in this

direction [12,36]. For such tools we must look elsewhere.

Applying the ‘good governance’ criteria as outlined by

the World Bank may be one way to approach this, as

when comparing and indexing the quality of governance

between states the narrow focus on government, whereas

governance in the academic literature is emphasizing the

proactive and collaborative role of non-state actors in the

governing process [36].

Interactive governance, defined by Kooiman and Bavinck

[3] as ‘the whole of public as well as private interactions

taken to solve societal problems and create societal

opportunities’ with an emphasis on the ‘formulation

and application of principles guiding those interactions

and care for institutions that enable them’ contains

elements of legal pluralism. Governance is perceived to

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Interactive governance for sustainable fisheries Jentoft and Bavinck 73

be beyond government, as it includes market as well as

civil society actors, which all belong to social fields within

which different legal principle apply and different institu-

tional arrangements exist, often in a self-governing man-

ner. However, all these parties are engaged in societal

governance, and it is their collective effort, which may be

more or less coordinated, that decides how societies

perform and evolve, for instance in the context of sustain-

able capture fisheries. The definition of governance, as it

is phrased here, would logically emphasize the role of

interaction that occurs at the boundaries of these social

fields and how different legal systems come into play with

each other. The relationships and interactions between

them may produce problems that are often inherently

‘wicked’ [17��,37,38]. But the definition of interactive

governance also encourages governors to search for the

opportunities that these different legal systems provide.

Interactive governance theory [39] divides societal sys-

tems into three parts: a system-to-be-governed, a gov-

erning system, and the interactions that take place

within and between them. Law plays a role in each,

but is centered in the governing system, which possesses

three levels, or orders (see Figure 1). From top to bottom

the set of orders include: first, values, images and

principles, second rules as well as organizations or

authorities, and third actions and governing tools. We

assume a measure of integration between orders in

any legal system. Legal pluralism provides for compat-

ibilities as well as possibilities for conflict between

governing systems at each level. We return to this in

section ‘Assessing the governing orders’.

Interactive governance theory also distinguishes three

ideal-typical modes, or styles, of governance: hierarchical

governance, which is top-down, self-governance, and co-

governance. Obviously, every legal system must belong to

one of these modes, or a mix between them. The com-

bination of governing modes in a legal pluralist pattern

results in compatibilities as well as conflict — see section

‘Assessing governing modes’ for an elaboration. Power

and its distribution are an essential part of modes, but also

of the relationship and interactions between legal sys-

tems. Borrowing from Rapoport [40], we distinguish

symmetrical from asymmetrical relations. The latter is

Figure 1

System propertiesDiversityComplexityDynamicsScale

Governing system

Governinginteraction

Interactive governance model.Source: Jentoft and Chuenpagdee (2009).

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characterized by important power differences and by the

dominance of one legal system over others. We return to

the importance of symmetry and its opposite in section

‘Assessing symmetries’.

Interactive governance theory is particularly concerned

about the governability of, in this case, fisheries and

aquatic systems, recognizing that there are limits to

how governable these systems are and that the normative

principles of ‘good governance’ are sometimes hard to

attain, at least to the full. Exploring where and what

these limits are and to what extent they can possibly

be overcome, is an important research issue. Interactive

governance theory holds that such an assessment must

look into the communication that takes place between

the governing system and the system-to-be-governed.

Although the limitations may reside within or between

the various governing institutions that may simply be too

weak or ‘soft’, they may well experience obstacles among

those whom governance interventions are targeting. Fish-

ers for instance have a reputation for resisting interven-

tion as they cherish the freedom to go wherever they like

to fish, use the gear they find most suitable, and stop

fishing whenever they feel that they have what they want

or need. To make fishers comply with outside rules is

therefore often a challenge from a resource sustainability

and legal pluralism perspective. In the words of Foucault

[41–43], resource users possess ‘governmentality’ that

facilitates or impedes the governing institution perform-

ing its role.

If the governing system, the system to be governed and

the governing interactions is where you look — and inter-

active governance suggests that one needs to look into all

three — what exactly is it that you should look for?

Interactive governance theory identifies four properties

that characterize all three systems: diversity, complexity,

dynamics, and scale. The latter property (scale) is about

system boundaries and the linkages and interactions that

occur at the boundaries of different systems, such as

between fisheries, communities and the state.

Thus, as far as components are concerned, one would look

for the legal principles and rules that exist and what social

values and norms are underpinning them. Second, one

System variablesComponentsRelationshipsInteractionsBoundaries

s

System to-be-governed

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Current Opinion in Environmental Sustainability 2014, 11:71–77

74 Sustainability science

would seek to identify how these principles and rules

connect in patterns of differing complexity. Third, the

attention would be on the actions and interactions they

give rise to, for instance how legal differences are sorted

out and accommodated at the level of the individual, the

community or the state [17��]. Finally, one would scru-

tinize the scale at which law is played out, that is, its

particular jurisdiction. More specifically when investi-

gating the limits and opportunities of governability, inter-

active governance targets both the ‘orders’ and ‘modes’ of

governing, as defined below.

Assessing the governing ordersInteractive governance distinguishes between three

‘orders’ of governing, starting from the meta-order. This

order includes the values, norms and principles that

underlie governance. These are ethical at their core,

and represent what Donnelly [44] calls ‘rectitudes’, that

is, the perceptions that exist within a particular social field

and among groups of people about what is right and

wrong, what is morally acceptable or not. Deep down

they rest on certain ideas of how the world works, and

should work, and what may be the reason for a disparity

between the two. The FAO’s Code of Conduct for

Responsible Fisheries (http://www.fao.org/docrep/005/

v9878e/v9878e00.htm) belongs in this category. Although

the Code is not binding, it is meant to inspire policies that

lead to legal reform in accordance with human rights.

However, values, norms and principles are foundational

for governance at any level, from the global to the local.

Fisheries cooperatives are for instance designed according

to the classic Rochdale principles (http://en.wikipedia.

org/wiki/Rochdale_Principles). These are ethical prin-

ciples whose concerns are not just economic development

but also social justice.

The ‘second order’ consists of the institutions of govern-

ance, be they the legal rules and or the organizations that

have it as their mandate ‘to care for them’. In fisheries

such rules are often about entitlements; the rights that

people have, for instance to access resources. Access

rights are fundamental from a conservation and sustain-

able development perspective. They are also an essential

condition for food security and poverty alleviation [45],

concerns that are key elements of sustainable develop-

ment concept [46]. In small-scale fisheries access rights

often have a deep history, as with ‘adat’ law in Indonesia

[24] or caste law in South India [47]. Community organ-

izations such as cooperatives often carry a governance

function that must be included in the governability

assessment too. Their absence or dysfunction may ham-

per governability.

The first order of governing is about the day-to-day

actions taken by governors, sometimes unilaterally, often

interactively. For legal pluralism as ‘living law’, the focus

would be not only on how governors, much like Lipsky’s

Current Opinion in Environmental Sustainability 2014, 11:71–77

[48] street-level bureaucrats, adjust rule to the situation at

hand, but on how people respond to rules [49]. Given

legal pluralism, as a situation where different legal sys-

tems apply to the same situation or society field, one

would expect confusion on the part of both the maker and

taker of rules. An issue to look out for is how different

legal systems put people in a double bind, whatever they

do they break one rule when they abide with another, or

when a person due to the often tacit nature of legal norms

break a rule without knowing it. How governing systems

respond to such violations would be an obvious govern-

ability research question for this order of governing.

A governability assessment of fisheries governance systems

characterized by legal pluralism would imply a comparative

analysis of the legal systems for all three orders, searching

for symmetries and asymmetries that cause conflicts or

commensurabilities (see section ‘addressing symmetries’

below). One may not expect to sort out differences easily,

particularly if there are dissonances between the different

levels. For instance, one cannot expect state and customary

institutions to be mutually supportive if at meta-order

there is conflict, for instance with regard to basic world

views. Nor can one expect compliance to first order

actions if these contradict the values, norms and principles

in the meta-order if the second order institutions are not

consistent with the higher orders [50]. In both instances

governability problems are likely to occur.

Assessing governing modesBy governing modes, interactive governance theory

means to imply the different styles of decision-making

and implementation (see section ‘Conceptual issues in

governability assessment’). All governance modes involve

interaction in one form or other. Any legal system,

whether statutory or customary, may employ the different

modes, or a mixture of them. Fisheries are no exception to

this rule. In the hierarchical mode, it is the command-and-

control approach that dominates. This mode characterizes

many state governing efforts, but is employed by other

governing actors too. Here, stakeholders, be they fishers

or other fish workers, find themselves at the receiving end

of the chain of decision-making—and mostly in a reactive

role. They do not themselves initiate or steer governance,

but are the objects thereof.

In the co-governance mode, state, market and civil

society actors cooperate and share responsibilities

through a two-way traffic system organized as a partner-

ship. In fisheries, this governance mode has often become

perceived as the solution to the problems that are

inherent in the hierarchical mode when it comes to

transparency, legitimacy and compliance [29]. It involves

a degree of stakeholder autonomy in the design of institu-

tions and the elaboration and enforcement of rules.

Within this governing mode, legal pluralism is especially

likely to occur.

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Interactive governance for sustainable fisheries Jentoft and Bavinck 75

Self-governance, as with community-based fisheries man-

agement and tenure, is expected to generate multiple

legal systems, as they will tend to be specific for local

situations. In fact, one may expect, at the extreme, to have

a situation where each fishing community has its own

legal system that may differ from that of others. For

fishers, whose geographical mobility is high, this may

cause a problem. These legal differences may be

explained by purely contextual particularities, be they

natural, social, cultural or political. Where there is a mix of

legal systems employing different modes of governing,

collaboration becomes difficult, as when statutory law is

hierarchically implemented and enforced, and a custom-

ary legal system that can be employed for the same social

field is of a self-governing mode. Such a situation is likely

to be ridden with conflict that may divert energy from

problem solving and opportunity creation.

Assessing symmetriesFor scholars applying an interactive governance perspect-

ive the incidence of symmetry and asymmetry between

legal systems and their representatives is an important

concern that should be investigated for all governing

orders (see Figure 2). Symmetry is of two kinds, referring

to substantial coherence between orders on the one hand,

and power difference on the other. Where norms, values

and principles are compatible, where institutions are

isomorphic, and where legal procedures are similar, there

are obvious opportunities for avoiding conflict and

realizing mutual support. Where governing orders differ

Figure 2

Governing orders RelationshInteraction

Statutory

SymmetrAsymme

SymmetrAsymme

SymmetrAsymme

− Meta-order

− Second-order

− First-order

• Values,norms andprinciples

• Institutions

• Action/tools

Interactive governance perspective on legal pluralist systems.

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legally, the opportunity for arbitration, harmonization and

cooperation is obviously less.

Power is always an important factor in governance, con-

tributing to the realization of the aims and the imple-

mentation of law [51], as well as to conflict, inequalities

and injustice. Legal systems function through the allo-

cation of powers over decision-making, adjudication and

implementation [8�]. They may, however, be impaired

by disagreement and power struggle. In contexts of legal

pluralism, power differentials between legal systems

and the people that adhere to them obviously influence

the course of events [40,52], and thus, by implication

governability.

Still, where asymmetry exists, symmetry can be fostered.

Values, norms, principles, institutions and legal practice

may well be stable and routinized creating inertia, but

they are not written in stone. Neither are power differen-

tials. Interactive governance theory is concerned with the

dynamics of governance systems, including the inter-

actions that lead to change. Different and conflicting

worldviews can be harmonized through constructive inter-

action and dialogue, especially if it is backed up by power,

as power can be the enabling force that creates the oppor-

tunities that interactive governance is also focusing on. It is

for this reason that proponents of co-management argue for

the ‘empowerment’ of weaker parties, as constructive

interaction can hardly take place if the playfield is not

leveled [53]. In reality state law is often dominant and even

ips/s

y/try

y/try

y/try

Customary

Governing modes

− Hierarchicalgoverning

− Co-governing

− Self-governing

• Values,norms andprinciples

• Institutions

• Action/tools

Current Opinion in Environmental Sustainability

Current Opinion in Environmental Sustainability 2014, 11:71–77

76 Sustainability science

hegemonic [54]. Where state law dominates, as Tamanaha

[55] points out, state agencies may still respond differently

to other legal systems, varying from neutrality to repres-

sion. Those involved in other legal systems may respond

in kind, accepting subjugation but alternatively choosing

to revolt. Hybridization of law and the development of

inter-legality are other possible outcomes.

ConclusionThis review paper has enquired into the methodology for

assessing the quality of relationships between legal sys-

tems in a context of capture fisheries, and into the

implications for governance. The starting point was that

legal pluralism inspires the researcher to search for legal

systems that may be operative in a particular social field,

which may or may not be mutually compatible. The

research question is what happens when multiple legal

systems make contact, how conflict may occur or syner-

gies may emerge, and how it may facilitate or hamper

governability.

Bavinck and Gupta [12] distinguish four ideal types of

relationships between legal systems, and suggest govern-

ance approaches for each type. While this typology prob-

ably requires further refinement, it does raise relevant

research questions as to how relationships between legal

systems are in concrete settings, and about the effects of

specific governing interventions. We note the lack of

diagnostic tools and specifically point out the relevance

of the interactive governance approach. This approach

highlights the role of relationships and interactions in the

context of a broader analysis of fisheries systems and their

governability.

Improving the governability of fisheries systems

depends on a full understanding of the complexity of

the interactions that take place. Simplistic, one-size-fits-

all governance solutions are likely to fail, given the

diversity, complexity, dynamics and the multiple scales

that are involved. The multi-faced problems, which

occur at the interface of social and environmental sys-

tems, require approaches that take account of legal

pluralism and its many variations. Interactive govern-

ance offers an analytical lens that allows systematic,

comparative analysis of legal systems, which may help

to detect where the problems and opportunities for

enhancing governability lie.

References and recommended readingPapers of particular interest, published within the period of review,have been highlighted as:

� of special interest�� of outstanding interest

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