Browsing by Author "Pradhan, Rajendra"

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Legal Pluralism and Dynamic Property Rights
(2002) Meinzen-Dick, Ruth; Pradhan, Rajendra
"Conventional conceptions of property rights focus on static definitions of property rights, usually as defined in statutory law. However, in practice there is co-existence and interaction between multiple legal orders such as state, customary, religious, project and local laws, all of which provide bases for claiming property rights. Legal anthropological approaches that recognize this legal pluralism are helpful in understanding this complexity. Individuals may choose one or another of these legal frameworks as the basis for their claims on a resource, in a process referred to as 'forum shopping.' Legal pluralism can create uncertainty especially in times of conflict because any individual is unlikely to have knowledge of all types of law that might be relevant, and because rival claimants can use a large repertoire to lay claim to a resource. However, at the same time the multiple legal frameworks facilitate considerable flexibility for people to maneuver in their use of natural resources. Legal pluralism also introduces a sense of dynamism in property rights, as the different legal frameworks do not exist in isolation, but influence each other, and can change over time. Unless these aspects of property rights are recognized, changes in statutory law intended to increase tenure security may instead increase uncertainty, especially for groups with less education and contacts. This paper illustrates the implications of legal pluralism for our understanding of natural resource management and policies toward resource tenure, using the example of water rights."
Negotiating Access and Rights: A Case Study of Disputes over Rights to an Irrigation Water Source in Nepal
(Draft, 1997) Pradhan, Rajendra; Pradhan, Ujjwal; Meinzen-Dick, Ruth; Bruns, Bryan
"Nepal has a long history of irrigation but until the middle of this century direct involvement of the Nepalese state in irrigation management and development was limited except when it benefitted the ruling elite. Although the state did construct or finance the construction or repairs of irrigation systems and managed or supervised the management of some systems, its main contribution to irrigation development was by means of laws and regulations which encouraged and sometimes forced local elites and ordinary farmers, usually tenants, to construct and operate irrigation systems. Legal tradition and weak administration made it possible and necessary for the irrigators to construct and manage their irrigation systems with little interference from state agencies."
Staking a Claim: Politics and Conflicts between Statutory and Customary Water Rights in Nepal
(1997) Pradhan, Rajendra; Pradhan, Ujjwal
Subsequently published as: Pradhan, Rajendra, and Ujjwal Pradhan 1996. "Staking a Claim: Law, Politics and Water Rights in Farmer Managed Irrigation Systems in Nepal." In, Joep Spiertz and Melanie G. Wiber (eds.) The Role of Law in Natural Resources Management, pp 61-76. The Hague: VUGA Uitgeverij B.V. This is a special issue of Recht der Werkelijheid, published from the Netherlands by the same publisher (VUGA). "This paper explores two sets of issues: first concerning the consequences of state intervention and the second concerning the significance of law, for water rights. It discusses the (un)intended consequences of state intervention in farmer managed irrigation systems for water rights: the customary rights of the existing rights holders are no longer secure and made secondary to state rights. Further, opportunities are provided for new claimants to stake claims to water rights in irrigation systems or water sources from which they had been excluded. "The second set of arguments concerns the significance of law and the relation between law and social relations in staking claims, conflicts and disputes, and alteration of water rights arrangements. Law confers legitimacy to claims and rights but it does not by itself guarantee or alter water rights. Further, the question is not only whether to use law but which law to use and how and where claims are to be asserted. In legal plural situations, claimants can use different legal orders and normative repertoires (customary law, state (statutory) law) and different forums to justify, assert or protect their claims. Whether and how claims are made, accepted, disputed, or water rights arrangements altered depend not only on law but equally, or more importantly, on social relations between the claimants (relations of power, political rivalry, patronage, kinship ties, etc.). The claimants are influenced more by 'political' considerations than purely legal ones in their selection of law and methods to assert and protect their claims. "The paper briefly reviews the relation between state and locality in the development and control of water resources, especially for irrigation, and several water rights related state laws. This is, followed by a discussion of claims, claimants and the normative repertoires (law) used to justify claims. We then describe several cases of conflicts and disputes between different claimants to property and water rights in a water source and an irrigation system. The concluding section discusses some issues raised by the case study concerning water rights and the study of water rights."