State Law versus Village Law: Law as Exclusion Principle under Customary Tenure Regimes

Abstract

"The paper is based on fieldwork among the agro-pastoral territory of Jalloube - in the north central in-land delta of the Niger River in Mali. These Fulani groups control the largest remaining wetland pastures of West Africa. A main concern of the paper is to discover how customary property rights regimes interact with the regimes the state administration (or those who control it) tries to impose. The traditional tenure regime with roots in the Dina state (1818-62) is today under pressure from a variety of processes originating both in the political and the ecological system. The result is increased pressure on the resources. This is most visible in the enclosure of the common floodplain areas suitable for rice growing as well as a critical pasture for the Fulani during the dry season. These wetlands also have global environmental interests attached to them. The paper outlines both the customary system of rights to cattle and access to pasture, and the existing theory of property rights as enacted by the state. The system is very diverse with all levels of control ranging from open access to full private inheritable property. There is a variety of conflict areas depending on the choice between state and customary law as well as its interpretation. This fluidity in rules opens a field of action for political manoeuvres and ambiguous decision-making by officials and administrators. A lack of genuine dialogue between state officials and community leaders over resource conflicts undermines the legitimacy and authority of both state officials and customary leaders necessary for long term strategic resource management. One problem for the state is that the diversity of customary rights is difficult to match in substantive statutory law. It is suggested that the state should put more effort into developing appropriate legal procedures for resolving conflicts equitably rather than trying to impose its own system of property rights."