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M. Bavinck and J. Kooiman
ethnic groups, communities, and professions.
3 Collective action theory (Ostrom
1990 ) inquires how such legal systems can emerge in the daily practice of fi shing.
A rich body of literature has emerged on institutional arrangements, which have
developed from the bottom up, both in the North and in the South.
Adding a new institutional layer on top of pre-existing non-state legal systems,
state agencies in many countries have extended their jurisdiction over fi sheries in
response to their increasing pro fi tability, environmental problems and associated
social con fl icts ( Bavinck 2011a ) . Governments have expanded their range of instruments, including law, to deal with these new concerns. The result is the co-existence
of multiple legal systems in fi sheries.
Legal pluralism is essentially about diversity, or difference. However, not all
situations of legal pluralism are equally ‘different’. In some cases the state has come
to dominate other legal systems, whereas in others it is met with substantial opposition. There are cases too that have culminated in institutional ‘bridges’ – forms of
co-management that link state with non-state legal systems. The meeting of different
bodies of law has often also resulted in ‘institutional bricolage’ (Cleaver 2002 ; Kraan
2009 ) and in the development of hybrid law. In short, one can distinguish between a
variety of legal pluralist situations in fi sheries, which can be posited to occur on a
scale running from monopoly to strong differentiation. Jentoft et al. ( 2009 , note 3)
refers to these as instances of ‘weak’ versus ‘strong’ legal pluralism.
Legal pluralism has important implications for governance. Where pluralism is
extreme, governors can be expected to be at loggerheads. They disagree about the
substance of law, about procedures, as well as about the question who is ultimately
in charge. Where differences are small and governors agree about most matters of
substance and procedure, on the other hand, the path to governance is smoothened.
Complexities of Nestedness and Scale
We owe the term nestedness to Simon (see Hill and Fujita 2003 ), who introduced
the image of the Chinese boxes. He observed, “Opening any given box discloses not
just a new box within but a whole set of boxes; and opening any of the component
boxes discloses a new set in turn.” Nestedness is now considered an important feature of complex systems, both human and natural. It has been applied to cities
(Hill and Fujita 2003 ), forests (Beckley 1998 ) , fi sheries (Jentoft 2004 ) , environmental
governance (Young 2002 ; Marshall 2008 ) , and more generally to the study of institutions (Ostrom 1990, 2005 ; Hollingworth and Boyer 1998 ) .
Important for our purposes is the conceptual relation between scale, level, nestedness and hierarchy. We view the analysis of governance and governability of a speci fi c
system as a choice of level in a hierarchy of nested systems. In exclusive hierarchies
levels are not nested within one another – the higher level does not contain the
3 See, for example, Bavinck ( 2005 ) , Jentoft et al. ( 2009 ) , Wiber and Kearney ( 1996 ) , and Wylie
( 1989 ) .
M. Bavinck and J. Kooiman
ethnic groups, communities, and professions.
3 Collective action theory (Ostrom
1990 ) inquires how such legal systems can emerge in the daily practice of fi shing.
A rich body of literature has emerged on institutional arrangements, which have
developed from the bottom up, both in the North and in the South.
Adding a new institutional layer on top of pre-existing non-state legal systems,
state agencies in many countries have extended their jurisdiction over fi sheries in
response to their increasing pro fi tability, environmental problems and associated
social con fl icts ( Bavinck 2011a ) . Governments have expanded their range of instruments, including law, to deal with these new concerns. The result is the co-existence
of multiple legal systems in fi sheries.
Legal pluralism is essentially about diversity, or difference. However, not all
situations of legal pluralism are equally ‘different’. In some cases the state has come
to dominate other legal systems, whereas in others it is met with substantial opposition. There are cases too that have culminated in institutional ‘bridges’ – forms of
co-management that link state with non-state legal systems. The meeting of different
bodies of law has often also resulted in ‘institutional bricolage’ (Cleaver 2002 ; Kraan
2009 ) and in the development of hybrid law. In short, one can distinguish between a
variety of legal pluralist situations in fi sheries, which can be posited to occur on a
scale running from monopoly to strong differentiation. Jentoft et al. ( 2009 , note 3)
refers to these as instances of ‘weak’ versus ‘strong’ legal pluralism.
Legal pluralism has important implications for governance. Where pluralism is
extreme, governors can be expected to be at loggerheads. They disagree about the
substance of law, about procedures, as well as about the question who is ultimately
in charge. Where differences are small and governors agree about most matters of
substance and procedure, on the other hand, the path to governance is smoothened.
Complexities of Nestedness and Scale
We owe the term nestedness to Simon (see Hill and Fujita 2003 ), who introduced
the image of the Chinese boxes. He observed, “Opening any given box discloses not
just a new box within but a whole set of boxes; and opening any of the component
boxes discloses a new set in turn.” Nestedness is now considered an important feature of complex systems, both human and natural. It has been applied to cities
(Hill and Fujita 2003 ), forests (Beckley 1998 ) , fi sheries (Jentoft 2004 ) , environmental
governance (Young 2002 ; Marshall 2008 ) , and more generally to the study of institutions (Ostrom 1990, 2005 ; Hollingworth and Boyer 1998 ) .
Important for our purposes is the conceptual relation between scale, level, nestedness and hierarchy. We view the analysis of governance and governability of a speci fi c
system as a choice of level in a hierarchy of nested systems. In exclusive hierarchies
levels are not nested within one another – the higher level does not contain the
3 See, for example, Bavinck ( 2005 ) , Jentoft et al. ( 2009 ) , Wiber and Kearney ( 1996 ) , and Wylie
( 1989 ) .