Environmental sustainability and legal plurality in irrigation: the Balinese subak

Environmental sustainability and legal pluralityin irrigation: the Balinese subakDik Roth

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1 I prefer using ‘plurality’ and ‘plural’ to ‘pluralism’ and ‘pluralist’, to

avoid giving the impression that we are dealing with an ideology

celebrating the plurality of legal systems.

This paper reviews the literature on subak irrigators’ institutions

on the Indonesian island of Bali, with special reference to legal

plurality and environmental sustainability. The subak is well

known in irrigation studies as a strong and effective institution.

Therefore it is relevant to investigate it under conditions of

change. The growth of tourism and other developments have

put Balinese irrigated agriculture under severe environmental

pressures. In this paper I argue that, in response to these

pressures, new forms of governing irrigated landscapes,

notions of social-environmental harmony and sustainability,

and ways of shaping farmer behaviour are emerging. These

changes entail new forms of legal plurality, both localizing and

globalizing, and new framings of ‘tradition’ and ‘local

knowledge’ in relation to social-environmental problems.

Finally, they involve contestations between normative and legal

repertoires and discourses that transcend ‘water governance’

and cannot be reduced to ‘systemic’ typologies of legal

plurality.

Addresses

Wageningen University, Sociology of Development and Change,

6706KN Wageningen, The Netherlands

Corresponding author: Roth, Dik ([email protected], [email protected])

Current Opinion in Environmental Sustainability 2014, 11:1–9

This review comes from a themed issue on Sustainability science

Edited by Maarten Bavinck and Joyeeta Gupta

Received: 05 June 2014; Revised: 17 September 2014; Accepted:

28 September 2014

http://dx.doi.org/10.1016/j.cosust.2014.09.011

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

IntroductionAll over the world population growth, intensification of

agricultural production, urbanization, and industrializ-

ation increase pressures on land and water. Often this

involves competition between agricultural and non-

agricultural uses [1]. The Indonesian island of Bali illus-

trates these processes in a specific way. The island’s

popularity as a global tourist destination is creating huge

social and environmental problems [2��]. Key threats to

irrigated agriculture and the livelihoods based on it are

land conversion and transfers of water from agriculture into

www.sciencedirect.com

non-agricultural, mainly tourism-related, uses; this in

addition to the more general challenges of agriculture like

high input costs and low product prices. Over the last

decades awareness of these problems has gradually been

growing, also leading to a critical rethinking of the current

tourism-based development strategy, and a revaluation of

the role of agriculture-based livelihoods. Resilient and

time-tested institutional arrangements may be a benefit

in dealing with these processes of change. Balinese irri-

gated agriculture is famous for the irrigators’ institution

known as subak [3��]. How do these growing social and

environmental pressures work out in an age-old institution

like the subak, and how do issues of social-environmental

harmony and sustainability enter the subak domain? How

do these developments relate to issues of legal plurality?

There are still serious gaps in our understanding of the

role of legal plurality in the subak domain under the

influence of the challenges mentioned above (see also

below). In this article I provide a review of the recent

literature on the Balinese subak in relation to issues of

environmental sustainability. I aim to analyse the chan-

ging role of legal-institutional plurality in relation to

changing water rights and policies, emerging policy-pro-

pagated notions of social-environmental harmony and

sustainability, and changing values attached to irrigated

landscapes. These entail new recipes for ordering the subakdomain, new forms of governing irrigated landscapes, and

ways of shaping irrigators’ organizations and farmer behav-

iour. In the process new forms of legal plurality are emer-

ging that are both localizing and globalizing in scope.

Relating to various domains of life like politics and religion,

these tend to transcend ‘water governance’ issues per se.

Such insights, and especially how they are reached through

a focus on legal plurality across predefined ‘sectorial’

domains, also have a wider relevance for other places where

resources and existing management institutions are under

pressure of societal change, policy-making, and interven-

tion in a setting of competing political, cultural, economic,

and ecological values.

The concept of legal pluralism1 — ‘the existence of more

than one legal order or mechanism within one socio-

political space, based on different sources of ultimate

validity and maintained by forms of organization other

than the state’ [58] — was extensively discussed in the


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2 Sustainability science

introductory paper to this special issue. However, one

additional point needs to be raised here. Even if there is

agreement on the existence and socio-political signifi-

cance of legal plurality, ways of approaching and con-

ceptualizing it may widely differ. Such differences

become visible, for instance, in the existence of more

or less ‘systemic’ approaches to legal plurality. Some

authors (e.g. also Bavinck and Gupta; this special issue),

clearly stand on the systemic side, not only by referring to

legal plurality in terms of interactions between legal

systems, but also by classifying relations between such

systems in oppositional pairs that characterize these

relationships. Others, for example, Spiertz [33��], inter-

ested in the social meaning of law, focus on the social-

processual dimension of legal plurality. Using terms like

‘legal phenomena’, ‘repertoires’, or ‘discourses’ rather

than (only) ‘systems’, Spiertz, citing F. and K. von Bend-

a-Beckmann [57], makes a distinction between, on the

one hand, the existence of such repertoires that ‘hang in

the air’ [33��,57], and their mobilization in real-life social

processes on the other. Only as legal repertoires are

activated in a specific context or locality, with specific

purposes, and by specifically situated actors, their mean-

ing and working in society can really be grasped [33��].Contrary to ‘systems’, terms like ‘repertoire’ aptly convey

this element of fluidity, agency and choice, of the avail-

ability of a variety of legal options that can be activated in

specific interaction settings. In my view, the latter

approach provides us with a much better understanding

of the socio-political significance of legal plurality than

the former. In the final section of this paper I will shortly

return to this issue in relation to the typology of legal

plurality proposed by Bavinck and Gupta in this special

issue.

This paper is structured as follows: first, I describe the

context of legal plurality in Indonesia and Bali. Next I

discuss the subak and the changing ways of approaching

and studying it. After this section I illustrate aspects of

legal-institutional plurality in the subak domain, using

examples of the changing legal position of customary

irrigation systems like the subak in Indonesian water

law, new notions of local wisdom and social-environmen-

tal stability and sustainability entering the subak, and

global world heritage policies for some Balinese subakareas. I conclude this article with some remarks on the use

of typologies in the analysis of legal plurality.

The context: legal plurality in IndonesiaIndonesia is a country of great socio-cultural and religious

diversity. Its history of pre-colonial polities, colonial

expansion and state formation, and post-colonial devel-

opment has made legal plurality a major characteristic of

Indonesian society [4]. A primary domain where this

becomes manifest is the governance of natural resources.

In different legal ‘systems’ or orders resources like forest,

land and water can be differently defined as property,


often in conflicting ways (see also Bavinck and Gupta, this

issue) [5]. A major axis of differentiation along which this

takes place is between state law and so-called adat —

‘custom’ or ‘customary law’. The greater political freedom

after the fall of the Suharto regime in 1998 after three

decades of authoritarian rule, as well as the post-Suharto

policy of regional autonomy and decentralization, have

led to a remarkable social and political reassertion of the

customary domain in Indonesian politics [6,7,8�].

As historically adat is strongly linked with locally specific

notions of rights and obligations pertaining to the man-

agement and governance of natural resources, its recent

political revival has a major impact on resource govern-

ance. After decades of marginalization and dispossession

by a predatory central state that did not recognize cus-

tomary claims to resources like land, water and forest, the

political changes of the late 1990s provided an opportu-

nity for local political actors to reaffirm customary claims,

often related to regional or ‘indigenous’ identities. A

policy of decentralization and regional autonomy further

stimulated such local and regional political agendas.

However, the existence of plural definitions of rights to

natural resources often also increases legal uncertainty,

leading to legal insecurity and conflicts. Throughout

Indonesia this period was characterized by conflicts be-

tween population groups along ethno-religious lines and

between regional contenders for political power and

control of natural resources [9,10�,11]. I will now turn

to Bali and its irrigation institution the subak, the topic of

this article.

Bali is a small island, covering around 5600 km2, less than

0.3% of Indonesia’s land area. Around 83.5 per cent of its

3.6 million population are Hindus, a form of Hinduism

strongly influenced by local, non-Indian elements. Bali

also has small Christian and Islamic minorities. The wider

socio-political changes from the late 1990s have also

deeply influenced Balinese society. After exploitative

central control of resources and tourism investments, a

reassertion of Balinese cultural, customary (adat), and

religious identity followed. Decentralization and regional

autonomy were crucial in weakening central control and

strengthening regional legislation at the provincial, dis-

trict and village levels, increasing the power of Balinese

customary villages [9,11,56]. These trends of reassertion

of (Hindu-)Balinese identity were further stimulated by

two terrorist attacks and a growing awareness of the social

and environmental impacts of global tourism. This found

its political expression in the emergence in Balinese

politics of the slogan Ajeg Bali (lit. ‘Bali stands firm’), a

plea for protection and revival of ‘traditional’ cultural,

environmental and religious values against ‘external’

threats like globalization, in-migration of (often Islamic)

non-Balinese in search of agricultural and other labour

opportunities, commoditization, and loss of local control

over natural resources [12,13�,14].


Legal plurality in irrigation: the Balinese subak Roth 3

The changing focus of subak studies andtransformations in the subakThe threats to Balinese irrigated agriculture are twofold:

primarily tourism-related are land conversion, water

transfers out of agriculture and growing environmental

problems. Challenges to Asian irrigated agriculture more

generally are resource degradation, high agricultural input

prices, low prices of agricultural produce, and new (urban-

based) dreams and labour opportunities for young people.

As MacRae rightly remarks, Balinese farmers are thus

doubly marginalized [17�]. At the same time new oppor-

tunities are emerging in markets for sustainable and

organic produce [15��,16,17�]. In debates about these

processes, and in attempts to make sense of and find

policy solutions for them, the subak plays a central role.

Subak can be defined as ‘irrigation societies’ [18,19��] with

a wide range of functions, including construction, main-

tenance and repairs, agricultural scheduling and pest

control, conflict resolution, and rituals and ceremonies

related to water and rice cultivation. A subak may cover

anything between a few and hundreds of hectares of

(irrigated) fields [20]. Though increasingly threatened

by socio-environmental changes associated with tourism,

it is still a key institution for those depending on agri-

culture for their livelihoods [21,22].2

The subak is a well-documented and researched institu-

tion with a history that goes back around a thousand years.

Depending on time, form of engagement, and worldview,

different people have constructed different representa-

tions of the subak; often essentialized images based on

normative conceptions of what observers, researchers, or

officials thought it should be. Thus in colonial times the

subak became an instrument of colonial governance.

Under post-colonial modernization it became a domain

of ‘traditional’ irrigation practices to be replaced by

‘modern’ technologies of the Green Revolution. From

the 1980s it was rediscovered (and often idealized) as a

successful ‘community-based’ farmer-managed irrigation

system (FMIS), to be learned from and replicated in

irrigation development policies [23,24]. From then it

has made its entry into the resource management liter-

ature as an icon of robust local resource management

[25,26]. Anthropologists, meanwhile, created their own

images of the subak: as an autonomous ‘wet village’ [18] or

as part of a much larger self-organizing system of ecosys-

tem management through temple networks [27��,28].

Balinese researchers, increasingly involved in subakresearch since the 1980s, create their own representations,

in recent years increasingly framing the subak as an

enactment of Hindu-Balinese culture, environmental

2 Using data from the 1990s, Windia [22] estimates the number of

subak in Bali at 1611, covering around 95,000 ha. Lorenzen, using more

recent (2010) data from the Balinese Bureau of Statistics (BPS), men-

tions an irrigated area of 81,428 hectares, managed by an estimated

1200 to 1600 subak (RP Lorenzen, PhD thesis Australian National

University, 2011).


awareness, stability and ‘local wisdom’, as the basis for

entrepreneurial activities (subak berbisnis), or a cultural

buffer against the threats of globalization (e.g. [21,22,29]).

‘Discovery’ of the subak as FMIS also stimulated in-depth

research on its relationships to external interventions to

‘modernize’ these systems. These problematic encoun-

ters spurred legal anthropological interest in water rights

and their negotiation by social actors in legally plural

situations, in general and in Bali [30�,31]. The analysis of

conflicts around water technology, allocation and distri-

bution in the legally plural context of Bali proved useful.

In such approaches the subak was not idealized as ‘com-

munity’ or in terms of ‘tradition’, nor seen as an object of

intervention to formalize or ‘improve’ such systems.

Rather, it was studied in interaction settings where

various — sometimes conflicting — definitions and

interpretations may exist of subak membership and

boundaries, rights and obligations, and relationships to

government agencies, development programmes, or tech-

nical interventions [32,33��,34��,35�]. These conflicting

interpretations by various social actors in their struggles

about access, rights and obligations, or interventions, and

the power relations between them, in the end determine

what subak ‘is’ at a specific time and place.3 However,

with the recent turn to idealization of the subak as the seat

of local wisdom, social capital and social-ecological

stability, these themes have become marginal again

(see e.g. [22,29]).

Thus, accounts and studies of the subak are diverse,

involving research from a variety of disciplinary back-

grounds, different cosmologies, epistemologies and ontol-

ogies, principles, methods, and objectives. A recent

special issue of Human Ecology titled ‘Studies of the

Subak: New Directions, New Challenges’ gives an over-

view of the diversity and state of the art in subak studies. I

mention some contributions that relate most closely to

the topic of this paper. The general introduction by Jha

and Schoenfelder gives a good overview of the field

[3��]. Lorenzen and Lorenzen extensively discuss the

threats to and pressures on the subak and irrigated

agriculture [19��]. In another contribution, Straub

[2��] presents a case study on growing water scarcity

in a tail-end subak, caused by the conflicting water

demands of agriculture, tourism and private companies.

This paper is of special interest because of its focus on

conflicts around water reallocations and their impact on

a tail-end subak. In that sense it comes close to a political

ecology of water (see [15��,38]), a badly needed counter-

point to the current discursive hegemony of the subak as

expression of local (ecological) wisdom and the policy

preoccupation with protection of the tourist hotspots as

3 My own field research on the subak focused on its development,

functioning and meanings in Balinese migrant settlements in Sulawesi

[36,37�].



4 Because of its Arabic origins, the term adat was replaced by Balinese

pakraman.

‘heritage’ (see below). MacRae and Arthawiguna [39��]deal with the important emerging issue of environmen-

tal sustainability. They analyse the role of the subak in

attempts to introduce more sustainable rice cultivation.

The authors are moderately positive but warn against

generalization and idealization of the subak as seat of

‘indigenous ecological wisdom’.

Three examples of changing forms of legalplurality in the subak domainIn this section I discuss three major ways in which legal

plurality becomes manifest in the subak domain: first,

through multiple definitions of water rights and irrigation

policy; second, through emerging and partly policy-driven

notions of social-environmental harmony and sustainabil-

ity; third, through the changing meanings and valuations

of irrigated landscapes in the framework of heritage

policies, and possible property transformations related

to them. Each of these has taken shape in relation to

the pressures on land and water resources discussed in the

introduction: the first one in relation to growing non-

agricultural demand and scarcity; the second one in

relation to a history of policy attempts to control and

re-order the subak domain; the third one in relation to the

realization that tourism is such a success that it threatens

to kill the goose that lays golden eggs. Approaching these

issues from a perspective of legal plurality has some

distinct advantages: in a policy context that stresses

intra-subak harmony and unity as a solution to many

social-environmental problems it may re-focus attention

to the role of conflict around the subak domain in relation

to societal developments and attempts to deal with them

through laws and policies. Further, it may be helpful in

unpacking policies, showing their role in re-ordering the

subak and irrigated landscapes, shaping the norms and

behaviour of farmers, and creating new notions of prop-

erty [5]. Finally, it may lead to a reconsideration of the

role of law and its meaning in social processes.

Water rights, irrigation policies andinterventionsThe 1945 Constitution of Indonesia and the Water

Resources Development Act of 1974 established water

as a resource with a social function, controlled by the

national state and to be used for the benefit and welfare of

the population. The new Water Law of 2004 reaffirms this

state control of water resources. It distinguishes between

water resource uses for basic needs, and commercial uses

that need a licence (e.g. commercial uses; private com-

panies), and it prioritizes daily basic needs. It recognizes

existing customary uses as far as they do not conflict with

the developmental interests of the state [2��,40]. How-

ever, it is also criticized for giving the private sector more

room for commercial exploitation [40,41]. The detailed

but often contradictory implementing regulations at var-

ious levels of governance, the many ambivalences in the

law, the large number of government agencies involved in


regulation, inter-departmental competition for funds and

control, and the problems with implementation are sources

of legal insecurity that allow much room for manoeuvre for

such private commercial exploitation [38,40]. Notwith-

standing the law’s more integrated approach to water

resources and a focus on region and municipality, Al

Afghani sees major weaknesses concerning issues like

the acknowledgement of the right to water, hierarchy of

rights, pricing, and environmental protection [41].

With the customary village (desa pakraman)4 and hamlet

(banjar), the subak belongs to the domain of customary

law. Historically subak often had to negotiate their water

rights inside a river basin where agriculture was the most

important form of water use by far, and created their own

internal legal regulations (awig-awig). The high degree of

autonomy often ascribed to the subak (and the historical

variations in this between northern and southern Bali) is a

much debated topic in subak studies. Especially in the

kingdoms of southern Bali, the relationships between

rulers and rural populations, and later between the colo-

nial government and its subjects, were such that this

assumption of subak autonomy should be put into

perspective (for a discussion see [3��]). Nevertheless,

subak autonomy was legally recognized by Bali Province

in 1972 — a period when the availability of donor funding

stimulated growing intervention by state agencies in the

subak domain. From the late 1970s state intervention in

the subak systems for irrigation development programmes

and spread of the Green Revolution rapidly increased

[34��]. State-subak interactions at the interface of govern-

ment laws, policies, projects and water control practices on

the one hand, and the subak domain on the other were (and

are) characterized by legal plurality. Negotiations and

conflicts about rights and obligations pertaining to canals,

division works and institutions became a major character-

istic of these interactions [32,33��,34��]. In a later study,

Lorenzen and Lorenzen (2008) [35�] note similar confusion

about rights and responsibilities under the new Water Law

(No. 7/2004). Other sources of conflict and confusion are

the competing claims for different purposes by various

commercial and non-commercial users, leading to water

transfers, exclusions and scarcities [2��,15��]. Ways of deal-

ing with these competing agricultural and non-agricultural

uses seem to be ad-hoc and mediated by power and

interests rather than being based on a systematic appli-

cation of legal principles, increasingly leading to conflicts

and growing water scarcity for downstream subak [2��,45].

Emerging notions of environmentalsustainability and local wisdom: the conceptof Tri Hita KaranaWith Ajeg Bali, post-Suharto Bali saw a deeply ideological

return to ‘traditional’ cultural and religious values as the



basis of Balinese society [13�,14]. The concept of Tri HitaKarana (lit. ‘the three causes of well-being’; often

referred to as THK) came to play a key role here

[21,42,43]. THK refers to the harmonious relationships

between religious-spiritual ( parhyangan), human-social

( pawongan) and natural-environmental ( palemahan)

domains of life [43,44]. Thus THK has become a pillar

of the customary village (desa pakraman). It is mentioned

as the basis of provincial regulation like those on the

environment, spatial planning, and tourism. It has also

been mobilized to define the Balinese irrigated landscape

as ‘cultural heritage’ as well as to guide policies in the

subak domain. Though I do not doubt that the principles

expressed in THK have a strong basis in Hindu-Balinese

cosmology, this explicit prominence of THK ideology in

the subak domain is relatively new and requires scientific

scrutiny.5 It was hardly mentioned in the subak literature

(including Balinese-authored publications) before 2000,

though its role in the irrigation and environmental policy

domains goes back several decades (see below). Mitchell

(1994), for instance, shortly mentions THK as a cultural

principle of potential relevance for agendas of sustainable

development [46]. In the last 15 years, however, it has

penetrated both the administrative and policy domains,

and the (especially Balinese-authored) scientific litera-

ture in an increasingly explicit way.

In the subak domain THK is propagated as the foundation

of ‘traditional’ Balinese culture, identity and values,

sometimes including notions of environmental sustain-

ability and sustainable development [21,22,29,42]. Pitana

(2010: 147), for instance, states that ‘the concept of Tri

Hita Karana . . .. dictates the Balinese to be always in

harmony with their surroundings, physical and non-

physical’. THK is explicitly framed as ‘local wisdom’

(kearifan lokal) that makes it possible for the Balinese

to live in harmony with the environment and revitalize

their culture while flexibly adapting to the rapidly chan-

ging world around them. In this cultural narrative the

subak is presented as a stronghold in the struggle for the

protection of Balinese culture at large against outside

threats like globalization. As Sutawan (2007: 3) states:

‘If the subak becomes extinct, it is to be feared that

Balinese culture will also become unstable, and in the

long term may even become extinct, as a result of which

Bali will become dominated by cultures from outside.’6

According to Sutawan, THK is the basis of ‘keajegan subak’

(subak standing firm; subak resilience) [45]. It is a narrative

full of contradictions: on the one hand it stresses the many

threats to the subak as a ‘traditional’ institution and

guardian of Balinese culture and identity, on the other

5 For the role of water metaphysics and ‘hydro-cosmological’ cycles

and the need to critically ‘examine ancient and modern myths and

discourses that attempt to normalize and subjugate actors to control by

the dominant groups’, see Boelens 2014 [54��].6 Author’s translation from Bahasa Indonesia.


hand it locates the solution in the subak itself as the THK-

based source of stability, sustainability, and environmen-

tal wisdom and awareness. With this growing influence of

THK ideology, social-environmental sustainability and

stability have become framed as intrinsically (Hindu-

)Balinese human and environmental values based in

the subak.

How did THK enter the subak domain and in what ways

does it still exert influence? One important way is through

externally driven agendas of irrigation policy and inter-

vention. This process of expanding government agency

control, formalization and reordering of the subak domain

started in 1972 with the Provincial Irrigation Regulations.

After that, interventions in the subak in the framework of

the Bali Irrigation Project, intended to ‘modernize’ irriga-

tion by introducing blueprint forms of water division

technology, increasingly created conflicts about water

allocation and distribution [32,35�]. In view of the con-

flicts created by these ‘modernization’ approaches, the

new approach was to turn institutionalized practices into

formalized donor-recognized and state-recognized ‘rule

systems’. Thus the focus shifted from ‘hardware’

(physical infrastructure like canals, division structures

etc.) to rules and institutions, introducing formal pro-

cedures through which subak should become legally

recognized. Formalization of subak regulations (awig-awig) played an important role here, and THK began

to be mobilized as a model for subak regulations. Finaliza-

tion of these procedures was tied to issues of recognition,

funding and loan agreements with the donor.7 So-called

‘subak contests’ (lomba subak) were also a way of bringing

in THK as the basis of formalizing and standardizing

subak irrigation practices and regulations. In competitions

at various levels, subak were (and still are) judged on their

performance in the three main domains of THK (see

above). This activity is organized by the Department of

Culture, in cooperation with other departments. Finally, a

yearly subsidy to the subak, provided by the Provincial

Department of Culture, aims at consolidating the THK

philosophy in the subak domain. To qualify for the sub-

sidy subak have to submit a THK-oriented work plan.

Until now there is little clarity about how the grant is

actually used (G Sedana, personal communication). How-

ever, recent research by Pedersen and Dharmiasih

suggests that a large share of this subsidy is spent on

expanding the religious-spiritual infrastructure (temples,

rituals) of the subak. According to these authors new

conceptions of a ‘complete’ subak are emerging that are

policy-driven but to some extent also have a basis in the

subak (Pedersen and Dharmiasih, unpublished).

The emergence and growing influence of THK in the

subak domain clearly shows how normative notions of

relationships between the social, the natural-environmental,

7 The funding institution was the Asian Development Bank.



and the spiritual are continually developing in interaction

with wider socio-political changes and developments in the

world of policy-making. It also shows that these complex

processes cannot be reduced to sectoral or one-issue ‘water

system governance’ matters, nor can they be exclusively

ascribed to either the state or a customary normative

system. Instead, the subak should be seen as the domain

of interaction where issues of water control and manage-

ment merge in complex and unpredictable ways with

cultural, religious and identity politics, broader political

agendas of government control, and the interests of tourism,

rural livelihoods and environmental sustainability. The

local re-appropriation of the domain of ‘religion’, its re-

incorporation into the customary domain, and the ongoing

shifting and blurring of boundaries between ‘governmen-

tal’, ‘customary’ and ‘religious’ domains more generally, are

a major breeding ground for new complex normative and

legal relationships in the subak [47,48]. The increasingly

prominent focus on THK is an indication of this trend.

Changing meanings of irrigated landscapesand heritage policiesTourism crucially changes the ways in which the Balinese

agricultural landscape is valued. The irrigated rice ter-

races of the island are a famous tourist attraction and icon

of ‘traditional’ Bali and its irrigated rice-based culture.

While agriculture’s contribution to the Balinese economy

in terms of crops produced is decreasing, the landscapes it

maintains and reproduces are crucial for tourism. From that

perspective, the current pressures on agriculture are a

direct threat to the image of Bali as a green, traditional

and environmentally sustainable paradise island. From

2007, recognition as a ‘heritage’ emerged as a serious policy

option for protection of the terraced irrigated landscape and

the most ‘authentic’ examples of the subak system. In

2012 part of the terraced irrigated landscape with the

highest value for tourism was formally recognized as a

UNESCO World Heritage site, under the title: ‘The

cultural landscape of Bali Province: the Subak System as

a Manifestation of the Tri Hita Karana Philosophy’ [49].

We see a further framing here of Balinese irrigated agri-

culture and the subak system in terms of the THK ideol-

ogy.8 Recognition focuses on a kind of ‘assemblage’ (the

report speaks of ‘ensemble’) of farmers and irrigators’

communities, rice terraces, temples at various levels of a

hierarchy, technologies, and agricultural practices, all

linked by the philosophy of THK. Aside from the general

criteria of uniqueness and outstanding value, integrity and

authenticity, it stresses the environmentally sustainable

character of the subak system as fully functioning in

accordance with traditional principles and integrating

natural-environmental, religious and cultural components.

However, such heritage policies are not neutral, but have

real consequences in redefining rights and obligations,

8 See also http://whc.unesco.org/en/list/1194.


territories and boundaries. They determine who and what

are to be included on the basis of what criteria, how areas

are to be reshaped and protected to guard their ‘authen-

ticity’, how resources are to be managed, what people are

allowed to do and what not, and how subsidies are

allocated and benefits shared between various stake-

holders. Heritage policies related to tourism basically

turn landscapes into ‘packaged, themed environments

whereby relatively sanitised representations of rural life

are designed, constructed and presented to visitors’ (Urry

and Larsen 2011: 112) [50]. Guimbatan and Baguilat [51�]provide clear evidence of such changes for a similar case

— the Philippine rice terraces in Ifugao Province: new

valuations of the landscape in terms of ‘outstanding

universal values’, new restrictions imposed to preserve

‘authenticity’ according to universal standards, and a

tendency to ‘fix’ these landscapes for the benefit of

tourism or to revive past traditions. The ICOMOS docu-

ment [49] shows that this might also be the future for Bali:

new restrictions, re-creation of a ‘real’ traditional subaklandscape and re-traditionalizing styles of house construc-

tions are examples. Cole (2012: 1234) rightly speaks of the

risk of cultural heritage landscape ‘resulting in the

museumification of the livelihoods for some Balinese’

[15��]. One can imagine a future in which farmers’ will

have become (subsidized) labour power primarily needed

for maintaining the terraced landscapes of Bali as a

‘cultural heritage’ and tourist attraction. Lorenzen

(2011) has developed three highly relevant scenarios

for future pathways of the subak (RP Lorenzen, PhD

thesis Australian National University, 2011). A focus on

law, plurality of legal systems and governance could add

an important dimension to such scenario-building efforts:

such scenarios also, and crucially, entail futures and

modalities for governing and controlling people, resources

and landscapes.

From a perspective that takes into account legal plurality,

the changes associated with the creation of new heritage

spaces can be seen as processes of property formation

defining new rights and obligations, forms of governance

and management, and in- and exclusions in a legally

pluralizing socio-political and institutional environment.

Heritage sites produce new categories and definitions of

property rights, often with the past or the future rather

than current conditions, uses, and livelihoods as their

main point of reference [52]. These processes are taking

place in a legally pluralizing context, where global norms

and standards associated with ‘cultural heritage’ interact

in complex ways with forms of ‘internal pluralism’ in the

domain of state administration [10�], as well as local

customary and religious notions and definitions of rights

and obligations in the domains of village and subak. In

view of the growing importance of non-Balinese labour

power in agriculture and the reassertion of Hindu-Bali-

nese identity in the subak domain, these changes also raise

questions about how they work out there ([19��]; see also


http://whc.unesco.org/en/list/1194


RP Lorenzen, PhD thesis Australian National University,

2011). Another important issue concerns the distribution

of benefits generated by heritage policies (primarily sub-

sidies to stimulate specific activities, and income from

tourism): how will they be distributed between state

administration and the customary domain; between cus-

tomary village and subak; between landowners, labourers

and sharecroppers? Heritage in practice may create new

lines of differentiation along which new forms of legal

plurality play out in and beyond the subak domain. These

issues of local property transformation in a legally plural

context should be more seriously considered in processes

of heritage formation in relation to issues of livelihoods

and development.

Legal plurality and the subak: final remarksIn this article I have reviewed the recent subak literature

in relation to issues of environmental sustainability. I

have focused on the changing role of legal-institutional

plurality in relation to changing water rights and policies,

emerging policy-propagated notions of social-environ-

mental harmony and sustainability, and changing values

attached to irrigated landscapes. Using recent relevant

literature, I have shown that the subak domain is one of

the stages where the growing social and environmental

pressures and conflicts are expressed in various ways,

transcending neat sectoral or policy domains. Thus

new ways or ordering and controlling resources, land-

scapes, and people come into being that also involve

the increased use of ‘traditional’ notions of social-environ-

mental harmony and stability — as evidenced by the

growing prominence of THK ideology. The three

examples discussed above are characterized by ongoing

and emerging forms of legal plurality, localizing in the

wake of decentralization and regional autonomy, and

globalizing under the influence of normative global

notions of heritage landscapes, transcending sectorial

boundaries and domains of life, as well as the state-

customary dichotomy.

I use these three examples to make some further remarks

about the role of legal plurality and to shortly relate them

back to the framework presented by Bavinck and Gupta

(this volume). Bavinck and Gupta attempt to classify

relations between legal systems in terms of four ideal

types, characterized by indifference, conflict, accommo-

dation and mutual support. Each type is then argued to

necessitate a specific governance response. This is a very

system-oriented interpretation of legal plurality.

Although I acknowledge the usefulness of attempts to

categorize and construct typologies, there is also a pro-

blematic side to categorizing legal systems in terms of

weak or strong relations, contrary or affirmative

tendencies, and positive or negative qualifications (and

attaching specific developmental types of ‘solutions’ to

them). Is it possible to ‘read’ from the quality and

intensity of relationships between systems — presented


as unitary and fixed, and mainly featuring ‘authorities’ —

what the governance needs are for solving problems of

legal plurality? Or to understand the social meaning of

legal plurality in the life-worlds of people who experience

it, are constrained by it, or mobilize it in their struggles?

How can such typologies be helpful without sacrificing

important advantages of the analysis of legal plurality,

such as its attention to human situatedness and agency as

points of departure in explaining the social workings of

law in legally plural situations? Can a typology in terms of

relationships between systems contribute anything to the

analysis of law as it manifests itself in real life, and to our

understanding of how, why and by whom a specific legal

repertoire is mobilized? Answers to these questions are

contextual, as Spiertz [33��] has convincingly argued,

taking the Balinese subak as example. This characteristic

of the manifestation of law in society is also what makes

‘mapping’ law in terms of territories, boundaries, mem-

berships or internally coherent systems [53�] quite pro-

blematic.

To return to my own example on water rights, policies,

and interventions: how can relations between subak farm-

ers and intervening government agencies be classified?

Positive or negative? Competing or mutually supportive?

Contrary or affirmative? Is the subak the seat of one

coherent legal system (‘customary’) pitted against another

(‘state’)? Answering these questions requires understand-

ing of how actors are positioned in relation to, for instance,

such policies: does the government bring subsidies or

enforce contested changes in subak technology, or both?

Who benefits? Are policy definitions of the ‘ideal’ subakthat needs to be protected and kept ‘traditional’ locally

seen as legitimate or not, and by whom? What are the

legal implications of such definitions, and how are the

resulting ‘goods’ and ‘bads’ such as rights and obligations

(re-)distributed?

Second, and shortly hinted at above, while it is often

assumed that ‘water governance’ is primarily about water,

the examples of the emergence of THK in the subakdomain and of heritage policies for irrigated landscapes

clearly show that this assumption is too simple. Both

examples involve contestations between normative-legal

repertoires and emerging legal systems that transcend

water governance. Instead, the subak is one of the stages

on which important socio-political developments are

acted out in their full complexity. The subak is not only

an irrigation society, but also the seat of environmentally

sustainable ‘local wisdom’, a cultural-religious stronghold

against globalization and other threats to ‘traditional’

Balinese culture, an economic asset in the tourist indus-

try, and the basis for the livelihoods of those who did not

make the step towards the services sector. It is the place

where changing notions and domains of customary law,

religion and spirituality, and governance meet — and

where cultural meanings and identities in relation to



water, irrigated agriculture and a host of other domains are

re-negotiated and contested using, among others, law and

policy (see also [54��]). With reference to the growing

importance of THK, Ramstedt (2014: 74) speaks of

‘concerted efforts to re-embed religion, governance,

and economy into Balinese culture and society’ [55]. In

these efforts, various legal frames of reference cannot be

related to clearly bounded groups represented by

‘authorities’, categorized in a fixed way — as discrete

‘systems’ with jurisdiction over particular areas or sectors.

This can only be done in a meaningful way on the basis of

specific issues, around which normative and legal reper-

toires are mobilized by specific social actors to reach a

variety of societal and other goals.

AcknowledgementsThe author would like to thank two anonymous reviewers and MaartenBavinck for their valuable comments on this paper.

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Environmental sustainability and legal plurality in irrigation: the Balinese subak