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14 Const. Pol. Econ. 3 (2003)

handle is hein.journals/constpe14 and id is 1 raw text is: LA Constitutional Political Economy, 14, 3-21, 2003. W © 2003 Kluwer Academic Publishers. Printed in The Netherlands. The Place of Indigenous Institutions in Constitutional Order' SUJAI J. SHIVAKUMAR2,3 The National Academies, 2101 Constitution Avenue, NW Washington DC 20418 Abstract. The failure of the state in Africa and elsewhere, and its attendant conflict, is rooted in the lack of correspondence between indigenous institutions and the formal structures of the state. Indigenous institutions, as have variously evolved, represent sets of practices and expectations that can be distinctive to problems of collective action faced by groups of individuals in their own exigent circumstances. By developing a community of understanding tuned to these circumstances, they provide the rules and grammar within which individuals perceive their actions and those of others. They thus each represent a facility within which a person can use his or her knowledge of time and place and his or her understanding of others in the group in resolving collective action problems. In order to overcome the pathologies of state failure, societies should be constituted with reference to these indigenous political resources. As such, constitutional rules should both link such systems of collective action and set out the terms by which they develop. JEL classification: HO, 017, P0. 1. The Relevance of Indigenous Institutions Indigenous institutions can represent locally meaningful solutions to problems of collec- tive action4 confronting individuals in the various particular environments they inhabit. By providing specialized rules as tools to address peculiar problems related to the exigencies of time and place, they can forestall and resolve conflict, foster coordination and cooperation in jointly undertaken activities, and promote reconciliation of varied interests. Given that the improvement of human well-being rests on the realization of adaptive potentials, and given that problems of collective action must be overcome in this regard, the nature of indigenous institutions and their place within a broader constitutional context is critical in addressing issues of economic progress and human development. Nevertheless, indigenous institutions are relevant to conflict resolution, reconciliation, and development, not so much because they, in some cases, represent ready-made or locally evolved solutions to problems of collective action, but rather because they reflect fundamental understandings among affected individuals, who must deal with each other within the context of a particular problem arena on how to overcome dilemmas of collective action. These understandings relate to how each person conceives of his or her contribution within the array of relationships that secure a problem-solving community. Institutions, as nexuses of such cognizance, serve to bind a community of understanding; they create, within the minds of each member of the community, bounds for rational action and expectations on how to relate to the other in solving problems collectively. In this respect, any initiative deemed necessary to improve patterns of development or conflict

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