论习惯水权——以滇东永善县坝村为例

Discussion on Customary Water Rights: A Case Study of a Village in Yongshan County,East Yunan Province

在法律不入之地或传统农村,规范水资源仍然依赖于一套行之有效的经验法则。不同的传统习惯水权能保障人们对水的基本需求,使其在饮水、灌溉、储水、引水、汲水、排水及水利方面有合理保障。由于先于官方法律而存在,后起的水法体系使水权习惯与之有冲突亦有融合。只有认识到习惯水权的价值并使双方相互调适起来,才能更好实现两者的"双重合法化"。这样,习惯水权不但成为官方法律的补充,也成为一套被官民双方承认的"法"系统。

In the places lacking legal authority and in the traditional rural areas, regulation of water resources still relies mainly on a set of effective traditional customs which ensure the basic demand of local people for water and guarantee their drinking water, irrigation, water storage, water diversion, water drainage and irrigation works in a reasonable way. Existing earlier than the official law, customary water rights do not altogether conform to the system of water resource law. Only by realizing the value of customary water rights and achieving mutual adjustment between customary water rights and the official law, can the two systems realize ＂dual legalization＂. In this way the customary water rights will not only complete the official law but also become a ＂legal＂ system recognized by the government and the folk.