of Sociology and Anthropology
of Law Tel Aviv University
concepts of a world neatly divided into independent states, each clearly
differentiated by precisely drawn lines on a map, each presumed to possess
absolute power within the designated area, presents a shallow, and
ultimately false, picture of modern social and political reality.
An earlier idea of sovereignty, which sanctioned total authority for the governing
bodies to rule over the inhabitants of the territory under their control,
has only limited value in a world of both increasing concern for
the universal nature of human rights
sparked by international and regional bodies and non-governmental rganizations
(NGOs), and of increasing activity and intervention in the economic
area, spearheaded and symbolized by the proliferation of multi-national
The very term, nation-state has become - in fact perhaps always was- a
misnomer, as there are only a limited number of states in which there
is any synchronism between the political fact of a state and the social
fact of a nation. Most states are multi-national (or multi-ethnic or multi-tribal),
either by design (the result of immigration policies for sparsely-populated
or by history (the consequences of past conquests or more subtle intermingling).
Perhaps the most brash example of the artificial nature of many states
is the outcome of the "scramble for Africa," in which European colonial
powers, towards the end of the nineteenth century, laid down artificial
boundaries, based on military power, missionary presence and trading
parameters, which have become, with only minor and insignificant alterations,
the sacrosanct boundaries of independent countries, rendered ever
more inflexible by the pronouncements of Africa's political leaders and
the policies adopted by its continental organizations, such as the OAU(1).
Yet whatever the present-day fallacies and the flaws of yesteryears, the
state is still the dominant factor in the modern world as we know
it, and will probably remain so into the foreseeable future. But
this very fact makes ever more urgent the need to understand its changing
nature and its ongoing limitations. Indeed, the very colonial powers that
once laid down the borders in the continent of Africa, have recently
embarked on a pioneering effort to co-operate in a new-style community
of nations, based on a willingness to restrict the totality of their
sovereignty and to make both their legislative and judicial organs subject
to a certain amount of regional surveillance in certain defined matters.
The ultimate outcome of the present endeavors is unknown, but whatever
emerges will have repercussions in other regions, and most certainly on
the meaning of standard concepts in political and social science. One
certain consequence is that geo-political frameworks are no longer to
be considered monolithic. The emerging pattern is one of pluralism- social,
political and legal(2).
It is in this context that I wish to examine the nature of customary law
in the modern state:
specifically the manner in which the traditional beliefs and practice
of tribal groupings may be
recognized by state authorities.
I have used the term "tribe", even though it has become a problematical
one - and do so for a number of reasons, not least of which is the want
of a better nomenclature. Like the word "state", the word "tribe"
is undergoing re-assessment, and there seems to be a growing number of
persons, in political and academic life, who are eschewing its use, arguing
that its limitations outweigh, its clarificatory capacity, and that it
is an imposed categorization enunciated by outsiders and attuned to their
own convenience and not to objective reality. Even if there is some truth
to these assertions, they often ignore the problems that attach to all
of the proposed alternative terms, problematics that are, it should be
stressed, not different from those of most social science terminology-ranging
from those of the aforementioned "sovereign state" through the issue of
what is a religion or a language or a race.
For instance, there is, we have been told, no such thing as tribe, partly
because there is no clear-cut distinction allowing for meaningful
categorization, as though there were no problems relating to, for example,
religion: when is a religion only a cult, or should Catholicisrn be differentiated
from Protestantism;(3) or language: when is a language only a dialect
or how to
categorize Pidgin or Creole.(4) These are complex issues but, for now,
it is necessary only to emphasize the reluctance to use the term "tribe".
For instance, the most touted alternative, indigenous people, is
based directly on past imperialism-far more so than tribe, for it is applicable
only on those states in which there is a dominant settler population.
Thus, for example, in India, which does officially recognize the
existence of tribes, partly for the purpose of what is known elsewhere
as affirmative action programmes on their behalf, all of its people are
indigenous;(5) in this context those known as tribes are given certain
privileges to offset some of the handicaps from which they suffer in the
In fact, the very use of the term "indigenous" allows some countries that
have "tribal people" to deny, because of the semantics, their very existence,
possible thereby undermining the possibility of having their rights
recognized as a minority group with legitimate claims on the majority
Perhaps there is a need for the use of a new word-but that seems a task
of sysiphistic proportions, given the very looseness of the kind
of population that is associated with the term "tribal groupings" or "indigenous
people" or any of the alternative suggestions, e.g fourth world, first
nation, aboriginal, clan or descent group. Worse still are the attempts
to ignore the uniqueness of tribal people, in terms of the very possibility
of assuring them of their most basic rights of land, religion, social
ritual, by subsuming them under other categories, such as language,
nation or ethnic group. In fact, the prevalent suggestion of ethnicity
instead of tribalism, is perhaps the most problematical of all both
vague in its conceptualization and often specifically related either to
the European continent, with its variegated population, or to the consequences
of European, imperialistic, experience-as where Italian, Irish or Greek
ethnicity is applied to immigrant groups only in the "new world," and
not to the home base.(6)
The solution may well be in trying to move beyond the old anthropological
and political categories, and to see "tribe" in sociological terms,
as the embodiment of a gemeinschaft, as representing those qualities,
which Tonnies(7) tried to describe as the alternative to a gesellchaft
society, with the latter both most noted in the western world, and about
which he also expressed reservations.
Furthermore, tribal culture, while struggling for its own very viability
in the modem world, poses also deep existential challenges for the
modern state-including the vexed question of the rights of minorities
in an all-powerful state, as recognized by its laws, its constitutional guarantees,
earlier treaty provisions or more recent international conventions; since
rarely refer to tribe as such, the question becomes whether tribes are
entitled to the same rights (at the least) that have been vouchsafed to
other minority groups, based on language, religion or ethnicity.(8) Beyond
that, the question arises whether the specific problems of tribes can
always be resolved by relating to them as though they were no more than
minorities of the type mentioned. Calling a tribe an ethnic group does
not guarantee it all the rights it seeks, which often are different from,
and go beyond, those that are claimed for ethnic groups-or religious or
In any event, there is now a bench-mark change in societal perceptions
- where most countries are moving from earlier conceptions of a unified
value-system, based on ideas of assimilation or of the melting-pot,(9)
to an approach that allows for diversity and speaks in terms of varying
degrees of pluralism, an approach that encourages toleration for differing
customs, including possibly ones perceived by the dominant culture to
This is perhaps easier for older and more mature states, than it is for
the newer states, still in the first decades of independence and
still actively involved in the process of nation-building, often
intent on breaking down old barriers of differentiation, continually aware
af particularistic allegiances that might well undermine the struggle
to forge a national unity and a national identity.
So, for instance, tribal identity is minimized, so that national allegiance
may be enhanced. The very term tribe is superseded by alternatives
such as language group, or ethnic group or community, as though the
older countries of Europe have not known language strife or ethnic community
strife, recently indeed rampant throughout Eastern Europe and noted also elsewhere,
e-g, in Northern Ireland, or the Basque country in Northern Spain or the
isle of Corsica in France.
The truth of the matter is that same, at least, of the socio-legal issues
that confront newer states cannot in my opinion, be satisfactorily resolved,
except by an acknowledgrnent of the fact that the issue is tribal-and
not simply one of language, ethnicity, or religion.
Since it cannot be denied that certain dangerous and divisive manifestations
have emerged from tribalism it might be well to recall the distinction
made by a leading African politician, Tom Mboya or Kenya, between
what he termed "positive" and "negative" tribalism, the former to be retained
and fostered, the latter to be thwarted and removed.(10) Mboya stressed
rather the various manifestations of tribal identity in a political context--negative
tribalism, for instance, was not specific tribal customs, but the rate
of nepotism and corrupt practices linked to familial contacts, generally
(and perhaps paradoxically), in the urban areas outside of tribal territory.
Writing at an early stage of independence for African countries,
he concedes that:
…to anyone concerned with African unity, tribalism presents one of
problems. We discussed at length this problem at the All-African
People's Conference in 1958, the question of traditional rulers, the problems
of language and customs. We concluded that, if governments
tried to destroy tribal culture and customs, language and
ethic groupings, they would create such a vacuum that the African might
find he had nothing to stand upon and become a most
bewildered person in the modern world.
We thought it essential to isolate what you might call "negative tribalism"
from tribalism in the form of customs and culture.
Let me state the positive contribution of tribalism first. At this
stage of economic emancipation, with many more Africans moving
into the money economy, they have to decide whether to allow themselves
to be completely uprooted from all their past beliefs.
I believe it unwise to destroy this African structure or interdependence
within the community where each man knows he has certain responsibilities
and duties and where there are certain sanctions against those who do
not fulfill expectations: there is, for instance, inherent
generosity within a tribe or clan.
various aspects of tribal life, he continues:
People have done their worst in outlawing tribalism, and never
differentiating what was positive and worth preserving.
Missionaries taught Africans to despise their tribal culture,
telling them it was in conflict with the modem world. No effort was made
to trace what was good, or to point out to the potential leaders
of a community how some customs could be modified to suit the changes
in the world. People were simply taught European social
behaviour... without any reference to African custom the question
whether we can develop within Africa a system which reflects the African
personality, but is at the same time a growing system
in which a man does not have to cling to tribal customs in the raw and
It is this
approach that lay at the base of philosophical ideas seeking a specific
African approach to social life, such as Negritude(12) or African
Socialism, as espoused by Leopold Senghor.(13) With the years these
lodestar ideas have lost their luster, perhaps a dull reflection of the
malaise--political, economic, social that has gripped so much of Africa
as the original excitement of throwing off the shackles of colonialism,
has subsided, and the daily struggle for survival becomes an all-encompassing
reality. One doubts if this malaise stems from tribal life. If anything,
in other parts of the world a revival has taken place in recent years;
in Australia among the Aborigines, in New Zealand among the Maoris, in
the United States among the Amerindians, in Canada among the latter and
the Inuit.(14) Will these groupings be encouraged to seek a revival of
their damaged culture, after they have been made into marginal minorities
in their own land, while those, in Africa, who have been accorded full
independence as nations will, by virtue of the inexorable onward path
of progress, lose their traditional culture? This would be an incomprehensible
Even so, social reality may impose its demands on political developments;
firstly, that so many people still live in their tribal areas, still influenced
by tribal life still conversant with tribal customs, and secondly that
tribal identity continues to maintain some hold over many who have physically
departed their ancestral heartland.
Indeed, as many researchers have pointed out, tribal identity often becomes
of greater importance in the urban areas, as migrants seek help;(15)
sometimes this was legitimate and positive, when given within the
framework of social welfare considerations, but often was negative,
when exploited for the purpose of gaining favored treatment or as a ploy
for political power. But here again this negative aspect is not
one unique to or inherent in the nature of tribalism but a common
pattern noted in many places where ethnic links intrude on
politics and become a basis for power (as in Tamany Hall style politics
in the United States),(16) or where there is glib talk of a Catholic
vote, a Jewish vote or a Black vote.(17)
The issue of positive or negative tribalism is, in many respects, what
underlies much of the involvement of states with the varied customs
with which they deal. A key issue to be explained is the attitudes
displayed by the various state authorities towards these customs which
differ from the overall norms of the society.
In a provocative book, one of Africa's leading social scientists, Ali
Mazrui, presently with academic tenure in the United States, argues
for, and basically predicts, the coming demise of the tribal system.(18)
Mazrui uses tribalism as a counterpoint to racism, contending that just
as tribalism was eradicated in Europe, so will racism be eliminated there.
He then shows the connection between the two terms, and then goes
on to distinguish between "two forms of human solidarity," one based
on "biological relationship" among the members of the group, the second
based on an "economic relationship…real or assumed," of which he claims,
the clearest example is "class consciousness," whether of workers
or of employees.(19) arising out of this contrast claims that:
…the history of the world so far seems to indicate a decline in the
power of biological solidarity, and arise in the influence
of economic forms of unity.
Tribalism, in the sense of a larger group that sees itself as having
been descended from a particular tribal ancestor, has almost disappeared
in the western world as a whole.
The question arises whether the fate of these other forms of biological
solidarity-the extended family, the clan and the tribe--will
also befall racism and race consciousness as the last political
bulwarks of the mythology of kith and kin.
In Europe, tribalism was almost the first to go among these forms of
biological alignments; racism may well be the last to go.
In Africa, on the other hand, racism is likely to end first,
following the liberation of southern Africa. But tribalism may last much
longer, though ultimately also doomed to extinction in the generations
that will follow.(20)
that the preferable advanced human relations of the future will emerge
when tribalism, as one of the examples of biological connection,
will disappear; relationships based on economics will replace them,
even though here the future is of constant class struggle. And so, for
Mazrui, going beyond Marxist thought, "The ultimate destination for humankind
is not a classless society, but a detribalized society, at least
in the sense of the final elimination of all forms of political and
economic allegiances based on the solidarity of kith and kin"(21)
What Mazrui ignores is the fact that tribe is far more than a biological
connection leading to economic interaction. It has other aspects
that are far more important; as a framework for cultural expression,
for sociological identity, for religious beliefs, for ties linked to geographical
Mazrui seems to know only the "negative" tribalism against which Mboya
warned is but nothing of the "positive" aspects, which Mboya had
praised. But there are other writers who argue that an understanding
of tribe is central to an understanding of modern Africa, just as perhaps
an understanding of Christianity is essential to understanding modern
western secular civilization, or Buddhism and Confucianism to understand
China, even modern Communist
The concept of tribe is undoubtedly a problematic one-vague in its initial
Formulation, over-extended in the kind of groupings included within
its orbit, exploited by those colonialists and others, who wish to stress
the alleged primitiveness or local peoples and the divisions among them,
and critically and negatively analyzed by many political activists and
social scientists, who claim that its continued use will serve only to
foster the negative trends they wish to counter.
Yet, much of the criticism is based on certain assumptions, which are
as dubious and debatable as the concept itself is problematic, namely,
that there are no similar problems as to most of the alternative
concepts being suggested, such as indigenous or ethnic groups (both of
them in any case entirely different in their compass, the former narrower,
the latter broader), or ancillary concepts with which it is contrasted,
such as state or nation, or, for that matter, a whole host of other social
science concepts, which are vague, unclear, have been inaccurately or
unfairly used, and whose validity has been challenged, such as class or
As an opening gambit it should be made clear that the issue of adequate
and acceptable terminology in the social sciences is often encountered
and there are few concepts that are universally and unequivocally
recognized. Within this context, the problematics of tribe are not unique;
the term is not being used as some sort of diabolical trap set by those
who wish to retain its use as a guarantee for continued tribal strife,
or for prolonged backwardness. On the contrary, the concept of tribe
may well speak to the uniqueness of aspects of culture and living that
are not easily encompassed within other rubrics. While this factor may
be of only minor relevance when dealing with artistic aspects of a culture
("tribal art," "tribal dance,." "tribal music"-it would make little difference
to the aesthetic value or social impact, if they were to be referred to
as "ethnic" music, dance and art)(25) yet it may be of major import where
some of the material aspects of life are concerned, including those that
have legal implications the legal claim to territory, the legal significance
of ritual acts, or even issues such as the meaning of sovereignty, the
basic rights of minority groups, and the recognized limits of state power.
It is necessary to present some of the rationale for the use of the term
tribe. One of the key reasons is certainly that there are some rights,
even privileges, that are best, sometimes perhaps only, guaranteed within
the conceptualization of tribe. The issue then is not just semantic, but
substantive, not just of a definition of a social group, but of an assertion
of legal rights.
Let me stress that I am fully aware of the reluctance to use the term
by those eager to ensure the progress of the so-called "Third world"
countries and also fully aware of the exploitation of the term in the
past by those intent on divide and rule, on control through indirect rule,(26)
on the co-operation of lackey chiefs, and the host of other defects that
were associated with tribe in colonial times; and also aware of the term's
possible negative implications today-as a
divisive or regressive factor.
But to deny its use is also to denigrate much that is of value in the
community or group being discussed. More than that, recognition of
tribe is important as being one of the internal groups within the modern
state that is both entitled to recognition in its own right, and that
serve as a focus of allegiance and social identity. For many for whom
the state fails to evoke the necessary sentiments- In the understandable
and justifiable striving for national independence and unity in new
nations, there is no need to ride roughshod over the feelings that
ordinary citizens have for smaller and more immediate groupings, especially
those among the citizenry who lack the easy universalism and cosmopolitanism
of the political and intellectual elite.(27)
This need not lead to the fission often feared; on the contrary, it might
well be that recognition of intervening group-between the individual and
the state-might be an essential intervening agent for a healthy political
community and fruitful social interaction. Properly perceived, responsibly
presented, the tribe (no less than the ethnic, language or religious group)
may be seen as a positive and constructive rnediating factor between
the individual and larger social
aggregates, such as the state. One way even argue that resentment at the
denial of such recognition may lead to alienation from the larger
In the context of American society, Will Herberg has suggested that in
a large continental state such as the United States, smaller affiliations
are needed in order to provide a social mooring for personal identification.(28)
He specifically suggests the three major religious trends of Protestantism,
Catholicism and Judaism, but, given demographic changes since the 1950s
when he wrote, it would today seem necessary to add Orthodox, Christianity
and Islam, of the monotheistic religions that have made some impact in
recent years, as well as of course, the indigenous American Indian religions;
all these incidentally, in a country ideologically and constitutionally
committed to a separation of a state and religion.
Of course, in other contexts, religious divisions have led to strife,
irrespective of whether differentiation was made between state and
religion. Similarly, it is not completely clear what the subtle accompanying
variables are that vouchsafe for a seemingly tranquil multi-linguistic
society in Switzerland, in contrast to intermittent eruption strife in
Belgium; or how Japan copes with a tolerant attitude to religion that
allows for dual membership of Shinto (the former state religion) and Buddhism(in
its Japanese form of Zen), while the Indian sub-continent, more or less
ethnically (but not linguistically) homogeneous, is divided partly on
a religious basis of Hindu/Indian and Muslim/Pakistan, with additional
divisions, some of them with nationalistic overtones, such as the Sikhs.
Or how much of Northern Ireland's problems are related to religion, and
how much to class differences or nationalistic or ethnic aspirations.
In as much as Africa, for instance seeks unity, either regional or continental,
it is by no means clear that it is tribalism that is the major divisive
force-it may well be that an identification with a tribe might be the
very factor that could facilitate the larger striving for unity, whether
or not at the expense of the newer states, some of them with their inner
controls, often repressive, all of them with their outer symbols of flags,
anthems and all the other paraphernalia of statehood.
In this context it is of interest to note the developments of regional
unity in Europe(from whence comes the model of the modern state however
much earlier empires in Africa may serve as present inspirations).
These developments toward unity, according to many astute observers
of the European scene, may actually facilitate the recognition of smaller
local ethnic and national groups. The larger and looser conglomeration
of states may make smaller
groupings more viable than previously were, when within the confines of
the hermetically sealed boundaries of individual states. The converse
pattern may well be true, where a recognition of narrower loyalties,
by whatever name, including tribe, may render the establishment of
larger, regional groupings more likely.
These are very real possibilities, perhaps only partly sensed at this
stage, but before the political and academic worlds cry "finis" to
the idea and the very existence of tribe, they may wish to consider
it not merely as an unfortunate and anachronistic reminder of the past,
but as a potential valuable resource for the future, a new future that
is still being forged, and that offers new prospects for minority
groups off various types that until recently were considered to be
of only of marginal significance in a world of precisely-drawn state boundaries.
Indeed, the state may be a far greater hindrance to continental or
regional unity than tribe.
Yet for many, tribes are really a relic of the colonial age; they originated
as no more than the figments of imperial imaginings and designs and
so there is a need for revisionist understanding of historical processes,
and for a radical understanding of present-day reality.(29) In a thought-provoking
book, Martin Chanock(30) has shown how the British policies for Africa
included, among other pre-requisites for indirect rule, the designation
of chiefs and headmen, through whom it would be possible to maintain control
over the "lesser" members of their "tribes-" It was in the interests of
the British colonial administration to recognize the existence of tribes
in order to consolidate the power of the chiefs, who, in turn, benefited
from the extra authority, power and honor that the European conquerors
bestowed upon them.
Anthropologists of the time (together with other key figures such as missionaries)
fostered such tendencies by similarly using the concept of tribe as the
basis of their unit of research. It is being argued that to recognize
tribes today is to perpetuate the colonial sin, and to hinder
However, it is not clear that it is the recognition of tribes that causes
the problems in new nation-states, or that other appellations, such
as ethnic group or community, would make it easier for these states
to coalesce. If differences exist, they do so whatever the name given
to modern independent Africa, there is a wide consensus not to make any
changes in this
One of Africa's leading academic lawyers, B.O. Nwabueze, himself a Nigerian,
devotes several chapters in his book on Constitutionalism in the
Emergent State,(33) to the problem of attaining true unity n Nigeria.
While aware of the background of tribalism ("Nigeria is perhaps one of
the most conspicuously tribalized societies in Africa," he writes(34),
he points out the many other factors that undermine the sense of national
unity, from the very fact of colonialism itself ("colonialism is intrinsically
inimical to the fostering of a sense of national identity"(35) to the
ineffective manner in which federalisrn (presumably to make allowance
for regional, including tribal, interests), was set up ("The boundaries
of the North were the result partly of the accident of its origin and
partly of sheer gerrymandering by the British"(36).
Similarly with other internecine wars in Africa. the issue is not the
so-called divisive quality of tribalism, but perhaps the lack of an ideological
concept of pluralism, that might allow respect for diversity. What many
heterogeneous states need in order to achieve a viable, stable
environment is recognition and appreciation of the cultural differences
among the different groups, linked to adequate political expression.
This seems to me to be the major issue and not the question of what
the groups are to be called. In fact, many European and Asian countries
that do not use the terminology of tribes t differentiate population groups
often find themselves with divisive problems no less than, and sometimes
greater than, those in Africa-based on language (Belgium), ethnicity
(Spain, Yugoslavia), or religion (India, Sri
Lanka, Northern Ireland). In Africa and of the most disturbing and long-lasting
conflicts, with over a million deaths in several decades of fighting,
has nothing whatsoever to do with tribalism-the conflict in Sudan
between north and south is based on a combination of ethnicity, nationhood,
religion, class and regionalism.
Recent years have seen several attempts to seek alternative appellations
for tribe-the most notable being those of "indigenous people" or
of "fourth world people," the former term being more official and academic,
the latter having ideological overtones; but these do not only resolve
the semantic problems; on the contrary, they also create new ones, including
that of an awkward terminology.
In fact, there are countries such as India, where the law actually officially
recognizes certain tribes-mainly of economically less advanced groups
and often from outlying, generally mountainous regions-and
by including them in the list of scheduled "Tribes",(39) allows their members
to benefit from a whole host of affirmative action policies.(40) The idea
of classifying them as "indigenous" is as confusing as calling the original
North American inhabitants "Indians" as the 'non-tribal" Indians (in India)
are no less indigenous. In that, the idea of using the term "indigenous"
seems a relic of colonial thinking, raising suppositions that it is only
in formerly colonial countries, such as Canada, Australia and New Zealand,
that there is a problem, while ignoring the similar needs of similar groupings
in other countries, where no settler colonilization take place.
The term "fourth world" people also raises issues including the
acceptance of a world already divided into three worlds,(41) and the clear
degradation with the connotations of superiority and inferiority, third
world being inferior and fourth world even moreso precisely one of the
reasons why many people have sought alternatives to the term tribe.(42)
In any event in terms of ordinal members "first" might be far more appropriate,
as used in Canada, where the indigenous people are known as "First Nations".
However, in Canada there is also extensive use of the term "native", as
also increasingly in Australia, a term that in South Africa is and was
totally taboo by those struggling against the inequities of segregation
But the real problem of the concept of tribe, or any alternative term,
is that the issue of satisfactory definitions for population groups
is a perennial one for the social sciences. Tribe is not the only definitional
categorization that poses problems, especially as to the diversity of
the types involved, as to demarcation in the marginal cases, and as to
the possibility of incorrect, often negative, characteristics attributed
to such entities.
Other widely-used terms are problematic. Some of them, such as class or
race are already, in fact, far more controversial than tribe; others
such as state and religion seem almost beyond dispute, yet they too have
their problematic aspects.
Although few concepts in the social sciences seem to be as clear as a
reference to a "state," since states have sovereignty, borders, and
enter into relations with other similarly recognized entities, yet the
variety in the size, composition and nature of the 200-odd states in the
world community today is so great that their diversity is probably
more extensive than that of tribes.
On the other hand there are the massive continental states China, Russia,
USA, and India with large and heterogeneous populations; on the other
hand, there are the city-states of Menace, San Marine and the Vatican
City, the island state of Nauru (population slightly ever 10,000, yet
once considered per capita the richest country in the world), and small,
states such as Andorra and Bhutan.
From another perspective, it is not clear what the ultimate meaning of
emerging regional groupings are, with the European Union as the clear
pace-setter. Even without entering into the intricacies of whether a new
kind of super-state is emerging, or whether the groundwork is being laid
for a United States of Europe, the constituent states of the community
already have voluntarily agreed to forgo some of their sovereignty, by
making their law in certain specified areas subservient to the provisions
of treaties and of judicial norms of the European Court of Justice. Even
the much-wanted sovereignty of the British Parliament has had to succumb
to this new wave of change in Europe.
There is one particular term that is receiving increasing support as a
useful alternative to tribalism-that of ethnicity; yet whatever advantages
it might have, there is little doubt that it is even far more a product
of western reality than is the asserted western imposition of the term "tribalism"
in the areas of its imperialistic conquest. For the awareness of
a person's ethnicity
in North America is generally a consequence of immigration from a home
base to the creation of some kind of community on behalf of immigrants.
In its original use the immigrant community was of European origin trying
to carve out a viable existence for itself in the so-called "new world."
Later, of course, as migration patterns changed, the number of groups
qualifying for ethnic states vastly increased-so now there are ethnic
Chinese, ethnic Japanese, ethnic Indian and ethnic African, but not, interestingly
ethnic Nigerian, Ghanaian or other separate national African identities.
In fact the term Afro-American has, in recent years, been replacing Black
(which itself replaced Negro) as the term of normal parlance in academic
writings and the media-and with it, apparently an acceptance of the term
"people of color," which is being increasingly used, despite the general
rejection of the term "colored people," even though one of the leading
civil rights organizations in the United States uses that term in its
name--the NAACP-the National Association for the Advancement of Colored
In general, then, people from Italy or Greece became ethnic Italian or
ethnic Greek only on leaving Italy or Greece, or being children,
or perhaps even later descendants, of immigrants.
Ethnicity basically replaces lost national or citizenship affiliation.
In the United Kingdom, for instance, the Irish or the Scottish are
never looked upon as being ethnic groups-only when they leave does
their ethnicity became relevant. If anything in Britain itself; they are
seen as "people" or even as a nation. As for the English who immigrate
to other lands, there is to the best of my knowledge, no use whatsoever
of the term ethnicity, neither in academic jargon,.
nor in popular parlance. In the United Kingdom, then, the real ethnic
groups are the immigrant black or Asian groups, almost irrespective of
which "tribe" or "nation" they belong to. Conversely white immigrant groups
living in the United Kingdom, from Australia or South Africa for instance,
are never referred to as an ethnic group.
So, while ethnicity may have some uses, it seems te be used often in a
sort of catch-all manner, and certainly has no clear- cut line, neither
of total definition as against other forms of groups, nor any clear-cut
demarcation as between the different groups that are considered ethnic.
In fact, Nathan Glazer and Daniel Moynihan, formulating the concept of
ethnicity specifically within an American context, have n illusions
as to its problematics and its divisiveness and specifically refer
to the dangers of "political realities.. .(which) seem to provide a good
number of the ingredients for a greater degree of ethnic conflict."(43)
In many instances the presumed divisiveness of different - tensions. Thus,
the terms ethnicity and group, largely used in order, at least partly,
to forestall use of the more threatening (to the state) term of nation,
failed to prevent the disintegration of Yugoslavia and Czechoslovakia.
Further warnings as to the inability of ethnicity as a concept to avoid
real-life problems is to be seen in other articles in the anthology edited
by Olazer and Meynihan. Talcett Parsons argues that ethnicity is an extraordinarily
elusive concept and very difficult to define in any precise way, while
William Petersen notes that the concept of ethnic groups would be "...unobjectionable
except that it is used precisely to designate a variety of entities: some
would include a religious determination under the rubric, others not;
some would identify a race as an ethnic group, while for others the latter
is a smaller subdivision of races; and so on.(45)
Possibly the most devastating criticism of ethnicity is that by Colin
Tatz, who examines its meaning in its historical-philological context.
"Ethnic" is overused and misused without the faintest regard for its
meaning. It comes from the ecclesiastical Latin ethnicus, which
means heathen; it also derives from the Greek word for nation, but specifically
for the non-lsraelitish nations, the Gentiles.
Since 1470 it has meant gentile, heathen and pagan. It is time to stop
misusing this term in the vocabulary of multiculturalism; it is not a
soft synonym for migrants, nor non-English speakers nor blacks
the stuff of science, the stuff of law, the stuff of social reality is
the problem of definitions with the accompanying inevitable and intricate
problems at the margins.
Three points emerge and must be strongly stressed:
1) tribe is not the most problematical term in social science or in social
and political reality;
2) alternative suggested concepts, such as ethnicity, are no less
3) the use of terms has importance-social, political, legal. Thus
to refuse to recognize
nationhood means almost inevitably to deny the right to statehood; conversely,
where there is a recognition of nationhood, there is certainly room for
according statehood.(47) Similarly, no recognition of a religion may mean
no right to practice rituals or protect sacred sites, whereas recognition
opens up all sorts of legal possibilities.
The question then, is: do similar considerations apply to tribes?
Dose the recognition of a group of people as a tribe guarantee them
any rights (both as individuals and as a collective) which would
be denied them if they were to lack such recognition? Could the denial
of tribal status lead to the possible denial of certain group
rights? Are the possible dangers of recognizing tribalism (such
as factionalism in new countries) of greater danger than the potential
benefits of tribal rights, rights to land, to legal recognition of customary
practices, to the existence of valid alternative legal systems? Would
the use of other terrn e.g. definitions attuned to language or ethnic
group differences-in any way minimize the dangers where friction between
groups already exists: or alternatively, would provide a greater or lesser
prospect to assure group rights?
I wish to argue that there are some rights that can best be protected
by a clear recognition of the existence of a tribe, as distinct from
other types of groups such as language, ethnicity, or religion. Yet,
for as long as the term "tribe" is presented in negative terms, there
wiII be no prospects of a proper discourse on this issue. Examples
of negative approaches need to be
In 1975, Morton Fried, a leading anthropologist, attacked the concept
of tribe and argued that there were no "highly discrete political units
in pre-state. He notes that the word tribe is of ancient origin, based
on the Latin "tribus", used in differentiating population groupings in ancient
Rome, as had been done in earlier large cities, such as in the city-states
of Ancient Greece.(49) However, Fried suggests that there are
far reaching implications for the difference between tribe in the ancient
and modern worlds. Today, for instance, the word tribe has taken on negative
connotations, and it is generally associated with primitive social groups.
(in a sense this is really begging the question, since there are a number
of leading anthropologists who have argued that the concept of primitive
should be seen as positive, a description of a society with many desirable
qualities, from which much may be learned, as will be discussed later).
Thus, Fried goes on to state that:
The nature of the concept of tribe has been a confused and ambiguous
one from its earlier period of utterance. Scrutiny of the
Crack materials, for example, shows variations in the significance
of kinship, as opposed to non-kin relationship, in the composition
of tribal membership,…
Similarly, variations exist in the degree and type of political cohesion
in such units insofar as they represent populations integrated
for the achievement of diverse internal or external goals, management
of the community or warfare.(50)
on the Greek city states in order to contrast them with what he sees as
the negative role of tribes in undermining national unity in new nation-states
of the modern world.
Thus the claims that it was not because of tribalism that there was an
"absence of centralized government as a characteristic of classical
Greek policy" and then adds "This point is important because analyses
of third world political developments, particularly those relating to
Africa, are often couched in the most pessimistic terms, with tribalism
being described as an unavoidable obstacle to political modernization."(51)
He also notes that the original use of the term tribe in English as taken
from the Latin, was in the translation of' the Hebrew word, "shevet,"
denoting the biblical tribes.
These were perhaps the epitome of what tribe connotes, based on a common
ancestral lineage. This point is then used by Fried to argue that
many groups known as tribes do not fulfil the essential characteristics
of tribe, and should really be considered to be nations or ethnic
Fried also seems to exhibit a great degree of sensitivity to the categorization
of tribes as primitive (a concern shared by many others). Yet the
truth of the matter is that there is a vigorous, ongoing debate in
the social sciences, particularly in anthropology, as to the essential
nature and meaning of primitivity. Stanley Diamond has argued very
forcefully that the very idea of primitive should be seen in positive
terms, and that the characteristics associated with it have significance
both for understanding social reality and for clarification in the social
sciences.(52) Thus Diarnond writes:
The search for the primitive is the attempt to define a primary human
nature. Without such a model, or…without such a vision, it
becomes increasingly difficult to evaluate, or even to understand, our
contemporary pathology and possibilities.(53)
the importance of such an approach for understanding different areas of
human conduct and behavior (such as medicine, for example), Diamond concludes
that in certain "basic and essential respects…primitive societies illuminate,
by contrast, the dark side of a world civilization which is in chronic
In a similar vein Robin Clarke and Geoffrey Hindley state categorically
that the theme of their book, The Challenge of the Primitive,…is that
Western man is lost in a search for happiness, and may begin to find his
only if he is prepared to look into the world of the primitives, a world
that is fast destroying.
The objectives of that primitive world have been different from ours.
Our quest for progress has led us to dedicate the energies of our
society to maintaining imbalance and tension as a motive force. The
primitive society on the other hand, devotes its resources to the maintenance
and nurturing of a social equilibrium, inherited from the past but always
adaptable to the present.(55)
Ashley Montagu pinpoints the key issue with direct relevance for the issue
of the term tribe.
There is a perfectly sound sense in which the term "primitive" and
the concept for which it stands may be used, but not until
we have disembarrassed ourselves of the unsound ways in which
the word is employed shall we usefully be able to employ it at all.(56)
to debates of this nature among Anthropologists, sociology has almost
totally ignored the framework of a tribe. Most basic textbooks make no
reference whatsoever, to tribe-or when they do, there do so only
to refer to anthropological research. Yet, the essence of a tribe is almost
the epitome of the gemeinschaft that Ferdinand Tonnies(57) spoke about
so favorably. The distinction between a gesellschaft and gemeinschaft
is out of the classic
characterizations cf sociology, but very rarely is the tribalized as an
example gemeinschaft of properties. Yet tribes is focus around the
relevant variables of kinship and neighborhood.
Further, in both sociology and law there is an increasing search for the
essence of community (in sociology)(58) and communitarianism (in
Law).(59) Both disciplines might find in the qualities possessed by tribes
a useful model for the kind of social living that is being theoretically
Fried himself seems to concede this much. In a final three page chapter,
in which he notes the calls of other writers for the preservation of tribalism,
he accepts that "a distinction between destructive nationalism and
a more pacific tribalism... is in my opinion a sound idea.(60)
Admittedly Fried seems to be referring mainly to smaller groupings. He
may indeed be correct that there is a need to re-consider some of the
categorizations that have been made in the past as to tribe, perhaps especially
when dealing with particularly large groups numbering in the millions,
but then other characterizations also carry their marginal examples that
suggest the possibility of endless re-definition.
Having posited tribe in contrast to state, I should stress that my intention
is not to dismiss the state; I certainly sense no anarchist future in
which the state wilI disappear. What I wish to argue is the need
to present the state in proper perspective, including especially its limitations,
for only thereby will it be possible, I believe, to fully understand the
nature and the role of tribes in the modern world, irrespective
of whatever appellation is applied to them; or for that matter also for
other constituent social categories found within the modern state. The problematics
of the term "tribe" can only be partly resolved when the problernatics
of the term "state" are fully perceived.
Only if we come to terms with the inaccurate descriptions, only if we
can see beyond the ensuring reluctance to recognize tribe that these
inaccuracies engender, only then can we begin to confront realistically
and meaningfully the prospects for tribal life (under whatever name) in
the modern world.
Two of the most significant efforts in this regard are the broad range
of opinions with contrasting viewpoints, carefully worked out, in
the anthology edited by Peter Gutkind,(61) and the thoughtful and penetrating
presentation by Marxist anthropologist, Maurice Godelier.(62) The latter,
indeed, while not at all enamored of the concept of tribe, does note the
shortcomings of many of the critics of tribe, especially those that are
conceived within an evolutionary framework. Godelier suggests that
the exploitation of a concept for ideological
ends cannot lead to its demise, even if as a result it becomes "…a concept
which fails to recognize the reality it expresses. The concept itself
is quite innocent of its own effects(63)
Further he notes that difficulties in concepts of "tribe" and "tribal
society" are not isolated or unique. They are found in other guises as
adjacent or like concepts are made clear: concepts of "band," of "stateless
society", concepts designating other terms under which the social relations
of other societies appear and around which people build general schemes
of the social evolution of mankind.
For this reason we cannot hope to improve on the concept of tribe, cure
it of all of its ills in isolation: we must consider other concepts
and improve them all in turn.(64)
Finally he concludes that:
... we shall not be able to get rid of the difficulties involved in
the content of the concept of tribe; we cannot silently bury it with a
mere death sentence, or stigmatize those who continue to use it with the
epithet "infamous" empiricism. In so far as new concepts will not appear
to resolve our problem, this concept of the 'tribe' will continue to be
used in more or less refined forms and will deliver the same goods and
the same kind of bad service. Until it loses its object it will not lose
with the effort to improve the scientific enquiry, in fact as a direct
consequence of such activity, he argues that:
We must continually attack the political and ideological manipulations
by which the concepts of "tribe' and 'tribalism' are used
as a tool by the powers who dominate and oppress the young
nations of the Third World. These powers often make it seem that tribal
conflicts are modern contradictions which have their origins in the functioning
of pre-colonial structures, in fact, these conflicts are explainable primarily
by reference to colonial domination. while we must not fail into this
trap and, in the name of anthropology, become accomplices
of such arrant nonsense let us not forget that their
value as evidence and political practicality derive from the structural
characteristics of former societies of the Third World and from their
development A scientific analysis of these structural characteristics
is therefore not a disinterested exercise of pure thought, it is an urgent
task involving thought and practical reasoning.(66)
suggest that the prospects of doing so are far more likely after examination
and evaluation of the nature of tribe per se and of the manner in
which the term is now being used, than as a result of any outright rejection
and wholesale denunciation. In fact, Godelier himself, in later chapters
of the book, carefully analyzes Marxian approaches to primitive society;
and this section of the book is entitled "Dead and Living Ideas in Marx's
Thinking on Primitive Society".(67)
In the book edited by Gutkind there is a balanced debate, in which the
majority of the participants adopted stance critical of the term
tribe, with varying degrees of intensity, while a minority of the writers
argue for its validity. The nature of the debate in general is well presented
in the opening sentence of the preface, where Gutkind quotes from one
of the participants, Clyde Mitchell: "The emotions aroused by the
topic of 'tribalism' in erstwhile colonial countries has made it
a topic outside objective scientific enquiry'(68) but as Gutkind
himself adds, this particular collection of articles avoids, for the most
part, the faults that have affected the work of others.
One of the most interesting and revealing contributions is by Herbert
Chitepo, a political activist, formerly involved in the political
struggle for the independence of Zimbabwe, who explains that definitions
of "tribe" inevitably "… reflect an implicit subjective judgement by the
user of the word that people he is talking of are "primitive, that is
to say underdeveloped, backward and even inferior certainly to himself-for
whoever heard anyone call himself primitive."(69) Perhaps, on this
last score, somebody might wish to do so if he were to read the important
work on the primitive by those authors,(70) as noted earlier, who expound
on the importance of primitivity and its many advantages, particularly
in the modern world. But aside from such a critical approach, the definition
of tribe does not necessarily correlate with primitive or even backwardness,
certainly not with inferior except by those who twist it for their
own ends, or those who, surrendering to these distortions, then relate
critically to the term within these narrow confines.
In contrast Aidan Southall, though also critical of the concept, rightly
notes some of its ambiguity "It is in the political context that
tribalism is regarded with particular disfavor and in a number of social
and economic contexts also. But those who rightly stigmatize the carryover
which is tribalism in these contexts would in others often favor it, especially
with respect to certain family values and to aesthetic modes of expression,
as for example in music, dancing and plastic arts.(71) But the issue of
tribalism is, of course, not just of arts and culture it is also of religious
beliefs and rituals, of customary practices and law, of philosophical
concepts of land and ecology, of kinship patterns and familial relationships,
of economic interactions and obligations, and of group loyalty and allegiance.
These are some of the real issues of tribes and they are so real and meaningful
that they have survived the years of colonial dispossession, of political
subjugation and cf personal and group humiliation.
However, Southall concludes that Western anthropologists will have to
learn to adapt themselves to the approaches of their non-western
colleagues "whose fathers or grandfathers were members of non-literate
societies, to remove the colonial taint,' and to reject the uses of the
terms primitive and 'tribe' in reference to societies in the modern world,
and to replace them with the term 'ethnic group"(72)
Yet it is specifically an African anthropologist, Victor Uchendu,(73)
in the very next chapter of the anthology, who pleads for the right of
tribal people to be heard and respected. And perhaps most pertinently
he challenges not only western anthropologists, but African intellectuals,
who fail to ask tribes people as to their needs and desires. And so Uchendu argues
pointedly that…the dreams and the frustrations of the African elite must
not be misplaced,(74) on to those still living in the tribe. He argues
that the tribes person "is heir to rich and diverse cultures, (yet) is
still pictured as living in an undifferentiated, small-scale, society
where social experience and historical processes are assumed to impinge
equality on all bearers of tribal cultures."(75) Important as it is to
combat the negative impressions, it is no less essential to ensure the
presentation of the rich and diverse cultures."
Indeed, Uchendu cuts through to the heart of the issue of tribalism in
modern Africa, claiming that much of the tribal tensions that have
arisen have been as the consequence not of inherent circumstances
linked to tribal differences, but a consequence (similar to processes
that occur in many other plural societies even without tribes) of
overlapping inequities and inequalities, where "Imbalance
in development is noted ... between one ethnic group or region
and the other"(76) In fact, part of the reason for the resurgence
of "tribal nationalism" is the awareness of inequality in some of the
newer states. He also warns against those "among the elite who denounce
'Tribalism' though they exploit tribal sentiments in order to establish
their tribal base."(77) Finally Uchendu ends with a plea to allow
the tribal people themselves, these still living in their traditional
settings to determine the rate of development, and specifically which
of their institutions they wish to change, and which they wish to retain.
In similar vein, Colin Legum, a British Journalist, with much knowledge
of and experience of Africa, in a further contribution to the anthology,
expresses the opinion that "Tribalism is Africa's natural condition
is likely to remain so for a long time to come."(78) The basis for such
a prognosis is the fact that similar ethnic groupings in Europe have sustained
their identity and cohesion. Of course Legum could have simplified his
analysis by using the term ethnic group as others have done instead of
tribe since these were the groups in Europe who were serving as his model.
But Legum prefers retaining the term that has been applied extensively
in Africa and in fact essays a definition for the purpose of his essay…"Tribalism,
he writes is the manifestation of over-riding group loyalties by
members of culturally-affiliated society to locally based interests, which
involve tradition, land and opportunities for survival and growth.."(79)
He notes a further crucial factor that "Tribalism must be distinguished
from traditionalism. Traditional systems may pass away while tribal affiliations
remain strongly entrenched in defense of ethnocentric interests...the
'tribal' factor cannot simply be abolished from the academic vocabulary
… What is badly needed are agreed definitions among academics to
fit the modern phenomena. of 'tribe' and 'tribalism'.(80)
In addition tribalism is not inherently anti-modern, even though its internal
political system is basically pre-modern. Tribalism in Africa has
largely survived in its present strength because of the willingness of
traditional societies to meet the challenge of modernization by adaptation.(81)
Indeed, the most notable fact is that "tribalism has by and large been
either an active or at least an acquiescent participant in the process
P.H. Guliver, too, after carefully considering the pros and cons of different
terminology, acknowledging the sensitivity; of the debate over the
term, and examining some of the empirical evidence, concludes that
"one great importance of tribalism lies in its intrinsic flexibility
as a concept, and in its ability to represent a highly flexible social
process: the tribe, variously confined according to circumstances
and need, can be made the unit of reference, the banner, and the cluster
of symbols, for groups of people involved in the manifold upheavals and
opportunities in the contemporary world."(83) And in terms of the legal
problems of that world, the issue is how to preserve the living customs
of a tribe, how to guarantee its group rights, how to assert the importance
of its legal system, and how to protect its individual members from the
intrusive, often repressive, power of a modern state, molded on the model
of an alien culture.
Whatever the nature and the variety of states, and whatever the appellation
to be applied to those groups that have traditionally been known
as tribes, the key issue that needs examination is whether these two forms
of framework are compatible with each other, and how-if there is the will
to do so-the state can accommodate itself to the demands and the needs
of tribal groupings existing within its borders. There should, however
be no illusions on this score; more than any other human groupings-language,
religion tribe poses a threat to the state. It is theoretically
at least, far more comprehensive and more embracing than other conceptual
groupings, and far more than them it offers an alternative source of authority
and of allegiance, one which is not focused on only one particular aspect
of social life, such as belief system as for religion or means of communication
as for language, but which touches on both religion and language, and
in addition on obligatory customs dealing with family life, economic arrangements,
social control, concepts of property ownership, rights to land and environmental
It is specifically this that differentiates tribe, by whatever name, and
ethnicity, again by any name whatever the overlap and similarities,
tribe, both in its historical context, and in its present potentialities,
offers an alternative means of providing those qualities and properties that
are characteristic of a state, and, in particular for the purposes of
this essay, its legal system.
There are ideological and theoretical implications that make the nature
of interaction between tribe and state vastly different. Firstly,
in historical terms, it is widely held, especially by those who see
historical development as being an evolution in stages, that the tribe
was a precursor to the state,(84) a stage in the onward match of
human history, which, in a world of nation-states, has fulfilled
its historical role, except for a number of basically irrelevant groupings,
living on the margins of society, scattered in various places all over
the world, and numbering in toto no more than a few tens of millions,
with many of them in any event being drawn inexorably into the vortex
of modern industrial and technological life.
It is partly on this basis that there is such a great insistence on the
choice of ethnicity over tribe.
The latter seem to indicate some sort of atavistic regression into a dwindling
past. What I wish to suggest is that the concept of tribe, the existence
of tribe, is perfectly compatible with the needs of a state. Tribe
and state may co-exist in the modern world. The "threat", if so be it,
is not to the existence of the state per se, but to the nature of the
state. The pluralism must come to terms with this fact; in fact it may
well be that it is state that is more problematical than tribe.
To probe this issue, it is necessary to examine the essence of what is
a state-its sovereignty.
However, it is specifically on this issue that there art differing conceptions,
some of which are antagonistic to the idea of a shared control and
authority, others of which are compatible.
We have noted already how some states are shading some of their sovereignty
in terms of their external powers by voluntarily submitting themselves
to the surveillance of larger supra-national authorities. Can the
state similarly divulge itself of some of its internal sovereignty--as
is basically the case in federal systems? Can such concessions be made
by a state not on the basis of geographical entities, precisely mapped
out as in a federal system, but in respect of looser amorphous groupings,
as in a true pluralistic framework?
It is possible for tribes to change, to become part of larger entities
such as states, to adapt their way of life, and yet to retain the
uniqueness of their tribal identity, without endangering the state, without
having a divisive impact, without being involved in conflict with either
tribal groupings, without the insistence on endogenous marriage patterns
and exclusive membership rules, and without elevating the biological nexus
to a supreme or sacred rule.(86) To succeed in avoiding all these pitfalls
will indeed require plasticity and capacity for change as also a simultaneous
and parallel ability on the part of states to adapt to a tribal reality.
A mutual re-assessment and an interactive re-molding of the nature of
both entities, raises prospects, serious and meaningful, of a new style
of political settlement.
The fact that, in Europe, tribes were absorbed and disappeared is no necessary
deterministic historical precedent for a repetition in Africa and
Asia-or for that matter in America or Oceania. The state that absorbed
was often indeed an empire crumbling at that, and based often on
a fragile concept of divine right. Peter Skalnik tentatively raises some
of these issues to meaningful intellectual debate. Based on
one particular ethnic or tribal conflict in Ghana, Skalnik suggests
that there is a deeper truth embedded in the conflict that he carefully describes.
From a theoretical point of view he draws a distinction between authority
and state power.
He describes the unfortunate consequences that are liable to flow from
an injudicious and inequitable application of the latter, particularly
in situations where the state itself lacks full legitimacy-not because
of tribal loyalties, but because of its failure to fonction effectively
in the daily lives of its citizens.
Skalnik openly challenges many of the truths abounding in Africa today
with its state boundaries and state power. More important, though,
he hints at an alternative model, which though it admittedly draws
on only one case-study, may, as he suggests, be a symptom of similar
processes existing elsewhere-as a result of which he suggests that there
is an "ultimate inadequacy of the concept of the concept of the "state"
in indigenous Africa."(88)
Discussing the nature of authority in the tribe under discussion, the
Nanumba, he argues that, for them, the chief was not the source of
power, but the embodiment of consensual authority in terms of modern
sovereignty, this could be presented as sovereignty residing not with
the centralized power of the dominant figure, the chief, but with the
people. Indeed, the very longevity of the situation-from pre-colonial
times and into the post-independent state was the result of it being a
"powerless authority" of naam"(89) He then goes on to describe the naam
in the context of its continued survival within a larger political entity-whether
under a foreign colonial power or in a modern independent state. "Naam
is not an opponent of imported state power, colonial or post-colonial,
rather it is its virtual alternative. The two systems communicate
with the people in their spheres in quite different languages. Power seen
as "illegitimate" and "violent" is an attribute of the state, and is alien
to the authority of naam and its incumbents in Nanum and perhaps many
polities of the "archaic" world seem to suggest examples of a social order
more stable and a sub specie aeternitatis more acceptable and useful to
all members than any historical form of the state. Therefore Nanum is
not a state in the conventional Western understanding of the concept,
whether we try to call it early, specific African or primitive.
Skalnik poses painful and penetrating questions for the existing and static
political structures of Africa. He suggests a new approach to an understanding
of the political failures that have so characterized Africa in the years
of post-colonial independence. He writes: "The explanation for the so
often lamented instability of modern states in Africa and elsewhere in
the under developing world is to be sought in the struggle between their
West-imposed state systems and the tenacious indigenous social and political
institutions. I suggest that these African indigenous institutions show
the world that without the state a society could function quite well,
even better than with it."(91)
Part of the tragedy of the present political situation in Africa is that
"...the alien state mode was imposed on the indigenous systems of authority
with such a vigor that in many parts of the continent whole nations lost
their identity and orientation."(92)
Skalnik explains that his example forms one particular instance of an
escalation of conflict into a violent struggle between two opposing and
intermingling tribal groups; the research was carried out in order to
".. investigate indigenous African alternatives to violent power,(93)
so as to "explain why modern Africa is so ridden with coups, tyrannies
and atrocities." he claims that:
"The whole world can learn from African alternatives to violent power.
The institutions of the authority of chiefs and elders, and the various
institutionalized checks on these incumbents of authority, which spontaneously
and independently developed in Africa an elsewhere, could serve as an
inspiration to all."(94)
not saying so specifically, Skalnik directly challenges these who set
the tribe as an artificial construct, created to serve the needs of the
colonial powers. Having already described how the chief's authority
was basically an embodiment of social consensus, he then turns up side-down
the contention of those who see the tribe as a colonial imposition by
stating categorically that:
The purpose of the article has been to show that the State as a specific
social and political phenomenon was 'invented' in Africa
by outsiders because they were looking at African institutions like the
Naam of the Nanumba through Eurocentrist eyes.. By labelling...a
certain kind of African political organization a 'state' one does disservice
to African history and the Africans themselves because not only is African
originality forced into a Eurocentrist straight-jacket but
worst of all this bias denies the possibility that, in Africa viable alternatives
to the state, as it evolved in the West, may have developed. The state
is by and large a Euro-Asian invention, whereas the Africans gave the
world their systems of chieftainship or their ingenious systems of kinship-based
presentation opens up new possibilities for both academic theorizing and
practical politics-but it raises perhaps more questions than it resolves.
Going beyond the question as to whether his empirical data justify his
conclusion, or whether one case-study provides a model for a total continent,
the basic question is whether in Africa, the state is to be abandoned,
as an irrelevant western invention, so that the ethnic group, known also
as tribe, may reclaim its position of grandeur as the basic unit
of social and political life; or whether tht tribe, with its primordial
tendencies and the pressures that they create for parochial concerns,
should not be abandoned in favor of the state, even if it is a transplanted
and alien invention; or whether an accommodation must be sought between
the tribe representing the old traditions, and the state representing
the basic unit of the modern world.
And what of the prospects of regional or continental unity? Will not an
emphasis on the tribe undermine these strivings as so articulately presented
by some of the dominant figures intellectual and political--of the
first decades of African independence-including cultural concepts
of negritude, philosophical manifestations of a special African road to
socialist, and political earnings for pan-African unity.(96)
Indeed, it is of no small interest to note that, while in Africa, the
prospects of some over riding unity are receding (and the few attempts
at partial, regional arrangements have generally broken down), the states
of Europe have moved to closer unity, whether in the European Union or
the larger culturally-oriented Council of Europe, or even the pan-continental
security organization All this took place with little ideological trumpeting
of a vaunted shared purpose,(97) that so characterized African in the
60s and 70s as hopes that the Organization of' African Unity would move
beyond a mere state-bound organization into a real union that was embodied
and emblazoned in its name. As already pointed out, there is a paradox
here of African states proudly guarding their new-found sovereignty, while
their ex-colonial overlords move fairly rapidly into a newer and tighter
association of states.
The point must be made crystal clear it is not narrow parochial tribalism
that is hindering Africa from reaching out into common markets, trans-national
courts of human rights, continental conventions on environmental protections,
free passage between states; it is the existence of states, and the political
leaders of separately trying to build up a loyalty among the citizens,
often through one-party states, that, at this moment in history, might
constitute the main stumbling-block to larger unity.(98)
From a sociological point of view, one could argue for layers of social
reality at the immediate personal level of the need to assure the individual
of his human rights of free and unfettered expression of his autonomous
self; then, the need for expression of affinity and affection within an
intimate familial setting, whether nuclear or extended; beyond that the
need for membership as citizen in a state that will guarantee protection
of rights and provision of basic social and economic needs; and ultimately
the need for a larger striving at the continental and world level for
a common recognition of shared humanity, the basis of those human rights
that then revert back to the individual and his own individual rights.
In addition, there may be a need for a further layer, between family and
state, that will answer to the needs of belonging; this may be found in
the form of membership of a religious or ethnic group, or even of an ideological
or cultural entity-or of membership of a tribe, in as much as a distinction
may be drawn, as I have argued, between ethnic group and tribe. To deny
the support and vitality that such membership may provide is to negate
one of the needs that are an essential of full social life.
For those without tribe, it is clear that religion or ethnicity or even
language or ideological connections, provide adequate groupings(99)-but
that is no reason why for those who have tribes as a membership category,
they should be deprived of it merely because historically tribes
seems to be doomed, as occurred in Europe, or because they seem to threaten
the unity of a state, or because they conjure up pictures primitivity.
The problem is not unique to Africa, though it certainly takes on different,
if more acute, dimensions there, because of the nature of its pre-state
society. The problem of belonging, the underlying tensions of artificially-created
states lacking the attributes of nationhood, tacking a common language
or a common belief-system, is rife throughout America, Asia and Oceania.
In addition, the idea of shared sovereignty has been developed by a group
of Dutch jurists and philosophers, and has aroused little interest or
even notice outside of the Netherlands. The term that they suggest is
'sphere sovereignty,' that is an acknowledgment of the fact that there
might well be spheres within a state for which limited sovereignty could
be granted, relative to the concerns of that sphere of social activity.
J.van der Vyver explains that "The doctrine of sphere sovereignty... developed
under the auspices of neo-Calvinistic sociological thought," and
denotes an enclave of competence belonging to a social entity of its own
accord-without that social entity depending on any other person or institution
for the possession or exercise of those powers"(100) The leading
exponent in recent times of the idea is Herman Dooyeweerd, who describes
a situation where, within one society, there would be different social
structures, each entitled to make its own rules.(101)
Sphere sovereignty opens up possibilities of shared sovereignty, allocated
according to the functions that any institution or corporate body
exercises. Included in the possibilities are a family unit, an ecclesiastical
denomination, business corporations and other voluntary associations-
Each is presumed to be sovereign within its own sphere, but also subject
to the state's courts of law, which are presumed to act from a cognizance
of shared sphere
Sphere sovereignty presents no simplistic solutions, but involves a sophisticated
presentation of socio-legal reality. It leaves the ultimate task of determining
the juridical validity of any act in the hands of the state courts. This
is precisely what state courts have done in profusion over the years
for tribes. But what they lacked was a theoretical framework which would
clarify the nature of this judicial activity, allowing them to recognize
full extent of the autonomous source of authority from which the customs
at issue derived their obligatory power.
Given the many groupings in Europe for a new understanding of political
structures from the European Union moving toward greater integration,
to the attempt at a Commonwealth of countries formerly part of the
Soviet Union-it would seem that the idea of sphere sovereignty contains
many penetrating and fruitful insights. They may well serve to help elucidate
also the nature of tribal authority in new (and not so new) states.
Furthermore, a parallel model exists in practical terms that is evoking
much interest- namely that of consociational democracy as practiced
in such a special manner in Switzerland.(102)
Linked also to this idea, is that of a civil society, also being increasingly
touted in many places; though largely parallel to the state, it preserves
some distance from it.(103) Ideas of this nature are also of great import
in evaluating the nature and role of tribal communities in the modern
In fact, it is rigid, and possibly antiquated, ideas of the citizenship
that are associated with state, that is preventing the creative development
of a synthesis between the state and tribe as one of its- constituent
elements. More than this, the very prospect of compatible shared loyalties
may be based on tribal models from the past. In sum then, much of the
the use of the term 'Tribalism' is dealing with problematics not much
different from those pertaining to "state." If we realize this simple
factor, we shall be able to better comprehend the nature of tribalism
and perceive its latent potentialities in the making of the New Africa
on the threshold of the third millennium.
the borders of Africa, see Ian Brownlie, African Boundaries: A Legal and
Encyclopedia (London: C. Hurst, 1979)
pluralism see Leo Kuper and M.G. Smith (eds.), Pluralism in Africa (Berkeley:
University of California Press, 1971); John Rex, "The Plural Society in
Sociological Theory,' British journal of Sociology 10 (1959) p. 114.
(3). A recent
book argues that the three monotheistic religions, Christianity, Islam
and Judaism should be considered as one religion. See Allan H. Cutier
and Helen E. Cutler, The Jew as Ally of the Muslim: Medieval Roots of
Anti-Semitism (South Bend: University of Notre Dame, 1986). The
opening sentence is "Judaism, Christianity and Islam are not three separate
religions, but three branches of the same religion. the religion
Mala Tabory, Language Rights as Human Rights, Israel Yearbook on Human
Rights 10 (1980), p. 167, especially at pp. 188-189 for (the discussion
of distinction between language and dialect. See also Stanley Rundle,
Language as a Social and Political Factor in Europe (London: Faber and
for instance, G.A. Ghuryre, The Scheduled Tribes (Bombay Bhaktal, 1963).
term ethnicity was used originally partly in order to avoid using the
term race, which was coming into disfavor.
Tonnies, Community and Society (Fast Lansing: Michigan State University
Natan Lerner, Group Rights and Discrimination in International Law (Dordrecht:
Martinus Nijhoff, 1991). See also collection of articles in Israel Yearbook
on Human Rights, Vol. 21(1991)
for instance, Milton Gordon, Assimilation in American Life: The Role of
Race. Religion and National origins New York: Oxford University Press,
Mboya, Freedom and after (London: Andre Deutsch, 1963).
Ibid, pp. 67-68.
Songhor, "Negritude et Humanisme (Paris: Editions du Seuil, 1964); see
also Maulana Karenga, introduction to Black Studies (Los Angeles: Kawaida
Senghor, On African Socialism (New York: Praeger, 1964)
detailed discussion on the status of these groups, see Leon Sheleff, The
Tradition: On Customary law, common Law and Legal Pluralism (London: Frank
Abner Cohen, Custom and Politics in Urban Africa (London: Routledge and
Tarnmany Hall politics, see Martin Sheffer, "The Electoral Foundations
of the Political Machine: New York City, 1884-1897" in J. Silbey, A. Boque
and W. Flanigan (eds.), the History of American Electoral Behavior (Princeton:
Princeton University Press, 1978), p. 263.
ethnic voting in the United States, see Robert Lane, The Way of the Ethnic
in Politics," in H.. Bailey and E. Katz (eds.), Ethnic Group Politics
(Columbus, Ohio: Charles Merrill Publishing, 1969), p. 85
Mazrui, The African Condition: A political Diagnosis (London: Heinemainn,
(20). Ibid., p. 43
(21). Ibid., P. 44
(22). See for instance Max Weber, The Protestant Ethic and the Spirit
of Capitalism (New
York: Scribner's, 1958)..
a recent conference of Asian sociologists, several papers were presented
the residual impact of Confucianisrn in several countries of Asia, including
Proceedings of 7th Conference of Asian Sociologists, held in Beijing,
the United States, for instance, there have been endless debates as to
whether it is a
society based on class or not. There have also been attempts to describe
the society as being
based on principles of caste, this at a time when there were many legal
on Blacks. See Oliver Cox. Class, Caste and Race: A Study in Social Dynamics
Monthly Review Press, 1959).
for instance, Francis Bebey, African Music: A People 's Art New York:
a brief historical analysis set H.F. Morris, "The Framework of Indirect
Rule in East Africa," in H.F Morris and James Read, Indirect Rule and
the Search for ,Justice: Essays in East Africa Legal History (Oxford:
Clarendon Press, 1972), p.3.
all radical movements encounter the problem of the relationship between
leaders, particularly intellectuals and thinkers in the vanguard of a
political struggle, and those on whose behalf they struggle. Socialists
and national struggles in many parts of the world have been characterized
by such difficulties, but they may take on added pertinence when dealing
with indigenous people.
Herberg, Protestant, Catholic, Jew: An Essay in American Religious sociology
(Chicago: Chicago University press, 1970).
an anthology of articles dealing with such issues, see Leroy Vail (ed.),
The creation of Tribalism in Southern Africa (Berkeley: University of
California Press, 1989).
Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi
and Zambia (Cambridge: Cambridge University Press, 1985).
Thomas Pakenham, The Scramble for Africa (London: Weidenfeld and Nicolson,
David Lamb, The Africans (New York: Vintage, 1984).
Nwabueze, Constitutiona1ism in the Emergent States (London: C. Hurst and
(34). lbid., p.83.
(35). Ibid., p.89
(36). Ibid., p.118. Because of the many tribes, Nwabueze basically favors
federalism, but claims that the framework in Nigeria was badly set up.
See also Ugbana Okpu, Ethnic minority Problems in Nigerian Politics: 1960-1965
(Uppsala: Studia Historica Upsaliensia No. 88, 1977).
Leo Kuper, Race, Class and Power: Ideology and Revolutionary Change in
Societies (London: Duckworth, 1974).
for instance, Dunstan Wai (ed.), The Southern Sudan: The Problem of National
integration (London: Frank Cass, 1973).
for instance, G.A, Ghurye, The Scheduled Tribes. op. cit.; Other groups
are the Backward Classes and the Scheduled Castes. For a good discussion
of the historical,
legal and constitutional background to this preferential treatment, see
G.P. Verna, Caste
Reservation in India: Law and the Constitution (Allahabad, India: Chugh
See also Marc Galanter, "The Problem of Group membership: Some Reflections
Judicial View of Indian Society," journal of the Indian Law Institule,
4 (1962), p. 331.
46 of the Constitution reads: 'The State shall promote with special care
educational and economic interests of the weaker sections of the people,
and, in particular, of
the Scheduled Castes and the Scheduled Tribes, and shall protect them
from social injustice
and all forms of exploitation."
comments by lrving Horowitz in the Preface to the second edition of the
book, Three worlds of Development: the Theory and Practice of International
Stratification New York: Oxford University Press, 1966).
N. Dyck (ed.), indigenous Peoples and the Nation-State: Fourth World Politics
Canada, Australia and Norway (St. John's Memorial University, 1985).
Glazer and Daniel Moynihan (eds.), Ethnicity: Theory and Experience (Cambridge:
Cambridge University Press, 1975), p.24.
Parsors, 'Some Theoretical Considerations on the Nature and Trends of
of Ethnicity," in Glazer and Moynihan, ibid., p.53.
Peterson 'On the Sub-nations of Western Europe." in Ibid.> p.l 81.
Tatz, Aborigines and Uranium and other Essays (Richmond. Victoria: Heineiman,
1982), p. 6; originally published as article, "Aboriginality as Civilization,"
Quarterly March 1981, p. 41.
James Crawford, The Creation of States in International Law (Oxford: Clarendon
Press, 1979). On the specific issue of the creation of constituent states
within a larger federal
state, see Eme Ekekwe, Glass and State in Nigeria (Lagos, Longman, 1986),
Part 4, Thts
Debate on State Creation," pp. 154-194.
Fried, The Notion ofTribe (Menlo Park, Col.: Cumings Publishing Co.,)
(49). Ibid., pp. 3-5.
(50). Ibid, p. 5
(51). Ibid., pp.5-6
Diamond, In Search of the Primitive: A Critique of Civilization (New Brunswick,
N.J. Transaction Books, 1974)
(53). Ibid., p. 119.
(54). Ibid, p. 160.
Clarke and Geoffrey Hindley, The challenge of Primitive(New York: McGraw-Hill,
1975), p. 9. See aIso Pierre Clastres, Society against the state NewYork:
Montagu (ed.,) The Concept of the Primitive (New York Free Press, 1968)
Tonnies Cornmunity and Society (East Lansing: Michigan State University
Robert Nisbet, The Quest for Community (New York: Oxford University Press,
for instance, Stephen Mulhall and Adam Swift, Liberals and Communitarianism
(Oxford: Blackwell, 1992).
op,.. cit., p. 113.
Gutkind (ed.), The Passing of Tribal Man in Africa (Leiden: E.J. Brill,
book is a reprint of journal of Asian and African Studies (1970) vol.
5, Nos. 1 and 2.
Godelier. Perspectives in Marxist Anthropology (Cambridge: Cambridge
University Press., 1977), Chapter 3: "The Concept of the Tribe.: A Crisis
Involving Merely a
Concept or the Empirical Foundations of Anthropology itself" pp. 70-98.
In general, see also
his Marxism and Anthropology: The History of a Relationship.(Oxford: Clarendon
1983). Challenge of the Primitive (New York)
(64) Ibid., p. 95.
(65). Ibid, pp. 95-96 (italics in origin)
(66). Ibid, p. 96
(67). Ibid, p. 99
(68). Gutkind, op. cit. at ft. 32, p. 1, quoting from article by Clyde
Mitchell, "Tribe and social
change in South central Africa: A rational approach" p. 83. see also his
lecture, Tribalism and
the Plural Society (London: Oxford University Press, 1960).
(69). Herbert Chitepo, "The Passing of Tribal Man: A Rhodesian View" in
(70). See footnotes 52-56
(71). Aidan W. Southhall, " The Illusion of Tribe" in Gutkind, op. cit.
at ft. 32, p.30
(72) Ibid., pp. 47-48. He adds that this may be a case in which human
feelings have to prevail
over strict logic."
C. Uchendu. "The Passing of Tribal Man: A West African Experience,"
op. cit.. p.63.
(74). Ibid, p. 63.
(75). Ibid, p. 63.
(76). Ibid., p. 64
(77) Ibid.., p. 57. He also notes the arguments by some that anthropologists,
explore those issues which divide modern Africa" (p. 57).
Legum 'Tribal Survival in the Modem African Political System" in
Gutkind, op. cit.,
(79). Ibid, p. 103.
(80). Ibid, p. 103.
(81). Ibid, p. 103.
(82). Ibid., p. 103
(83). P. H. Gulliver (ed.), Tradition and Transition in East Africa: Studies
of the Tribal Element in the modern Era (London: Routledge and Kegan Paul,
1969), p. 35. See also some of the articles included in this anthology
W.J. Argyle, European Nationalism and African tribalism," pp. 41-58; G.
Bennett, "Tribalism in Politics," pp. 59-88; E. Cotran, "Tribal Factors
in the Establishment of the East African Legal Systems," pp. 127-146.
For a good overview of the subject at the textbook level, see Roger M.
Keesing, Cultural Anthropology.' A Contemporary Perspective (New York:
Holt, Rinehart and Winston, 1981)
(2nd Ed.), Part 3, "Tribal Peoples: Towards a Systematic View" pp. 109-174:
and Part 4,
"The Tribal World: The Legacy of Human Diversity," pp 175-376.
for instance Elmer Service, Primitive Social Organization: An Evolutionary
Perspective (New York Random House, 1962). For a critique of this approach,
Fried, the Evolution of Political Society: An Essay in Political Anthropology
Random House, 1967).
numbers of fourth World peoples are estimated at about 50 million throughout
world-but of course there can be no country in this regard, neither as
to what groups t count,
nor as to an accurate estimate of their numbers.
example of change in tribal structure, and intermingling among tribes,
Cohen and John Middleton (eds.), From Tribe to nation in Africa: Studies
Processes (Scranton, Penn: Chandler Publishing, 1970).
Skalnik, "Questioning the Concept of State in Southern Ghana," Social
9(1983), p. 11.
89. Ibid, p. 17.
(90). Ibid.., p. 17
(92) Ibid, p. 26
(93). Ibid., p. 26
(94). Ibid, p. 26
(95). Ibid, p. 26
a succinct, contemporaneous analysis, as seen from a Ghanaian perspective,
William Harvey, "The Option for Unity" Chapter 3, Toward Society
Change in Ghana'
(Princeton: Princeton University Press 1966) pp. 123-170.
should, however, be noted that ever since the end of the Second World
have been raised in favor of a United States of Europe.
one-party states in Africa, sec G. Carter (ed.), African One-Party States
University Press, 1964).
a good discussion of the problematics of state, and of the possible alternatives
see John Hoffman, Beyond the State: An Introductory Critique (Cambridge:
van der Vyver, The Concept of Political Sovereignty," in C. Visser, ed.,
Honor of Ellison Kahn (Cape Town: Juta, 1989), p. 303.
Herman Dooyeweerd, A New Critique of Theoretical thought (Amsterdam: H.j.
K. McRae (ed.), Consociational Democracy: Political Accommodation in
Segmented Societies (Toronto: McClelland and Stewart, 1974); and Arend
"Consociational Democracy," World Politics 21(1969), p. 221.
for instance, John Keane (ed.), Civil Society and the State (London: Verso,
1988). For an interesting analysis of the overlap with civil society and
religion, which also has much relevance for Dooyeweerd's work (though
he is not mentioned in the book), see Andrew Shanks, Civil Society Civil
Religion (Oxford: Blackwell, 1995).
The ideas and opinions expressed in this article are those of the author
and do not necessarily reflect the views of UNESCO.
Les idées et opinions exprimées dans cette article sont
celles de l'auteur
et n’engagent pas la responsabilité de l´UNESCO.