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LRB Vol. 34 No. 17 · 13 September 2012 What is a tribe? Mahmood Mamdani

A new form of colonialism was born in the second half of the 19th

century, largely in response to the Indian Mutiny of 1857. Of its many

theorists by far the most influential was Henry Maine, a brilliant

historian of jurisprudence, barrister, journalist, colonial civil

servant and eventually master of Trinity Hall, Cambridge. Maine made an

eloquent case for the historicity and agency of the colonised, as part

of an attempt to reconstitute the colonial project on a more durable

basis. In doing so, he distinguished the West from the non-West,

universal civilisation from local custom and, crucially, the settler

from the native, thereby laying the groundwork for a theory of nativism.

If the settler was modern, the native was not; if the settler was

defined by history, the native was defined by geography; if modern

polities were defined by legislation and sanction, those of the native

were defined by habitual observance.

Within a few years of the Mutiny, Maine took up a post as legal member

of the viceroy’s Executive Council. Anyone being groomed for the India

Service and, indeed, for the Colonial Service had to read his works.

From Lyall in India to Swettenham in Malaya, Shepstone in Natal, Cromer

in Egypt, Lugard in Nigeria and Uganda, Harold MacMichael in Sudan and

Donald Cameron in Tanganyika, colonial administrators throughout the

empire absorbed his arguments – above all those he put forward in

Ancient Law (1861), the first bestselling book on jurisprudence – and

translated them into policies. The result was a reinvention of ‘the

native’, whose agency and legal personality would henceforth be regarded

as tribal by colonial scholarship and determined as such by colonial

power. Tribalism is reified ethnicity.

It also led to a form of government, incubated in post-1857 India and

applied fully in those parts of Africa conquered after the Berlin

Congress. Its architects claimed that this mode of rule, which they

referred to as ‘indirect’, was no more than a pragmatic solution to a

dearth of resources, making for a weak state with a benign, superficial

impact. But indirect rule was a response to stark challenges at the

geographical extremes of empire, beginning with the Indian Mutiny and

ending with the Morant Bay rebellion in Jamaica in 1865. Together, these

events produced a crisis of mission and of justification. The

assimilationist project, of which the model was the Roman Empire, was

seen to have failed. In the period of reflection that followed, the

colonial mission underwent a change from one of civilisation to

conservation, and of progress to order.

Between 1757 and 1857, the inhabitants of two-thirds of the landmass of

South Asia had been brought under the rule of the East India Company,

either directly as subjects or indirectly as princes under protective

custody. The main outlines of the utilitarian and evangelical agendas –

the ideological turbines of the colonial project – were clear by 1850:

to abolish the Mughal court and to impose British laws and technology,

along with Christianity, on India. But in 1857, all but 7,796 of the

139,000 sepoys of the Bengal Army turned on their British masters.

Liberal utilitarian ideas had sustained a severe blow and the

evangelists were in retreat – largely as the result, in Maine’s words,

of a failure to understand the nature of ‘native Indian religious and

social belief’. He called for a shift of focus, away from the

Orientalist preoccupation with sacred and secular texts to the study of

daily life. The logic of native institutions, he argued, was to be found

in local customs and traditions, less prevalent on the coast, where the

Orientalists were apt to go looking, than in the hinterlands. ‘For it is

in the cities of the coast and their neighbourhood,’ he argued in his

Rede Lecture in Cambridge in 1875,

that there has sprung up, under English influence, a thirst for

knowledge, a body of opinions, and a standard of taste, which are wholly

new in India. There you may see universities thronged like the European

schools of the later middle age … There you may observe an eagerness in

the study of Western literature and science not very unlike the

enthusiasm of European scholars at the revival of letters. From this

part of India come those most interesting samples of the native race who

from time to time visit [Britain]; but they are a growth of the coast,

and there could be no greater mistake than to generalise from them as to

the millions upon millions of men who fill the vast interior mass of India.

Woe betide the utilitarians, ignorant of this ‘real India’, who had

concluded that ‘Indians require nothing but School Boards and Normal

Schools to turn them into Englishmen,’ or that ‘political institutions

could be imported like steam machinery, warranted to stand any climate

and to benefit every community.’ This was a vigorous case for separate

development.

While sketching out a justification of indirect rule, Maine was also

staking a plausible claim to a new science, as he explained in the Rede

Lecture: ‘India has given to the world Comparative Philology and

Comparative Mythology; it may yet give us a new science not less

valuable than the sciences of language and of folklore. I hesitate to

call it Comparative Jurisprudence because, if it ever exists, its area

will be so much wider than the field of law.’ By ‘wider’, Maine in fact

meant more intimate and local: he called for a far richer account of

native institutions, including religion and caste, and reiterated the

idea of a ‘real India’ beyond the India of ‘Brahminical theory’ embraced

by the Orientalists.

A precursor of the great 20th-century ethnographers, Maine was intrigued

by the use of kinship as a basis for social order, including what was

and was not permissible. Indeed, like the later ethnographers, he took

kinship to be the central fact of primitive society. Yet the more

attentive he became to the local and the customary, the more he confined

the native in a separate conceptual domain, shut off from the world of

the settler by a fundamental distinction between stationary and

progressive societies. Culture was cloistered and unchanging in the

non-West, transformative and progressive in the West. Native tradition,

it followed, was a triumph of locality over time. India, from this point

of view, resembled a living museum of custom, in which geography had

replaced history: ‘There is no country, probably, in which custom is so

stable as it is in India.’ It was not difficult to argue from this

position in favour of separate, indigenous, customary law, or to assert

that there were two forms of law, one in the West that was culture-free,

and another outside it that was culture-bound.

What is Maine’s significance today? In Alibis of Empire: Henry Maine and

the Ends of Liberal Imperialism, Karuna Mantena shows the central role

of his thinking in the reformulation of justifications for colonial

rule.[*] It is this that she has in mind when she writes of an ‘alibi’.

But his innovations also had significant consequences for the response

of the colonised to colonial power. Unlike direct rule, indirect rule

aimed at the reproduction of difference as custom, not its eradication

as barbarism. The practice of indirect rule involved a shift from the

language of exclusion (civilised/not civilised) to one of inclusion

(cultural difference): a language of pluralism and difference, born in

and of the colonial experience. Law was central to the management and

reproduction of difference: the identities of colonised societies were

not simply consensual (traditional), they were also enforced from above.

In this sense law was not external to consensus, but an instrument with

which to shape it. One of the keys to the form of ‘governmentality’ – to

borrow from Foucault – of which Maine was the pioneer is the

relationship between law and subjectivity.

Direct and indirect rule were not two cleanly consecutive phases in the

development of colonial governance. Though the accent shifted from

direct to indirect rule, the two continued in tandem: the civilising

mission (assimilation) existed alongside the management of difference

(pluralism). As the language of the civilising mission shifted from the

evangelical to the secular, the practice shifted from religious

conversion to spreading the rule of law. And yet the claims for civil

law as the universal marker of civilisation coexisted with the

recognition of different systems of customary law. This combination gave

rise to regimes of legal hybridity, to legal pluralism, and to a

re-examination of fundamental questions: what is law, what is custom,

and what do we mean by customary law?

Direct rule aimed to assimilate elite groups; the ambition of indirect

rule was to remake the subjectivities of entire populations. It

endeavoured to shape the present, past and future of the colonised by

casting each in a nativist mould, the present through a set of

identities in the census, the past through the driving force of a new

historiography, and the future through an extensive legal and

administrative apparatus. In the course of this triple endeavour, a

system of internal discrimination came into existence, enforced by the

state, which nonetheless claimed the mantle of tradition. The colonised

majority was effectively fragmented into so many administratively driven

political minorities. In Africa, the political minority was called ‘the

tribe’.

What is the tribe? It is very largely a creation of laws drawn up by a

colonial state which imposes group identities on individual subjects and

thereby institutionalises group life. The census provides an

illustration. In post-1857 India, the law enforced, the census recorded

and history memorialised three group-based political identities among

the colonised: caste, religion and tribe. In most African colonies after

the Berlin Conference of 1884-85, the census divided the population into

two broad groups. One was called ‘race’, the other ‘tribe’. The

distinction between race and tribe was vital to the technology of

colonial governance, and the census was an important instrument of this

technology. When a census-taker entered your name, it was either as a

member of a race or as a member of a tribe. The important distinction,

in other words, was not between coloniser and colonised, but between

native and non-native: the race/tribe distinction cut across the single

category of the colonised. Races were said to comprise all those

officially categorised as non-indigenous to Africa, whether they were

indisputably foreign (Europeans, Asians) or whether their foreignness

was the result of an official designation (Arabs, Coloureds, Tutsi).

Tribes, by contrast, were all those defined as indigenous in origin.

When the state officially distinguished non-indigenous races from

indigenous tribes, it paid heed to one single characteristic, origin,

and totally disregarded another, residence.

The race/tribe distinction had a direct legal significance. How a person

was defined determined the kind of law under which that person would

live. All races were governed under a single law, civil law, while

tribes were governed under customary law. There were as many sets of

customary laws as there were said to be tribes. It was thought that

natives must be acknowledged first and foremost as belonging to separate

tribes, with each governed by laws reflecting its own tradition. Yet

most would have agreed that the cultural difference between races – such

as whites and Asians – was greater than that between different tribes.

Different races spoke different, mutually unintelligible languages.

Often, they practised different religions. They also came from different

parts of the world, each with its own historical archive. No matter how

different they appeared, tribes were neighbours and usually spoke

languages that were mutually intelligible; their histories were at times

shared, at other times overlapping.

Nevertheless, for the races, however different they might be, it was one

body of law, modified from European law to suit the colonies, and

enforced by a single administrative authority. In the case of tribes

cultural difference was emphasised, exaggerated and enshrined in a

multitude of different legal systems, each enforced by a separate

administrative and political authority. In a nutshell, different races

were meant to have a common future, at this or that level on the scale

of civilisation; different tribes were not.

The two legal systems were entirely different in orientation. The

difference is illuminated by the contrast between English common law and

colonial customary law. English common law was presumed to evolve as

circumstances changed over time; it was susceptible of different

interests and interpretations. Customary law in the colonies, by

contrast, was presumed to be unchangeable, inasmuch as the circumstances

of the natives, rooted in the traditions assigned to them under the new

dispensation, were thought to be timeless. Any change in customary law

was regarded with suspicion and considered prima facie evidence of

corruption. The invention of native traditions was a precondition of

indirect rule, colonial powers being concerned to establish the

credentials of their native allies as ‘traditional’ and ‘authentic’. In

any given district the priorities were to define, locate and then anoint

a single traditional authority. Unlike Europe, precolonial Africa did

not have a history of the absolutist state: authorities were always in

the plural, legislating conventions in various domains of social life –

clan committees, women’s groups, age cohorts, craft guilds and so on.

Once a single chief – always a male and an elder – was exalted as the

sole traditional authority, it was a short step to define tradition,

too, as unitary, non-contradictory and binding. Having identified and

appointed local allies in the project of ‘indirect rule’ and determined

their role as ‘customary’, the colonial state became both the custodian

and the enforcer of tradition. In this sense colonialism enacted one of

the first ‘fundamentalisms’ of the modern period, advancing the

proposition that every colonised group had an original and pure

tradition, whether religious or ethnic, and should return to that

condition as a matter of course or be obliged to do so by law.

The two aspects of colonial law reproduced a double division among the

colonised by institutionalising discrimination in colonial society:

racial in civil law and tribal in customary law. In attaching the

language of rights to civilisation, civil law created a hierarchy of

entitlements for different races thought to occupy higher or lower

rankings on the ladder of progress. It discriminated in favour of the

colonising master-race (Europeans) and against the colonised subject

races (Asians, Arabs, Coloureds and so on). Customary law, in turn,

distinguished between two kinds of tribe and tribesperson, native and

non-native. It grounded rights – and thus discrimination – in a

discourse of origin (nativism). Unlike race, which was taken to mark a

civilisational hierarchy, tribe was a marker of cultural diversity.

Natives were said to be tribal by nature; the practice of governing them

was called native administration. At the heart of native administration

was a distinction between ‘native’ and ‘non-native’ tribes. Non-native

tribespeople were identified as such no matter how many generations had

lived in a given area, since no amount of time could erase the

difference of origin. Every colony was divided into so many tribal

homelands, each homeland identified with a tribe administratively tagged

as ‘native’. Immigrants with different tribal designations wanting

access to land could only do so as ‘strangers’ who had to pay a

specified tribute to chiefs in the native authority. Colonial customary

law acknowledged only one form of stable land tenure: the customary

right of use – as opposed to ownership – in the tribal homeland.

The native tribal identity conferred three distinct privileges

unavailable to the non-native. The first was right of access to land.

The second was the right to participate in the administration of the

native authority. Chiefs in the native authority could only be appointed

from among those identified as native to the tribal homeland. (It was

only at the lowest level of administration – the lowest tier of the

native authority – that one could find village headmen from resident

non-native tribes.) The third pertained to the settlement of disputes,

which every native authority approached on the basis of ‘customary laws’

that favoured natives over non-natives.

This regime of inequality between supposedly original residents and

subsequent immigrants led to mono-tribal administrations ruling over

multi-tribal societies. With all key rights defined as group rights and

reserved for members of the native tribe, it was only a matter of time

before an explosive confrontation developed between two kinds of

resident in every native authority: those defined as native and those

not. A mono-tribal administration overseeing a threefold tribal monopoly

– in land distribution, governance and disputes – institutionalised

tribal discrimination.

Tribal identity tended to coincide with what anthropologists call ethnic

identity – by which they usually mean language-based, cultural identity

– but this was not always the case. In some instances, the same ethnic

group was divided into several administrative tribes. In others, tribes

were designated arbitrarily – or ‘invented’, as Eric Hobsbawm and

Terence Ranger meant the term in The Invention of Tradition (1983). The

common aspect of all these cases is that tribe was everywhere an

administrative unit during the colonial period, and tribal identity an

officially designated administrative identity. The system of native

administration and indirect rule transformed cultural identity into

political identity, and ethnicity into tribe.

When the British defeated the Mahdiyya in Sudan in 1899, the Sultanate

of Dar Fur became a de facto British protectorate, more or less in the

fashion of many of the princely states in India. When they went on to

establish direct control in 1916, they made the province a centrepiece

of their strategy in Sudan. The thrust of British policy in Darfur can

be summed up in one word: tribalisation, the bedrock of native

administration and indirect rule. It was intended as the antidote to

Mahdism.

The province was parcelled into a series of homelands, or dars, each

identified with a tribe administratively tagged as native. The dar was

considered to be the homeland of its native tribe. No matter for how

many generations non-natives had been in one or another part of Darfur,

they qualified as immigrants and could only access land as ‘strangers’,

which in turn required them to pay a tribute to the native authority.

Now that all African land tenure was identified as tribal, all other

forms of tenure, including the individual land-holding introduced during

the sultanate – the ‘hakura of privilege’ – were rendered obsolete. The

hakura system that exists today in Darfur is not a continuation of the

land system from the days of the sultanate: it dates from the

introduction of tribalisation by the British. Though the word ‘dar’, or

‘home’, still evoked customary usage, its meaning was subverted.

Previously, it had signified any of several concentric locations,

starting with one’s immediate dwelling and extending outwards. As a

colonial administrative unit, however, dar became the territory – tribal

homeland – where one’s group was considered to be native. Inasmuch as it

defined a person’s rights and status, native identity gave rise in

practice to native agency.

As in Darfur, so in every African context that I have encountered, from

Eastern Africa to Nigeria, and from Sudan to South Africa, with one

exception: Rwanda. In Sudan, Britain combined a racialised

historiography with tribalised administration, land tenure and

settlement of disputes, whereas in Rwanda everything – the

historiography, the land tenure system, the local administration and the

process of resolving disputes – was racialised: every institution

privileged Tutsi over Hutu.

One distinctive feature of the colonial experiment in Darfur was that

the native authority system tended to widen inequalities between peasant

and pastoralist tribes, creating a three-tier society of peasants,

semi-nomads and nomads. The consequences became clear in 2003, when the

simmering conflict in Darfur turned into a long and terrible war.

Colonial decisions in Darfur were driven predominantly by the

realisation that sedentary peoples were more easily controlled than

pastoralists. This is the main reason peasant tribes were assigned to

tribal homelands that coincided more or less with their areas of

settlement at the time of colonisation, while in the south the

diminished dars of the semi-nomadic cattle tribes (the baqqara)

coincided more or less with their areas of settlement but did not always

include all their grazing areas. In the north the fully nomadic camel

tribes (the abbala), who had no settled villages and moved around all

year, received no dars. Not only would the need to graze their livestock

bring nomads under the administrative authority of semi-sedentary or

sedentary tribes, the encounter was sure to generate pressure to settle

down over the longer term.

Did tribes exist before colonialism? If by ‘tribe’ we understand an

ethnic group with a common language, the answer is yes. But tribe as an

administrative entity, which discriminates in favour of ‘natives’

against ‘non-natives’, most certainly did not exist before colonialism.

One might equally well ask: did race exist before racism? As regards

differences in pigmentation, or in phenotype, the answer is yes. But as

a fulcrum for group discrimination based on ‘racial’ difference, it did

not. The consensus among contemporary scholars is that while race does

not exist, racism – based on the perception or conviction that race is

real – does. Like race, tribe became a single, exclusive identity only

with colonialism. Above all, tribe was a politically driven, totalising

identity. As such, it looks very much like a subset of race.

Maine was a keen admirer of the Roman Empire, which endured for six

hundred years; Britain’s empire was shorter-lived. The British and other

European empires were organised quite differently from the Roman Empire.

Not only was there no physical contiguity between modern European

empires and their colonies, but most natives were encouraged to stay

where they were. Rome expanded by contiguous conquest and the tendency

was for subjects in the ever-extending colonies to lose their identity

as ‘peoples’ as elites became Roman citizens of one form or another.

When provincial elites emulated Roman culture and demanded corresponding

political rights, it was rare for Rome to rebuff them. In modern Western

empires, by contrast, colonial subjects were politically conscious,

active and disaffected.

In Roman Imperial Themes (1990), Peter Brunt reminds us that ‘in the

very century when Roman rule was to vanish in Gaul, a Gallic poet

celebrated Rome as the city which had unified the world by giving the

conquered a share in rights.’ Brunt adds: ‘What a contrast with the

jubilation that marks the independence days of British colonies!’ In the

West at least, ‘Romans left behind them not memories of discontent but a

continuing aspiration for European unity, and as Christianity took on a

Roman colouring, for Christian unity.’

If there is a parallel with the capacity of imperial Rome to absorb as

it expanded – in the process turning the metropolis itself into a

multicultural centre – it is provided by the Ottoman Empire, not the

modern empires of Britain or France. The policy of direct rule in

pre-1857 India, informed by the utilitarian vision of an anglicised,

assimilated Indian elite, is the closest Britain came to Rome. In the

hundred years that followed the Mutiny, the British Empire moved away

from assimilationism to a mass-based culturalist policy. The point was

no longer to civilise the elites, but to shape the very identity of

millions of colonial subjects. The enterprise known as indirect rule was

vastly more ambitious than anything the Romans had imagined.

[*] Reviewed by C.A. Bayly in the LRB of 14 July 2011. ________________________________________________ Send list submissions to: Marxism@greenhouse.economics.utah.edu Set your options at: http://greenhouse.economics.utah.edu/mailman/options/marxism/archive%40mail-archive.com