REVISITING TRADITION AND MODERNIZATION:
A CHALLENGE FOR LAW AMONG THE DINKA OF THE SUDAN
PREFACE TO THE THIRD EDITION
I. Background on the Study
Tradition and Modernization, my doctoral dissertation, submitted
to Yale University Law School in 1967 for the degree award
in 1968, was revised and published by Yale University Press
in 1971. In 1972, it won the Herskovits Award, presented each
year by the African Studies Association to the author of an
outstanding work on Africa published the year before.
The Award Committee described it as “scholarly, well
written, original and theoretically stimulating.” The
book was positively reviewed in scholarly journals. In the
Journal of Developing Areas, Norman J. Singer wrote in a review:
“In recent years there has been an increased interest
in the common problems of law, anthropology, and the development
process. Francis Deng has given us a comprehensive work which
effectively analyses these problems by means of a case study…An
objective, well-written, intellectual analysis on the Dinka.”
C.W. Van Santen wrote for the Bibliotheca Orientalis: “The
complexity of values and institutions in a ‘primitive’
society could not better be explained than is done in this
book by a Dinka himself. After a thorough education in legal
and sociological thinking, the writer describes in clear scientific
terminology the society to which emotionally he always belongs.
The result is an inside view with Western-educated eyes, followed
by an evaluation and recommendations…which deserve the
widest attention.”
“Written in lucid and felicitous style, this work glows
with humility, objectivity, and insight,” James S. Read
wrote in International Comparative Law Quarterly. “This
book is highly relevant to the future of the Sudan, but it
has much which is relevant and valuable for most African states,
faced as they are with the problem of reconciling tradition
with modernity.”
James J. Fisherman, in his review for the Journal of Modern
African Studies describes the book as “… a standard
work on the Dinka.”
Despite the positive response the book received abroad, in
the Sudan itself, it hardly got the attention of the policy
and professional circles for which it was intended. The second
edition of the book, with a postscript by me, was published
in paperback by Yale Press in 1987. Copies were shipped to
the Sudan for free distribution to university libraries. And
yet, the book remained largely in oblivion.
The Strategic Vision of the Study
In a way, this disregard should not be surprising because
the book was concerned with the major issues that were tearing
the country apart, in particular the crisis of national identity
and the war of visions that is rooted in the history of identity
formation and the grossly inequitable distribution of power,
wealth, services and development opportunities resulting from
the identity crisis.. The stratification and discrimination
on the basis of race, ethnicity, culture, and religion associated
with the process and the outcome affected the non-Muslim populations
of the country, in particular the people of the South. A degree
of inequality is, of course, unavoidable in all societies.
However, when stratification and discrimination become so
extreme as to be intolerable, conflict escalates unavoidably
into violence and destructiveness.
Tracing the relationships within the family on the bases
of gender and age, between tribal factions and neighbouring
ethnic groups, and among sub-national groups categorised in
terms of North and South, the book tried to correlate the
propensity to violate the stipulated norms of conduct to the
level of deprivation and degradation with respect to the shaping
and sharing of power, wealth and other relevant value processes.
Promoting justice and equitable relationships becomes, therefore,
the essential remedy.
With tradition and modernization as the overarching dichotomy
and organizing normative framework, the book analysed the
prevailing conditions of conflict in the country from the
local to the national levels, attributing the manifestation
and the intensity of conflictual relationships to stratifications
and discrimination based on a wide range of factors. Among
these factors were race, ethnicity, culture, religion, class,
gender, and age. While the tension between the forces of modernity
and tradition were fundamental to the policy objectives of
the study, addressing the complex web of conflictual relationships
based on these factors was considered essential to the overriding
goal of promoting comprehensive peace, security, unity, harmony,
and stability for the country and the society at all levels.
Law is envisaged as both a mirror and manager of the social
processes. It regulates relationships with the aim of preventing,
managing, and resolving conflicts. And yet, law is not an
abstract concept, neutrally poised above these social processes,
relationships and conflicts, but is an integral part and parcel
of the whole system. Social processes at all levels envisage
people (individuals and groups) seeking values (material and
immaterial), through institutions, using resources and operational
strategies, with certain outcomes and effects on the system
and the public order.
The degree to which those who make policies or laws and those
who administer justice are regarded as legitimate representatives
of the social order will undoubtedly depend on the degree
to which they are identified with the aspirations and expectations
of the particular category of people involved. Bridging between
the rulers and the status and aspirations of various groups
can, of course, never be absolute, but the discrepancy can,
to a significant degree, be mitigated to ameliorate the discrimination
based on race, ethnicity, culture, religion, class, gender
or age.
Correlative to this strategic vision, Tradition and Modernization
was also concerned with the conventional approach to development
that did not give due regard to the values, institutions,
and operational patterns of traditional society and the accumulated
wealth of knowledge and wisdom embodied in tradition. Every
society operates on the basis of fundamental norms, assumptions
and behaviour patterns that give coherence to life and provide
guidance in social relationships.
These norms and patterns evolve over a long period of time
and become established as essential ingredients of the culture
or the way of life of a given people. And yet, they are never
static, but dynamic, continuously adapting to changing conditions.
However, what gives society a sense of cohesion and stability
is that change itself is an extension of an established order.
Even prophets emerge not to destroy, but to reform their societies.
To envisage a transformation that disregards the pre-existing
order is to be both destructive and unrealistic. In my interviews
with Dinka elders about their worldview, including past, present
and future perspectives, I likened human beings to trees;
a tree with deep roots will withstand even a hurricane, but
a tree with shallow roots can be knocked down by a light wind.
Traditions are the roots of society.
Even the most forward-looking and future-driven nation like
the United States of America invokes not only the memory,
but the strategic vision of the Founding Fathers, thereby
building their future on their past—their tradition.
For those who have left their society and country, I have
also articulated the vision of the invisible bridge, which
implies a conceptual linkage with one’s roots that enables
one to move to and fro between cultures; without that bridge,
one becomes disconnected severed, and alienated. Tradition
and Modernization is therefore a framework that is pertinent
to both those who are inside and those outside the country.
Post-Colonial Ambivalence Toward Tradition
Post-Colonial Sudanese leaders, who came primarily from the
detribalised sector, have been somewhat ambivalent toward
the traditional cultures, values and institutions. On the
one hand, the sectarian leaders, who have patronized the major
political parties, derive their support largely from traditional
societies. On the other hand, tradition is viewed as a relic
of the past.
Although over ninety percent of the Sudanese were still governed
by customary law when I undertook the research reflected in
this book, customary law was denigrated as being primitive
and outmoded. The negative attitude toward tradition by the
national authorities was particularly pronounced with respect
to the non-Arab, non-Islamic South.
As a result, focussing attention on Southern cultures, including
studying them, was viewed as subversive, with the exception
of the works of foreign anthropologists, who were seen by
Sudanese as peculiar to the West and irrelevant to the realities
of contemporary Sudan.
Inside the country, focusing on local cultures was seen as
accentuating differences and therefore adverse to national
unity. Until recently, national unity was understood by the
North as synonymous with the assimilation of the South and
the promotion of uniformity along the lines of the Arab-Islamic
mold.
The prejudice against customary law meant that the subject
was not taught at the Khartoum University Faculty of Law.
Although I was able to initiate field work on customary law
among the Ngok Dinka, with the guidance of my expatriate British
and American lecturers, my Southern Sudanese colleagues who
tried to do the same in their communities met with suspicion,
and their efforts were frustrated and blocked.
Tribal leaders felt threatened by the study of customary
law, while Government officials viewed it as politically motivated
and part of the Southern resistance to the Arab-Islamic policies
of the Government. Even my own research among the Ngok Dinka
was rumoured to be laying the foundation for my eventual appointment
as a judge with appellate authority over the tribal courts.
The Paramount Chief, my Father, was the appellate authority
within the tribe, and although appeals against his decisions
were heard by the judges from the central government, they
were rarely reversed. This was partly in support of his authority
and partly because the central government judges knew nothing
about customary laws and took the Chief as the expert and
virtually the final authority.
It was rumoured that by studying customary law and becoming
an appellate authority, I would be different and could be
a threat to my father’s authority. Some personalities
who were known to be in opposition against my father and presumably
intent on fanning tensions within the family, even went as
far as congratulating me, and even claimed to have seen that
potential in me from childhood.
Although my father did not explicitly express concern about
the situation, the rumours did not escape his curiosity. One
day, he asked me whether the customary laws of all the tribes
in the Sudan were being recorded or whether my research among
the Ngok Dinka was an exception.
I got the gist of his question and told him, with his smiling
acquiescence, that instead of sitting in court, I had decided
to be more discreet and conduct my investigation with the
Chiefs and elders at home, in view of the misunderstanding
that I was detecting about my research.
Over the years, the problems which Tradition and Modernization
aimed at addressing, the gross inequities that provoked the
multi-layered conflicts and the disregard of tradition in
development and nation-building, have continued to be aggravated
by the civil war between the North and the South that has
raged intermittently for nearly five decades, and which has
not only devastated the country, but has shattered Southern
societies.
Many communities have disintegrated and some have virtually
disappeared. As a result, the challenges for the future have
become even more monumental. It is fair to say, however, that
the central message of Tradition and Modernization, which
is to promote justice, equitable unity, harmony and an integrative
process of change that utilizes traditional values and institutions
as building blocks for development and nationbuilding, is
even more pertinent in the Sudan today than it was when the
book was written and first published.
II. Reconstructing the Nation and Society in Post-War
Sudan
Sudan is intensely involved in what appears to be an irreversible
process toward an end to the decades-old conflict between
successive North-dominated Governments and the Southern-based
liberation movements, the latest and most powerful of which
has been the Sudan People’s Liberation Movement and
Sudan People’s Liberation Army, SPLM/SPLA.
But what precisely will an end to the conflict mean? Will
it mean merely ending the hostilities or a redefinition of
the challenges facing the country in the post-war context,
especially in terms of both addressing the root causes and
remedying the devastating consequences of the conflict?
Addressing the root causes will require resolving the crisis
of national identity that has been at the core of the conflict,
creating conditions of equality for unity in diversity and
remedying the devastations of the war, which will require
reconstructing the social order that has been shattered and
generating an empowering approach to development as a process
of self-enhancement from within.
Addressing the Identity Crisis
The identity crisis in the Sudanese conflict is characterized
by two principal discrepancies: The first is the discrepancy
between self-perceptions and discernable factors of identity
that do not conform to those perceptions. In other words,
those who identify themselves as Arabs racially, ethnically,
and culturally, with Islam as a reinforcing factor, are, in
many respects, also Africans in their obvious racial and cultural
characteristics, with Islam and elements of Arab culture,
primarily the Arabic language, as adopted elements that have
tended to predominate.
Southerners too identify themselves as purely African and
deny the shared elements in common with the North resulting
from a long history of interaction and cultural diffusion
along the Nile Valley. And then, there are the non-Arab groups:
the Fur in the West, the Beja in the East, the Nuba and the
Funj in the areas along the North-South borders, and even
the Nubians in the extreme North, which have previously been
subsumed under the rubric of Islam and Arabism, but which
are now becoming more acutely conscious of their non-Arab
identities.
The second aspect of the discrepancy, which is linked to
the first, is the way the whole country has been identified
with Arabism and Islam, thereby marginalizing the non-Arab
groups throughout the country, who constitute the overwhelming
majority. While social scientists insist that it is what people
believe themselves to be, rather than what they objectively
are, that counts, where distorted self-perceptions affect
the status of other citizens and the destiny of the nation,
self-identification cannot be left as a purely personal matter;
it must be scrutinized and challenged as a matter of public
policy.
On the other hand, these self-perceptions are deeply held
and cannot be wished away instantly. A more balanced and constructive
way of resolving these discrepancies is to acknowledge that
identity in the Sudan is both rigidly held and dynamically
fluid at the same time to meet the exigencies of a given situation;
that for the short and mid-term purposes, the diversities
of identities resulting from self-perceptions need to be recognized
and respected through a decentralized system of government
(autonomy, federation or confederation, without necessarily
prejudicing the arrangement with these loaded labels), but
through freedom of movement, residence and employment, combined
with public education, can be re-shaped over time to explore
and expose the commonalities of national identity as a basis
for fostering a more sustainable sense of unity and nationhood.
Equality as a Condition for Unity in Diversity
A major component of the Sudanese crisis of identity behind
the multifaceted conflicts that have afflicted the country
since 1955 has been the way groups have felt themselves dominated,
marginalised and even excluded in the national processes of
shaping and sharing power, national wealth, public services
and development opportunities. In the past, this was seen
largely in terms of the North and the South.
The assumptions behind the relegation of Southerners to the
lowest status in the hierarchy of racial, ethnic, cultural
and religious values and institutions was that the indigenous
identities that prevailed there were not worthy of respect.
The South was assumed to be a cultural and spiritual void
to be filled competitively by missionaries from the Christian
West or the Islamic Middle East.
In fact, volumes of anthropological literature argued to
the contrary. Charles and Brenda Seligman, the pioneering
anthropologists in the country observed, “The Dinka
and their kindred the Nuer are intensely religious, in our
experience by far the most religious peoples in the Sudan.”
A long line of anthropologists and scholars of religion have
since confirmed this assertion.
The current negotiations between the Government of the Sudan,
which are offering the country the best ever prospects for
peace, aim at addressing this national identity crisis in
terms of the Arab-Islamic North and the African (now increasingly
also Christian) South. But the need to recognize and respect
the diversities of the country go beyond the North and the
South and challenge both sides to live up to the ideals of
equality within unity in diversity.
The essence of identity politics is that every group, however
small, would want to be recognized, respected and allowed
to autonomously and freely govern itself. Domination by a
majority group is not justified by any normative standards.
But beyond that, no group in the Sudan, indeed in most African
countries, can claim to be the majority.
All groups are minorities within the inclusive framework
of unity in diversity. Ideally, self-determination should
apply to all groups that view themselves as having a distinct
identity, cultural values, institutions, and established customary
practices. However, if self-determination were to be seen
as authorising full independence, that would be a recipe for
chaos and disintegration. Within reasonable boundaries, self-determination
will have to mean self-administration based on the integrity
of the self-governing groups.
This normative framework is particularly pertinent to what
anthropologists call the acephalous societies, which are characterised
by a segmentary lineage system in which the component groups
enjoy autonomy to the level of the tribes, sub-tribes, sections,
clan-lineages, villages, the family, and ultimately the individual.
Southern societies are, by and large, acephalous.
Even kingdoms were traditionally decentralized along territorial
and kinship lines down to the clan, the lineage, the family
and the individual. This is a self-promoting system that is
guided by accepted normative standards of behaviour. Early
administrators and anthropologists in Nilotic areas were impressed
by the extent to which these societies maintained a high degree
of order without the modern organs of government, including
courts, police and prisons.
For instance, Major Tithrington, whose encounter with the
Dinka went back to the early days of colonial rule, wrote
of their “high moral sense.” He observed, “Deliberate
murder – as distinct from killing in a fair fight –
is extremely rare. Pure theft – as opposed to the lifting
of cattle by force or stealth after a dispute about their
rightful ownership – is unknown; a man’s word
is his bond, and on the rare occasions when a man is asked
to swear, his oath is accepted as a matter of course.”
The principles of personal and collective honour, dignity,
and piety were held in high esteem. The community was the
watchdog of those ideals.
While it is unrealistic to believe that these ideals that
have now been so eroded by decades of mistreatment, humiliation
and destruction by outside forces can be restored, the normative
framework of unity in diversity in the South and the North,
promises a degree of accountability that the community can
bring to bear on its members
This is the essence of the proposed House of Nationalities,
which has been the subject of a series of discussion groups
among Southerners over the last several years. The concept
was developed during two workshops, an initial one held in
2001 and an expanded one in January 2003, when more than seventy
Southern Sudanese representing various ethnic communities,
civil society organisations and members of the civilian authority
are reported to have met for three days in Nairobi.
They agreed upon the principle of establishing a House of
Nationalities, and of presenting the project to the Southern
Sudanese people, at home and in the Diaspora. The proposed
“House of Nationalities is built on the premise that
languages and cultures are very important to all Southern
Sudanese. Culture is a precious wealth needing respect and
protection. Languages and cultures are the bricks of nationhood:
forming the foundation of long-lasting unity, peace and development.
This is the foundation on which the House of Nationalities
stands.” Using languages and cultures as building blocks,
the House of Nationalities “aims at protecting the identity
of all ethnic communities (nationalities) living in the South
Sudan. It ensures respect, dignity and tolerance for all South
Sudanese nationalities.
