von Trotha

During the recent changes in African political orders known as democratization African chieftaincy has apparently functioned in ways which are familiar to the historian. Some chiefs, though not many, took active parts in the movement, some aligned themselves with the power-holders of postcolonial despotism, and many stood aside, waiting to see what the future would bring (van Rouveroy van Nieuwaal 1993, 1992a, 1991). Thus chiefs displayed a diversity in the handling of their power which not only showed the diversity of individual choice in the face of political change but also recalled the chiefs' confrontation with the coming of European colonial rule a hundred years earlier (see van Rouveroy van Nieuwaal 1992b, 1990, 1988, 1987a, 1987b, 1981; von Trotha 1994a).^{^[1]}

In the earlier period some chiefs took the opportunity with the help of the invaders to remove their rivals. Others took the 'wrong' side in the eyes of the violent conqueror, and were killed, deported, stripped of their position and power or otherwise maltreated. Others with the help of the guns of the invaders expanded their influence and territory. Apart from the instances where forms of precolonial chieftaincy were realigned with colonial rule there were others where individuals acquired the responsibilities of chiefs in societies which had previously prevented the institutionalization of chieftaincy and retained more egalitarian political structures. In the face of ruthless statebuilders the members of these societies ended up submitting to the more or less weak rule of chiefs who were held responsible for the conduct of their fellow villagers by the colonial masters.

Diversity thus marks the world of African chieftaincy. This diversity is in part a result of differences in the relationships between chiefdoms and the institutions of central government, and in part the outcome of precolonial political structures. These structures covered a whole range of political orders. They encompassed chiefdoms which were at the threshold of central state government as well as societies which were politically extremely egalitarian and polycephalous, or acephalous in a narrow sense in which people conducted their public and political affairs without any kind of chieftainship.

With European colonialism this diversity was transformed and subsumed into a unifying administrative structure set up by the colonial rulers as part of a process of state building. The chieftaincy which emerged from this process I call 'administrative chieftaincy', borrowing a concept developed by Kurt Beck (1989) on the basis of his research in northern Sudan. It transformed the face of African chieftaincy radically and is still the basis of contemporary African chieftainship.

In the following remarks I shall outline some central features of administrative chieftaincy and I ask some questions concerning the future prospects of postcolonial chieftainship.

Administrative chieftaincy is the outcome of the unifying processes of state building. In Africa these were set in motion and shaped primarily by the colonial conquerors. The unifying process was organized on the basis of institutional innovations following three principles: those of devolution, hierarchy and the [page 81] administrative district (von Trotha 1994a: 219‑334).

'Devolution' means that the central state government overrides the traditional rules of investiture and reserves to itself the right of appointment, installation and dismissal of chiefs. During the colonial period these state prerogatives were mainly in the hands of district commissioners, the "veritable rulers of the empire" (Delavignette 1939). Under postcolonial rule the state prerogatives have become even more centralized, since the central neo‑patrimonial rulers set up elaborate mechanisms to control tightly the appointment, installation, dismissal and activities of chiefs (van Rouveroy van Nieuwaal 1993, 1992a, 1991, 1988, 1987a, 1987b; also Ray's article in this volume). This has also strengthened the political aspect of central control, already present in the colonial period, since the district commissioner watched closely over the loyalty of major chiefs towards the colonial government. Thus the formal or at least factual one‑party rule of postcolonial African states led to a close integration of the neo‑traditional chiefdom into the monopolistic party structure.

The principle of hierarchy was followed when colonial governments invented or strengthened hierarchical relationships between different chiefs, and also when they integrated the chief into their small administrative apparatus by placing him between the local colonial administrators and the population. Within the postcolonial administrative structure the hierarchical order became even more pronounced, at least formally. On the other hand, the neo‑patrimonial, clientelist political structure with its rejection of formal rationality in the Weberian sense lessened the hierarchical structure of the colonial system. Continually up to the present time postcolonial regimes have tried to reduce the formal administrative, and especially the legal powers of chiefs. Their administrative responsibilities are purely local, and are under the control and command of the local state administration. This is particularly represented by the postcolonial head of the district administration, known in the former French colonies as 'Monsieur le préfet'. Formally their judicial functions have sometimes been totally deprived of effect. But on the other hand many postcolonial regimes have raised the position of chiefs by giving them places in the political system as members of assemblies on different levels reaching from local councils to the national parliament, and have revalorized the positions of particular chiefs who have managed to place themselves at important positions within the patrimonial structure and the clientelist networks.

Administrative districts have become important because the colonial regimes introduced the territorial principle into the administrative structure. In doing this they changed the principles of authority and leadership. These were formerly based on the social, cultural, political and, not least, personal relationships between the chief and 'his subjects'. There was a most effective control [page 82] mechanism to prevent the misuse of power ‑ migration. Since colonial regimes watched carefully not to cut across what they thought to be the 'tribal' borders, the new principle did not much affect the position of chiefs except where international borders cut through 'tribal' space, producing not only the well known problems of so‑called 'artificial' borders, but also reorganizing the spatial orders of chiefdoms. The territorial principle affected especially the rule of chiefs under postcolonial conditions of extreme urbanisation, because the growing social, cultural, ethnic and economic heterogeneity of urban settings stressed the administrative and thus the territorial aspect of chieftainship.

The colonial and postcolonial principles of devolution, hierarchy and the administrative district changed the bases of power and authority of the African chiefdom. African chieftaincy became partly or totally dependent on the central administrative apparatus. But the diversity of precolonial African chieftaincy could be suppressed neither by colonial nor by postcolonial regimes. One of the main reasons was that administrative chieftaincy was and still is at the centre of what I call 'intermediary domination' (intermediäre Herrschaft).

'Intermediary Orders' as a Constitutive Part of the Structure of the Colonial and Postcolonial State

Colonial and postcolonial state power is based on three different forms of administration: despotic, bureaucratic and intermediary administrative action (von Trotha 1994a: 335‑344). Here I deal only with intermediary action.

In the colonial days the center of intermediary action was the chief. It was his function to act on the commands which he received from the district commissioner. It was his task to collect taxes or to recruit men for forced labor. How the chief accomplished these tasks was his own responsibility. The colonial administration did not care. It was the output, and not the ways by which this output was achieved, that interested the colonial administration.

Intermediary administrative action of the kind found in colonial and postcolonial states (and many other 'Early States'^{^[2]}) expresses a strong antagonism between the rulers and the ruled, the capital city and the 'hinterland', the worlds of the urban center and the peasant. I therefore call intermediary institutions, which link the colonial or postcolonial state to its local orders, 'antagonistic intermediary orders'. These orders articulate the limits of state power to organize directly, i.e. [page 83] bureaucratically, local social and cultural orders. They are a sign of the fundamental weakness of the colonial and postcolonial state. They are an indication of a lack of 'organizational power' of the state.

The intermediary structure has become more complex in the postcolonial period, particularly through the integration of party or semi‑party organizations. Nevertheless, the continuing antagonism and weak organizational power of the postcolonial state have preserved the chief's position as a key element in the intermediary structure. The intermediary domination of the chief is still of great, though varying, importance.

From colonial days to the present, the chief has been a double gatekeeper on a social and legal as well as on a cultural level. He exercises more or less control over the state's intervention in local affairs; he is a key for locals to enter the realm of public affairs, and especially to enter the neo‑patrimonial, clientelist network focused on the incumbent of the top position of the power structure, on the 'big patron' among the patrons. He represents the national culture on the local level, and the local culture in dealing with members of the central government and on the national stage. He is the fortress of the local legal order, and he judges on the basis of this order, often defying the new legal order set up by the central government. And he uses his position between the government and the local population to foster his own interests as an individual, as a member of a clan or a lineage or of the ruling local group. Some chiefs even established a link between the traditional local order and the world of modern economy and politics by using the changing social, political and economic structures to become part of the new entrepreneurial elite. In many cases this has meant to securing and expanding the economic power which chiefs formerly acquired by the means effective in precolonial days - war, raids, ordinary trade and slave trade, taxing merchants and caravans, and exacting the resources of a subdued peasantry in the stratified African societies of precolonial days.

A special kind of ambivalence thus characterizes intermediary orders. This is very strong in the case of antagonistic intermediary orders and the administrative chieftaincy in particular. From the viewpoint of the central government, a chief who is not the compliant servant of government represents the resistance of local community and its ruling group to the intervention of central government in local affairs. For the members of the local community the chief is either a protective shield against the hegemonic aspirations of central government or a collaborator in state domination.

In the years immediately after the end of colonial rule many chiefs felt this ambivalence when they were brand colonial collaborators, the bastions of 'backward feudalism', or obstacles in the way of 'development'. As in colonial [page 84] days, chiefs continued to walk a tight-rope between two different and antagonistic orders. Many times they fell between the two proverbial stools ‑ a misfortune which is liable to hit the members of antagonistic intermediary orders.

But while many a chief dearly felt the precariousness of his position, the institution of chieftaincy as an important intermediary order survived the rise of central government in the postcolonial state.

In this section I consider especially the relationships between the local order and the central government which shape the modern role of the chief. Chieftaincy has not only gained influence from the need of a weak state for the administrative help of the chief to reach the population, noted in the last section. Chieftaincy has also established itself as a neo‑traditional institution which dominates in many ways the local order and fulfils many functions.

The most important function of chieftaincy is probably the legal one. Many accounts demonstrate the paramount role of chiefs and of the local courts they preside over in ordinary dispute resolution (e.g. Newman 1983: 86‑95; van Rouveroy van Nieuwaal 1991, 1988, 1987a, 1987b, 1981, 1980, 1979, 1976a, 1976b; van Rouveroy van Nieuwaal and van Rouveroy van Nieuwaal‑Baerends 1975, 1976; see also von Trotha 1987 with further references). Looked at from a quantitative point of view, it seems that most African states depend heavily on the legal functions of the chiefs and chiefly courts. Contrary to the law in the books, the chief is the 'veritable judge' and the chiefly legal court is the basic institution of legal dispute resolution in the colonial and postcolonial African state. The chief's legal function is situated at the intersection of the administrative tasks of the chief as part of a unified central administration and the singularity of the local order. In the 'shadow of the state' the chief guarantees the orderly resolution of normative conflicts and at the same time upholds the traditional local legal system.

The legal function is never restricted to dispute resolution and the purely normative side of social order, even though western legal systems, with their extreme internal specialization and the farreaching professionalization of their major actors, try to convey this impression. The legal role of the chief implies that the chief and 'his' court express the main social relations and basic cultural concepts of the local order. The chief and the member of his court are leading figures in the local hierarchy of social relations and are at the center of the local order of meaning. They represent the local traditions and have to handle them according to present needs, interests and values.

When encountering foreign visitors, modern chiefs particularly like to stress the traditional aspect of the chief's role by claiming a function which they refer to in terms such as 'guardian of tradition'. What this really means is not easy to find out, because it is capable of bearing many meanings and summarizes even more complicated social, cultural and political relationships.

One of the historically interesting aspects of this role characterization is its neat correspondence to the role which the colonial invaders accorded the chief when making him the basis of the colonial administrative and legal system. The theory of indirect rule propounded by Lord Lugard made these concepts part of the most influential theory of colonial domination (Lugard 1965; for a critical and interesting comment, see Deschamps 1970). For the colonial rulers ‑ as well as for the chiefs' revolutionary critics of the postcolonial era ‑ the chief was the patriarchal head of a patriarchal 'tribal' order. Consequently in the eyes of the colonial masters the chief guaranteed a solution to a problem which any social order has to solve, that of continuity,. He represented stability. He secured the heritage of the ancestors by transmitting it from one generation to the next. He was the promise that the future would be orderly, because with him the future was nothing more than the continuation of the past and the present.

For the colonial rulers the chief also embodied the principles of power on which they thought patriarchal orders were based. For them patriarchal power was based on authority, as it is for the presentday chief. 'Authority' is a political concept lying at the very heart of western political thought. Authoritative power was in play when the district commissioner and the chief met. The first mistakenly understood himself to be the new white paramount patriarch of patriarchal 'tribal' orders, not infrequently flattered by a show of being treated like a paramount chief. The second was regarded as a typical representative of that unity of elements of which authority consists, according to the time‑honoured Roman tradition, as Hannah Arendt (1977: 91‑141) has so convincingly shown: the elements of tradition, religion and authority.

This concept of authority was and is full of misunderstandings when applied to the colonial district commissioner and the colonial and modern chiefs. On the one hand, the vesting of power in the district commissioner marked a definite break with the religious base of power as well as with tradition. This was so from the perspective of the African 'subject', but from other perspectives also. The power of the district commissioner expressed the inherent conflict between authority and the principles of western bureaucratic state administration. Replacing the promotion of authoritative power, the development of modern bureaucratic state power is a truly revolutionary process. It is a blow to tradition, and it delimits, at the least, the sphere of religion, thus also weakening the foundations of established authoritative institutions. The position of the colonial and modern [page 86] chief, on the other hand, is the result of this discontinuity, which accompanies the institutionalization of administrative chieftaincy. Claiming authority on the ground of his role as a 'guardian of tradition', the chief extracts support from the revolutionary process which affected the institution of chieftaincy with the coming of European rule. He also extracts support from the fact that the power of the colonial and modern chief is based on two inherently conflicting, even antagonistic resources, represented respectively by the state and local tradition.

The claiming to be the 'guardian of tradition' also accords with the idea of a 'tribal' order. This idea was not only dear to the colonial administrators but has haunted western concepts of 'traditional society' since the onslaught of colonialism (Bierschenk 1993; Beck 1989; also Ranger 1983).^{^[3]} It is the utopian idea of homogeneity and community where peoples' lives are not riddled by conflict, social struggles and dispute, because they are bound by the chains of tradition, as Sidney Hartland (1924: 138) at the turn of the century once said. It is also an idea of culture and society as an integrated whole, and thus has provided the foundations for all theories of organic social order, of which structural‑functionalism has become the most prominent in the social sciences (with respect to anthropology, see Kuper 1983: 52‑120).

One of the most significant aspects of the chief's understanding of his role, however, is the belief that it underlines the local space and the local world, thus reflecting the typical structural ambivalence of intermediary domination linking local life with the sphere of the state. That has a cultural, social and, most particularly, a political side.

Culturally the chief's role defends 'local tradition'. 'Tradition' generally presents itself in two ways. On the one hand, there is the 'great tradition',which is not much tied to local space, and is embedded in cultural orders, which have a more imperial gesture. The great religions belong to it as do the great systems of thought. For more than five thousand years the city, princely courts, the theatre, the academy and the university have been exemplary institutions. In modern times one might also include those national traditions which the state always tries to develop through elaborate rituals, especially in the army and the school. On the other hand, there is the 'small tradition'. This is local in the sense that it does not consist of 'discourses', as we would say today, but of stories, not of history, but of historical narratives, told in the presence of other members of the local community. It consists not of laws, but of norms legitimated and disputed in [page 87] ongoing interactions and sanctioned and modified by the chief's court. The modern chief is a champion of the small tradition.

Socially the chief's role varies widely according to his position within the local social order. He might be the head of a more or less powerful ruling group, typically organized on a clan or lineage base, or the primus inter pares among a group of elders of a small village. But in both cases, seen from the perspective of his local obligations and responsibilities, the chief's role confirms the local social order and, particularly, the social interests of the local community, over which he constantly sits in judgment. In the case of strongly stratified societies and heavily clashing social and economic conflicts within the local order, this confirmation may be guided primarily by the social and economic position of the chief as a member of the dominant group, by the interests he follows accordingly, and by the values and ideas he shares with the other members of that group. But still, as with the cultural aspect of the chief's role, the modern chief is primarily a champion of the local social order.

Politically the problems are more complex. On the one hand, what holds for the social side of the chief's role is valid for his political activities. The chief's position is at the center of local political life, of its fights and struggles. This can be observed especially well on the election of a new paramount chief, when the various contenders bring into play all their social, political and economic resources (for an excellent account, see van Rouveroy van Nieuwaal 1991).

On the other hand, since colonial days, but particularly with the establishment of postcolonial neo‑patrimonialism, the chief's position has become more and more integrated into the administrative apparatus and tied to the national neo‑patrimonial structure dominated by the political interests of the head of state or the ruling national party. Thus the local attachment of the chief has to some extent given way to his responsibilities as a member of the central administration, and his loyalty towards the national government. In the 'dual structure' of intermediary domination the politics of the national center have become predominant. In part the chief has become a more or less subaltern civil servant accountable to the local representative of the central government. In part, the chief has become an instrument of political control in the hands of the ruthless and politically powerful 'big patron' and his ruling party. The latter has especially compromised many a chief in the eyes of the local population, particularly in those cases where chiefs openly sided with the ruling despot during the bloody struggles for democratization.

With the political and administrative integration of the chief into central government the traditional and neo‑traditional side of the chief's role becomes more and more 'folklorized' (see the accurate and vivid descriptions of this [page 88] process by van Rouveroy van Nieuwaal 1994, 1987). Chiefs provide a show of traditional legitimacy for the national leaders. The strong men at the top of the state ‑ often young not only with respect to age, but also with regard to social and political standing ‑ like the rhetoric of tradition and praise the chiefs as the 'guardians of our cultural values and identity'. They decorate themselves with the regalia of chiefs. They order the chiefs to welcome important foreign leaders. They use the chiefs as claqueurs and lead singers for political rallies. Quite obvious to onlookers at these occasions, this political instrumentalization of chiefs demonstrates the cleft which separates the spheres of power and domination and of 'tradition', while at the same time it integrates the sphere of tradition as a symbolic, legitimizing resource into the space of power. The powerful members of the central government leave the chiefs to play the role of more or less venerable local dignitaries, who represent the dignity of the past, although power and domination monopolize the agenda of the day and promises for the future. Thus, tradition does not represent the ground on which the future is to be built, but only the heritage of a past, more or less slowly fading away.

Nevertheless, although administrative integration, political instrumentalization, and folkloristic traditionalization mark the development of postcolonial chieftaincy, the strong local power base of chieftaincy limits the degree to which these processes undermine the power of chiefs. Moreover, the extreme diversity of precolonial and colonial chieftainship has significant consequences for the postcolonial development of chieftaincy. The cases of Togo and its neighbour Ghana are illuminating in this respect.

Unlike Togo, Ghana accommodates important centers of very powerful chiefs such as the Asantehene in Kumasi. Though subject to the processes of integration, instrumentalization and traditionalization, the postcolonial history of the powerful chiefdoms in Ghana, and especially that of the Asante state, shows the extraordinary strength which powerful chiefdoms might preserve in the face of a central government claiming unlimited sovereignty. (For this and other observations about chieftaincy in Ghana, see Ray in this volume).

Under the Constitution of the Third Republic of Ghana of 1979, the ability of the state to determine the status of chiefs, for instance, was greatly restricted. The colonial principle of devolution was thus weakened. The previously devolved power was vested in the Houses of Chiefs, bodies at regional and national levels composed of and controlled entirely by chiefs. This power in the hands of the chiefs was reaffirmed and strengthened in the Constitution of the Fourth Republic [page 89] enacted in 1992.^{^[4]} But, what is more important, again particularly in the case of the Kumasi 'chieftaincy', is that the postcolonial chieftaincy, i.e. the ruling lineages and families, have been able to secure most of their social, cultural and, most crucially, economic power bases.

They still dominate the legal process within the borders of their 'tribal' areas. They can still count on the resources of legitimacy grounded on their 'traditional' authority and its religious foundations, thus validating the unity between authority, tradition and religion which Hannah Arendt emphasized. They continue to take full advantage of their social standing as leading members of the ruling lineages, families and aristocratic estate in these socially highly stratified societies. And to this combination of great social, cultural and political capital in the Bourdieuian sense (Bourdieu 1989, 1983), they add economic power through control over huge areas of land. Their control of land enables them to collect rents, exploit peasants and 'workers', share in the exploitation of nationally important natural resources, and participate in the world of modern business in ways no different from those of their rivals in other parts of the world, some of whom they might even call 'friends'. Combining the concepts of Bourdieu and an economic metaphor, we might say that in the cases of the most powerful chieftaincies we encounter a social, cultural, political, and economic market of chieftaincies, in which each player has in his own territory accumulated unrivalled capital in all the major forms of societal assets. This capital gives highly privileged access to the national power structure and power processes. This is further enhanced by the neo‑patrimonial character of the postcolonial state, integrated by networks of clientelist relations. Thus the ruling chieftaincy groups of Asante are neither crumbling under the onslaught of central state government nor fighting for the sovereignty and dignity of chieftaincy against a maliciously modern central state. They are nothing other than a part of the ruling groups of the modern state of Ghana. They play their role as intermediaries between national politics and the central administration, and the local orders which they themselves control within the limits of neo‑patrimonial domination. But at the same time, like all other members of the national elite, they use the structures and processes of the postcolonial state as instruments for their own ends.

The diversity of postcolonial chieftaincy, ranging from poor village chiefs to stately paramount chieftaincies of the kind the Asante chiefdom represents, highlights the provocative questions put by van Rouveroy van Nieuwaal during the [page 90] proceedings of the conference, of which this volume is one of its achievements: "Are chiefs mere puppets? Has chieftaincy in Africa to be considered as the fringe of the African State or is it the African state which has to be conceived as the fringe of African chiefship?" In any analysis and discussion of the future of African chieftaincy it would be unduly hasty and potentially misleading to exclude either possibility for any state.

In the face of the pronounced diversity of African chieftaincy, any thought of restructuring the African polity, not to mention the practical implementation of any such plan, becomes problematic. The road to a more democratic, responsible and responsive political order in Africa has to find a route between, to use the illuminating metaphor of van Rouveroy van Nieuwaal (1991), the Scylla of weak local 'traditional' chieftaincies, their power bases eroded by the neo‑patrimonial postcolonial state and the politics of its national elites, and the Charybdis of powerful centers of chiefly domination, the ruling groups of which are part of these national elites, dominating and fighting for the 'politique du ventre' of the postcolonial state and using the institutions of the modern state and the processes of national politics as instruments for their own gain (see Bayart 1989).

In the wake of the political upheavals of recent years there were again many voices denigrating the chiefs with a rhetoric as old as that which the post‑independence protagonists of 'revolution' and 'modernization' shared with their colonial adversaries when the latter spoke contemptuously about chiefs. However, chieftaincy has demonstrated a remarkable durability during the last one hundred years, defying all attempts to abolish it. It therefore seems to be more realistic to change the political approach to the institution. Instead of treating chieftaincy in a discourse which treats it as incompatible with 'democratization', it is more appropriate to ask how the institution might become part of an institutional development. This development might build on the social, cultural and political strengths of modern chieftainship and give it a direction, making chieftaincy part of the more general efforts to achieve a more just and responsive social, political and cultural order, which may avoid the dangers of political and administrative despotism which haunt the neo‑patrimonial postcolonial state in Africa.

First, I discuss chieftaincy within a theoretical and political framework which still presupposes the political idea of the state, i.e. a central government which has monopolized important functions and decision‑making processes such as foreign [page 91] policy, defense against foreign aggression, and some legal and other functions which are usually classed as 'internal affairs'. But, contrary to the idea of the western state, it does not necessarily presuppose a monopoly of violence below the level of aggregated group conflicts, i.e. within the sphere of everyday dispute regulation. This modification is an important departure from the idea, though not the actual workings, of the colonial state, which followed strictly the western concept of the state and made many efforts to install an all-embracing monopoly of violence.

This assumption is far from obvious. In fact, it seems that the idea of the state is losing ground at a fast rate, particularly in Africa (see von Trotha 1995a, 1995b). We might call this process the 'political tribalization' and 'cultural ethnicization' of social order. In it the institution of chieftaincy could play a leading role, becoming the center of new political orders drawing on the experiences and the political, cultural and social resources of both precolonial and administrative chieftaincy. A process of this kind would definitely change the historical currents of the last hundred years. But its analysis would go beyond the scope of the questions I address here. It would require the development of a cornucopia of new questions and theoretical tools, because it would be a major mistake to analyze the process only in terms of some kind of 'return' to historically known phenomena. (For a provocative essay on these questions which deals with western societies, see Minc 1995.)

Secondly, I assume that it would be a hopeless venture to reform administrative chieftaincy without restructuring the institutions of the state. The history of administrative chieftaincy as an intermediary order tells us that there will be no major change in the development of chieftaincy as long as there is no fundamental reordering of the national political and administrative system. The history of the dual structure of antagonistic intermediary orders sufficiently proves that administrative chieftaincy cannot be more just, more responsible or more responsive than the orders which it mediates. Reform of administrative chieftaincy requires the transformation of postcolonial despotism into a more responsible form of government based on a system of checks and balances, which will guarantee more control of the power of the central government, grounded both in more administrative efficiency and, most important, in a political culture of public responsibility.

On the basis of these two assumptions, I address some problems directly related to the observations and remarks made above by stating eight 'principles' for the future development of African chieftaincy. The problems include the legal function of chieftaincy, the concepts of tradition, authority and representation, and the integration of chieftaincy at the national level in the postcolonial state. My comments are very provisional. Their general idea can be summarized in the [page 92] following proposition: African chieftaincy has to be transformed from an institution of administrative chieftaincy into an institution of local justice, of public debate, and of an emerging civil society based on the traditions of African polities and institutions; only in this way can civil society confront the challenges of the present in order to achieve a more responsive and responsible form of government and to find a way out of the cul-de-sac of postcolonial despotism.

The pillar of contemporary chieftaincy is its legal function. The local legal system is the basis of the remarkable historical durability of the institution of the chief. Neither the colonial invaders nor the postcolonial modernizers have been able to eradicate the pivotal legal function of the chief. It is the legal role of the chief, constantly called upon by ordinary people, by which, more than anything else, the traditions, norms, and values of the local communities are continuously validated and undramatically modified for the needs of the present. But, as I have pointed out, during most of the colonial period and even more in postcolonial days the central government has withheld formal acknowledgement of the importance of the legal role of the chief, and has not infrequently sought to eradicate it. This policy should be reversed.

The chief and his court should be made an official institution of the legal system. Such an institutional arrangement presupposes, of course, that independence from state intervention is guaranteed to the chief in his legal role and to the members of the chief's court. This judicial independence will not only realize a basic principle of any state in which the rule of law applies, but will strengthen the legal traditions of the different societies which make up the modern African state, enabling them to develop their legal systems according to their own traditions, needs, and visions of the future. Local orders have to regain their autonomy with respect to legal affairs.^{^[5]} Legal pluralism has to become a reality which is not constructed behind the back of the state or even against it ‑ proving the state's continuing impotence ‑, but which is acknowledged and fostered. Legal pluralism has to be legitimized. Legal pluralism must replace legal antagonism. Necessarily it would be a legal pluralism 'in the shadow of the state', i.e. under the threat of legitimate state intervention reaffirming the legitimate monopoly of violence of the state, though on a much more restricted level than the 'absolutist' centralism [page 93] which has shaped the history of the western state. This state power would need to be called upon in the case, for instance, of disputes involving violence between collectivities where at least one of the parties refused to submit to the mediation or adjudication of the responsible chiefly court.

The formal acknowledgement of legal pluralism certainly has far‑reaching consequences, many of them yet unknown. One of the most obvious and difficult problems is related to the social, political and economic structure in the case of highly stratified societies, in particular aristocracies, where the legal activity of the chief tends to perpetuate the injustices which regularly accompany heightened inequality. But, in view of the postcolonial condition of legal pluralism in Africa, I would support the principle of local autonomy against the champions of western jurisprudence, whose idea of a single, unified system of law presupposes the kind of societal integration which western polities began to realize in the second part of the 19th century.^{^[6]}

The principle of local autonomy entails leaving the solution of local problems to members of the local order. In the case of less socially stratified societies within the postcolonial state, it also postulates some confidence in the local systems of checks and balances, whereby elders, competing clans and lineages, procedures for elections of successors, religious beliefs, communitarian forms of social relationships, and other mechanisms of control limit chiefly power. Mainly in the case of highly stratified societies and political oligarchies, the principle acknowledges nevertheless the possibility of a legal pluralism of injustices ‑ a possibility which the protagonists of legal pluralism within the legal and anthropological professions never address. But, as long as the members of the local order do not themselves fight against and correct these injustices, the principle suggests that non‑members should be very careful and should hesitate to intervene.

The principle of local autonomy is not only a structural, but also a processual principle. On the one hand, it emphasizes that the members of the local orders should take responsibility for their proper concerns and interests and become agents in the process of societal change. On the other hand, it claims, in accordance with common sense as well as sociological truism, that the conditions themselves, under which people live their lives, produce the conflicts and challenges which mobilize the productive imagination of the human mind and drive people to devise new solutions.

Legal anthropologists have tended to neglect not only the problem of a legal pluralism of injustices but also that of urbanization. The latter is obviously a core issue for the future development of the African state, society, and chieftaincy.

As everywhere in the world, cities all over Africa grow at a fast rate (see Jaglin and Dubresson 1993: 7‑16). Urbanization is a process in which traditional and newly invented social and cultural patterns mingle in fascinating ways, and it constitutes orders of remarkable social and cultural heterogeneity. The city is a place to which people migrate not least to escape the order of the village or the small town and to start new lives as more autonomous citizens. 'Stadtluft macht frei' ('the city air liberates') was an old German proverb which became particularly prominent in the 19th century. What is the significance of this heterogeneity and cultural and social liberty of the city for the role and function of chiefs?

At first glance the city seems to be incongruent with the institution of chieftaincy. It denies the social and cultural homogeneity on which the institution of the chief seems to rest, which the chief expresses, and which is one of the presuppositions implicit in many studies by anthropologists, as also in the colonial mythology of 'tribal' order and chieftaincy. But experience tells us a different story. The 'chef de quartier' in many neighbourhoods of Lomé, Aného, Atakpamé and Sokodé^{^[7]} has a tight weekly schedule to meet his responsibilities as advisor, mediator, adjudicator or even 'judge' in the innumerable quarrels and conflicts which characterize the everyday life of an urban neighbourhood and are brought to his 'court'. This activity reminds us that, while cities as a whole may be extremely heterogeneous, particular neighbourhoods within the city are organized on grounds which, like ethnic affiliation, class, place of origin of their inhabitants and so forth, have homogenizing tendencies. In this respect African cities are no different from cities in other parts of the world. It also reminds us that, as the sociology of law as well as criminology have reaffirmed many times, the bulk of all conflicts ‑ even those which fall into the realm of penal law ‑ occur between people who know each other and share much of their everyday life. Thus, on the local level of neighbourhoods, the apparent incompatibility between city and chieftaincy is qualified by homogenizing tendencies which constitute the social and cultural [page 95] bases on which the legal role and function of the chief rests.

But even more interesting in the African context is an implication of the function of dispute regulation which the chief fulfils in urban settings. This entails the continuation of a legal pattern which since colonial days has been more and more institutionalized, not only in the city but also in the village life of the 'hinterland', 'in the bush': the pattern of a dual legal order.

The chief's legal function has contributed heavily to the success of chieftaincy in the face of hostile circumstances. But, as legal anthropology tells us, this cuts both ways. The dual legal structure which emerged in the struggle between the centralized legal system of the state and chieftaincy meant that the indigenous institutions of dispute regulation lost their 'monopoly'. People could turn to the courts of the state and sometimes even became masters in manipulating the dual legal structure, because from the perspective of litigants the enlargement of the system of 'traditional' dispute institutions through the provision of state courts also implied an increase in the institutional opportunities to settle disputes (see Lowy 1978; Canter 1978; see also Cohn 1959 for an interesting case study from East Uttar Pradesh, India). From this perspective the dualism and even antagonism between the state and the 'traditional' legal system paradoxically included an element of heightened pluralism (see also Hamnett 1975; van Velsen 1969). This pluralism is one of the assets of chiefly dispute regulation in urban settings, because it concurs with the pluralism of the city.

I do not see why it should not be possible to preserve and develop this pluralistic order of dispute institutions in the face of urbanization. On the contrary, it seems to me that this pluralism is particularly apt to accommodate the cultural and normative syncretism which is the genius of the city. It is this pluralism which allows traditions which people bring to the city and urban inventions to flourish at the same time. I do not see why people should have no choice ‑ at least on the level of the lower courts ‑ between different legal systems, one run by the state according to state rules, the other by non‑state, i.e. 'traditional' institutions according to norms which are part of the local traditions of the neighbourhood and of the people who have settled there.

However, one important modification in the existing law seems necessary. The decisions of the chiefs' courts should have the same status, the same degree of liability as the rulings of the state court. This is necessary, firstly, in order to strengthen the inherent pluralism of the dual structure and to transform the existing asymmetrical and therefore antagonistic nature of the dual structure into an open and formal pluralism, and, secondly, to avoid a conflictual manipulation of the dual structure by the litigants playing the courts off against each other. It is only in this case that we can expect a stimulating and innovative competition [page 96] between two different but equal systems of dispute regulation. In this competition it would for the litigating customers to decide which court was more appropriate for dealing with a specific dispute. We can speculate that it will create a division of labor between the different systems of courts and legal reasoning, not based on the principle of legal hierarchy and power, but on the types of issues which are dealt with by the courts. This would be a functional equivalent to the internal differentiation of the western court system. But it would also produce legal competition in which litigiousness would be restrained.

As I emphasized above, tradition is a form of legitimation which is based on a construction of history. Tradition as claimed by the contemporary is not something which the historian normally finds. By invoking tradition people and institutions claim continuity and thus order and orderliness. Tradition underlines the meaning of the past for the identity of people and the constitution of institutions. It is a normative design for the present and for the future expressed in the terms of the past, and often it is just a manipulative tool in the interests of power. Although admittedly legitimation by tradition is not only deeply embedded in the world of peasants, warriors and small communities, but is gaining ground worldwide, it seems obvious that, in the face of fundamental and rapid changes in every sphere of life, legitimation by tradition is not sufficient to guarantee the future of chieftainship. The prospect of chieftaincy very much depends on the fact that the idea of the chief as the 'guardian of tradition' is complemented by the ideas that the chief is an 'agent of the present' and is a 'guarantor and agent of the future'.

The chief is an intermediary between the past and the present, but he is also an agent of the present and an intermediary between the present and the future. He has to legitimize his role by advancing the well‑being and betterment of the community he represents. This fact is as old as chieftaincy itself, because chiefs have always been judged on these grounds by the members of their community. The chief must ground his understanding of tradition on the dynamic character of the latter. Tradition is not the rigid preservation of past conditions. It is instead a continuous dialogue with the past directed towards the challenges of the present. Tradition is doomed when it ceases to satisfy the needs of the present and the future. It withers in those processes of 'folklorization', practised by the powerholders of the postcolonial central government, and 'self‑folklorization', succumbed to by many a chief in the rhetoric of 'tradition' or in his acquiescence in his manipulation for the purpose of staging legitimacy for the powerful.

The issue of tradition is dependent on the issue of authority, if we follow Hannah [page 97] Arendt's masterly and lucid account to which I have referred. There is no authority without tradition and religion, and no tradition without religion and authority. All three of them have been severely affected by the establishment and development of the administrative chieftaincy. But there is the further problem that the neo‑traditional authority and power of contemporary chieftaincy are grounded on ascriptive norms. Politically and socially most important are those norms which formally restrict access to the position of chief to the members of certain clans, lineages or even certain families.

Within the western discourse about achievement and individualism it could be argued that the contemporary urban world and the modern marketplace stand strongly against any form of authority based on ascriptive hierarchies. But, in view of the important cultural, historically specific foundations of this discourse, I doubt that there is a necessary relationship between market economy, contemporary forms of urban life and the destruction of authority. Contemporary Japan is an instructive example of the compatibility of market economy, urban life and authority. Nevertheless, modern chieftaincy must come to terms with the anti‑hierarchical currents of the market economy and urban life by stressing the achievement side of the chief's role. The future of chieftaincy depends on the reconciliation of ascriptive authority and authority by achievement.

Some chiefs have clearly recognized this problem. At a round‑table conference of the Togolese National Commission on Human Rights in the year 1989, according to the conference minutes, a prominent chief expressed it thus: "The ... reason for the chiefs' loss of authority was a lack of familiarity with matters at hand, which certain of their number had demonstrated" (van Rouveroy van Nieuwaal 1991: 139). The non‑ascriptive side of the chief's authority is not a direct consequence of modern conditions. In fact, it arises from the 'traditional' foundations of the role of the chief. For many precolonial African societies, especially of the more egalitarian types, leadership was a non‑ascriptive social phenomenon, based on the achievements of individuals who demonstrated special competencies with respect to abilities which were highly valued. Even in highly stratified societies with ascribed political roles, there were always mechanisms to get rid of incompetent chiefs, mechanisms which were often tightly interwoven with religious beliefs and rituals. What has particularly changed is the kind of competencies which are necessary to fill the chief's role adequately. Today these competencies are conditioned by the requirements of modern economic, administrative and political challenges and tasks.

The problems of tradition and authority converge in the problem of representation, [page 98] the fundamental issue of responsible and responsive government. Chiefs as well as anthropologists usually gloss over the problem of representation. They like to speak of 'the people' which the chiefs are said to represent. But who are 'the people', or rather, 'my people'? As long as we refer to small peasant communities of the kind anthropologists have studied, this glossing over of the problem of representation may not be too problematic on a pragmatic level.^{^[8]} But today the problem of representation is of primary importance for the future of chieftainship, and deserves a much more extensive treatment than I can present here. Instead, I will address only a few aspects of the problem. They include cultural ideas as well as constitutional arrangements. In particular, they concern the idea of 'the people', the way the local order is represented by the chief, and the integration of the chief into the institutions of law‑making on the level of the state.

The idea that the chief represents 'his people' is not based on a political concept of representation in the western sense of representational government, which supposes universal suffrage, free elections, secret ballot, the majority principle and the electoral period. Instead, the concept is grounded on a social and moral idea of representation. Socially it assumes that representation by the chief is a part of communitarian forms of social relationships, of the life of small communities, of the shared knowledge of a common history, norms and values. Morally representation is a claim on the part of the chief, and the idea of 'his people' is a second order construct. 'His people' is derived from the idea of the unity of sacred traditions and common religious beliefs, from the construction of a common history, and, not least, from the unity which domination demands. In this sense, the notion of representing 'his people' does not refer to the people as a concrete company of men and women. It is a claim of moral and political leadership.

As long as the social bases of chiefly representation are generally given, and the moral and political claims are not seriously challenged, the chief can be said to represent 'his people'. But in the face of the rise of administrative chieftaincy, and the great social, economic, cultural and political changes, neither the social bases nor the moral claim can be taken for granted. On the one hand, the chief as an executive institution of the central government is as unrepresentative as any non-representational central government. On the other hand, processes like the expansion of the market economy, growing school education and urbanization deprive the chief of many of the local social and cultural bases on which his [page 99] representation rests. The conflictual grounds of representation express themselves more explicitly, and the moral and political claims of the chief become fragile. The response to this situation has generally been what I would call a 'discourse of losses', which presently dominates the discourse of and about chiefs. But the great opportunity for modern chieftaincy is to make the conflictual reality and the fragility of the moral and political claims for leadership the basis of what I name 'civil chieftaincy'.

Within the framework of the traditional or neo‑traditional role of the chief, 'civil chieftainship' means that the institution of the chief is the central place of public dispute. It is a place where conflicting interests, opinions and ideas of all the members of the local community are expressed and discussed. Here the members of the local order voice their hopes and grievances, their interests and wishes, their conflicts and their consensus. The chief thus is a central place where something is constituted which might be called in western terms 'the local public'. Civil chieftaincy is less a princely court than a public forum, in which are handled the conflicts which make up all social orders, especially those which result from the far reaching changes of the present. In fact, being a place of public debate has always been a major function of the chief's court. But civil chieftaincy means that the role of the chief is to stimulate the public dispute over conflicting issues and challenges which concern the local order, without excluding any member of the local community. Instead of complaining about his loss of authority and asking the central government to provide a solution, the chief should demonstrate authority by becoming the leader of a lively public debate in which traditions are confirmed as well as changed or abolished in order to meet the challenges of the present and the future. In civil chieftaincy the chief is the 'leader and guardian of public debate'.

Civil chieftaincy is also an institution where local interests and standpoints are defended against the central administration and government. This obliges the chief to be the unflinching advocate of general local interests and concerns against the central government. This chiefly advocacy need not replace the intermediary function of the chief between the local community and the central government. But civil chieftaincy modifies the intermediary function, because the most substantial ground for the intermediary role becomes the possibility of legitimate representation of local interests. The chief is the leader and voice of the local public spirit and sense of solidarity. This function, like the chief's legal function entails that it is not proper for central government to judge the chief's leadership or even to drive him from office. It is for the members of the local order to control the chief and to set in motion mechanisms to check his power and to supervise the way he fulfils his responsibilities.

Civil chieftaincy cannot adequately represent the local order without being constitutionally integrated on the level of the central state. There are enough examples which can serve as models for solutions to the problem of integration. One of the historically most widely used forms is the system of two chambers. This kind of constitutional arrangement was also proposed by the eminent Ghanaian professor of constitutional law F.K. Drah during the conference on which the present volume is based. Thus an Upper House, composed of members recruited on the basis of function and status, could include a large group of chiefs representing the chieftaincies of the country.^{^[9]} An alternative solution could follow the model of federal states such as the Federal Republic of Germany, where the second chamber represents the regional states. But this presupposes the introduction of a strong element of federalism into the constitutional order of the state. My German experience suggests that this may be a major solution to the problem of balancing the relationships between regional and national interests and controlling the power of the central government. It seems to be easier to realize this in states which formerly belonged to the British colonial empire than in those which have inherited the tradition of French centralism.^{^[10]}

Whatever the constitutional arrangement, it is important that the local order is directly represented at the level of the national state and, particularly, in its legislative process. In this way, the diversity of chieftaincies, societies, cultures, and legal orders can be expressed on the national level. This will strengthen the pluralistic element of the national legislative and governing bodies, transforming the social, cultural and legal pluralism of the national state into legislative and [page 101] political pluralism. In addition, the great legal competence of chiefs of which even the arrogant colonial conquerors once expressed fascination, referring to "the wisdom and good sense with which chiefs decide the cases brought before them" (Asmis 1942: 86),^{^[11]} becomes part of the law‑making body. This is particularly important to reduce the wide gap which exists at present between the formal laws produced by the legislative institutions on the national level and their application in settings of widely differing legal cultures and systems which exist in all postcolonial states of Black Africa. The integration of the institution of chieftaincy on the national level also bolsters the procedures by which agreements are found and consensual solutions to conflictual issues are achieved, thus recovering resources of legitimacy when these have been almost totally lost by postcolonial despotism (see von Trotha 1995a, 1994b).

There is no freedom, justice or peace without elaborate checks and balances of power. This was the seminal discovery of the political philosophers of the modern constitutional state.^{^[12]} Given the Charybdis of powerful centers of chiefly domination, the ruling groups of which are part of the same national elites which dominate and fight for the 'politique du ventre' of the postcolonial state, a check on the power of chiefs on the national level is urgent. Those who drafted the Ghanaian constitution of 1992 were well aware of this problem and included stringent provisions to curb the power of the chiefs in the national political arena.^{^[13]} In particular, these provisions are determined by the realistic fear of secessionist or even expansionist tendencies resulting from the aspirations to sovereignty demonstrated by powerful chieftaincies (see Ray in this volume). Many a statement made on the part of the African chiefs and other members of [page 102] the Ghanaian community who attended the conference, or sought by the participants in the conference, gave ample evidence of this. This check on the power of chiefs on the national level is even more pressing within the framework of the principle of local autonomy, since this necessarily implies the danger that the more powerful chieftaincies may use the power and legitimacy accorded to them in their own realms to dominate and determine national politics at the expense of other communities and less powerful chieftaincies, and the national public good.

One of the checks on the power of chiefs would be their integration into a second chamber. Others could be sought on the lines of the provisions made by the Ghanaian constitution of 1992.^{^[14]} But what is more important is to recognize that, apart from specific checks on chiefly power within the national arena, the problem of limiting the power of chieftaincies is only part of the more general problem haunting postcolonial Africa, to be found in the morass of political and administrative despotism and the political culture of the 'politique du ventre'. As long as there is no fundamental reordering of the constitutional grounds and, nota bene, of the realities of the political process, no arrangement which focuses solely on the power of the chiefs will curb the abuse of chiefly power within the national political process. Thus, the check on the national power of chiefs can only be found in a process of reconstruction of the national political order, part of which is now called 'democratization'.

The history and reality of chieftaincy tells us that political reconstruction has to take into account the history and contemporary reality of African polities, and to devise new solutions which not only do justice to the realities of African polities, but will also enrich the stock of inventions testifying to the political ingenuity of mankind struggling for more just, responsive and responsible polities. There are no blueprints for the process of political reconstruction, and there are certainly no occidental blueprints. But there are realities which have to be acknowledged, precisely because for more than one hundred years the colonial and postcolonial African history of the state has evidenced a fascinating and, at the same time, terrible contempt for the realities of African life. One of these realities is African chieftaincy. Any way to a future and promising African polity must give chieftaincy a prominent place in the political institutions and the political process, and integrate chieftaincy in a new system of checks and balances which restrains the abuse of power of both the national political actors as well as chiefs and their allies.

As administrative chieftainship African chieftaincy is still part of an antagonistic intermediary order caught between opposing loyalties and severe conflicts of administrative subordination, despotic politicization, ambitious striving for power and self‑interest, clientelism and patronage, folklorization and self‑traditionalization. But the history and realities of African chieftaincy demonstrate that African polities will not dispense with the institution of chieftaincy in the near future. Indeed, the institution could become an important element in the reconstruction of African polities trying to discard postcolonial despotism and the manifold abuses of power. However, a condition of this would be a transformation of African chieftaincy from an administrative institution of colonial and postcolonial despotism to part of a new order of a more just, responsive, and responsible government on the level of the central state. In contrast to the administrative chieftaincy of the colonial and postcolonial state, I call this new type of chiefship 'civil chieftaincy'.

In realizing the change from administrative to civil chieftaincy, it is extremely important to evaluate continuously the grounds on which this process of change is based. The preceding considerations suggest eight principles: the principles of local justice and local autonomy, of legal competition, of agency and competence, of civil chieftaincy, of legislative integration, and of limitation of the national power of chiefs.

1977 Between Past and Future. Eight Exercises in Political Thought. Harmondsworth: Penguin. (American first ed. 1961).

1942 Kalamba Na M'Putu. Koloniale Erfahrungen und Beobachtungen. Berlin: Mittler.

1989 "Stämme im Schatten des Staats: Zur Entstehung administrativer Häuptlingstümer im nördlichen Sudan." Sociologus 39: 19‑35.

1993 "The creation of a tradition. Fulani Chiefs in Dahomey/Bénin from the late 19th Century." Paideuma 39: 217‑244.

1989 Die feinen Unterschiede. Kritik der gesellschaftlichen Urteilskraft. Frankfurt-am-M.: Suhrkamp. (French first ed. 1979).

1983 "Ökonomisches Kapital, kulturelles Kapital, soziales Kapital." Pp. 183‑193 in Reinhard Kreckel (ed.), Soziale Ungleichheiten. Soziale Welt, Sonderband 2. Göttingen: Schwartz.

1978 "Dispute settlement and dispute processing in Zambia: individual choice versus societal constraints." Pp. 247‑280 in Laura Nader and Harry F. Todd Jr. (eds.), The Disputing Process ‑ Law in Ten Societies. New York: Columbia University Press.

1959 "Some notes on law and change in north India." Economic Development and Cultural Change 8: 79‑93.

1970 "Und nun, Lord Lugard?." Pp. 203‑219 in: Rudolf v. Albertini (ed.), Moderne Kolonialgeschichte. Cologne, Berlin: Kiepenheuer‑Witsch. (French first ed. 1963).

1975 "Introduction." Pp. 1‑13 in Ian Hamnett (ed.), Social Anthropology and Law. London et al.: Academic Press.

1993 Pouvoirs et cités d'Afrique noire. Décentralisations en questions. Paris: Karthala.

1983 Anthropology and Anthropologists. The Modern British School. London et al.: Routledge Kegan Paul. (First published 1973).

1978 "A good name is worth more than money: strategies of court use in urban Ghana." Pp. 181‑208 in Laura Nader and Harry F. Todd Jr. (eds.), The Disputing Process ‑ Law in Ten Societies. New York: Columbia University Press.

1965 The Dual Mandate in British Tropical Africa. London: Frank Cass. (First published 1922).

1995 Das neue Mittelalter. Hamburg: Hoffmann‑Campe. (French first ed. [page 105] 1993).

1986 Herrschaftsintensität und politische Ordnung. Berlin: Duncker‑Humblot.

1983 Law and Economic Organization. A Comparative Study of Preindustrial Societies. Cambridge et al.: Cambridge University Press. (First ed. 1979).

1983 "The invention of tradition in colonial Africa." Pp. 211‑261 in: Eric Hobsbawn and Terence Ranger, The Invention of Tradition. Cambridge et al.: Cambridge University Press.

1976a A la recherche de la justice. Quelques aspects du droit matrimonial et de la justice du Juge de Paix et du Chef Supérieur de Anufòm à Mango dans le Nord du Togo. Leiden: African Studies Centre.

1976b "La justice coutumière dans le Nord‑Togo." Recueil Penant 85 (751‑754): 35‑70.

1979 "Unité du droit où diversité du droit: bases juridiques du droit coutumier au Togo." Verfassung und Recht in Übersee 12: 143‑158.

1980 "Chieftaincy in Northern Togo." Verfassung und Recht in Übersee 13: 115‑121.

1981 "Chefferie au Nord‑Togo. La position ambiguë d'un chef supérieur des Anufòm à N'zara (Sansanné‑Mango), Nord Togo." Revue française d'histoire d'Outre‑mer 68 (250‑253): 204‑212.

1987a "Chiefs and African states: some introductory notes and an extensive bibliography on African chieftaincy." Journal of Legal Pluralism 25/26: 1‑46.

1987b "Chef coutumier: un métier difficile." Politique Africaine 27: 19‑29.

1988 "État et pouvoir traditionnel en Afrique ‑ position ambiguë du chef coutumier face à l'État africain (notes préliminaires)." Droit et Cultures 15: 71‑114.

1989 "Esquisse du parlementarisme et du monopartisme en Afrique: le cas du Togo." Afrika Fokus 5 (3‑4): 107‑131.

1991 "The Togolese chiefs: caught between the Scylla and Charybdis?" Afrika Focus 7: 121‑152.

1992 Aventure Démocratique au Togo: le chef traditionnel pris entre l'État et son peuple. Documentary film, 22 min; 16 mm. Leiden: African Studies Centre.

1993 "La Commission Nationale des Droits de l'Homme au Togo: une perspective d'anthroplogie juridique." Pp. 131‑147 in Étienne Le Roy and Trutz von Trotha (eds.), La violence et l'État. Formes et évolution d'un monopole. Paris: L'Harmattan.

1994 "Et toujours ce chef coutumier: résistance au pouvoir étatique au Sud‑Togo sous tutelle française." Pp. 129‑156 in: Wilhelm J. G. Möhlig and Trutz von Trotha (eds.), Legitimation von Herrschaft und Recht. Köln: Köppe.

ROUVEROY VAN NIEUWAAL, E. Adriaan B. van and Els A. van ROUVEROY VAN NIEUWAAL‑BAERENDS

1975 Sherea. Justice du chef supérieur à N'zara (Sansanné‑Mango, Nord‑Togo). Documentary film, 16 mm, 23 min. Leiden: African Studies Centre.

1976 Ti Anufó, un coup d'oeil sur la société des Anufòm au Nord‑Togo. Trois documentaires à court‑métrage. Leiden: African Studies Centre.

1986 Distanz und Nähe. Über Politik, Recht und Gesellschaft zwischen Selbsthilfe und Gewaltmonopol. Tübingen: Mohr.

1987 "Zwischen Streitanalyse und 'negativem Evolutionismus'. Skizzen über einige Probleme der Rechtsethnologie aus soziologischer Perspektive." Zeitschrift für vergleichende Rechtswissenschaft 86: 61‑137.

1988 "Zur Entstehung von Recht. Deutsche Kolonialherrschaft und Recht im 'Schutzgebiet Togo', 1884‑1914." Rechtshistorisches Journal 7: 317‑346.

1993a "'C'est la pagaille'. Quelques notes sur l'élection présidentielle et son observation internationale au Togo, 1993." Politique Africaine 52: 52‑159.

1993b "Beobachtungen eines Wahlbeobachters: die togolesische Präsidenten 'wahl'." Nord‑Süd aktuell 7: 624‑639.

1993c "Intermediäre Rechtsordnung. Zur Organisation der 'Häuptlingsgerichtsbarkeit' in der deutschen Kolonie Togo, 1884‑1914." Pp. 431‑453 in Werner Krawietz, Leopold Pospisil and Sabine Steinbrich (eds.), Sprache, Symbole und Symbolverwendungen in Ethnologie, Kulturanthropologie, Religion und Recht. Festschrift für Rüdiger Schott zum 65. Geburtstag. Berlin: Duncker‑Humblot.

1993d "La dépossession du pouvoir et la 'déresponsabilisation' de l'individu dans l'évolution vers la constitution de l'état et l'acquisation de son monopole de la violence." Pp. 15‑33 in Étienne Le Roy and Trutz von Trotha (eds.), La violence et l'État. Formes et évolution d'un monopole. Paris: L'Harmattan.

1994a Koloniale Herrschaft. Zur soziologischen Theorie der Staatsentstehung am Beispiel des 'Schutzgebietes Togo'. Tübingen: Mohr.

1994b "'Streng, aber gerecht' ‑ 'hart, aber tüchtig'. Über Formen von Basislegitimität und ihre Ausprägungen am Beginn staatlicher Herrschaft." Pp. 69‑90 in Wilhelm J. G. Möhlig and Trutz von Trotha (eds.), Legitimation von Herrschaft und Recht. Köln: Köppe.

1995a "Gewalt, Staat und Basislegitimität. Notizen zum Problem der Macht in Afrika und anderswo." Pp. 1-16 in Heidi Willer, Till Förster and Claudia Ortner‑Buchberger (eds.), Politische Macht in Afrika. Münster: LIT.

1995b "Ordnungsformen der Gewalt oder Aussichten auf das Ende des staatlichen Gewaltmonopols." Pp. 129-166 in Brigitta Nedelmann (ed.), Politische Institutionen im Wandel. Kölner Zeitschrift für Soziologie und Sozialpsychologie, Sonderheft 35. Opladen: Westdeutscher Verlag.

1969 "Procedural informality, reconciliation, and false comparisons." Pp. 137‑152 in Max Gluckman (ed.), Ideas and Procedures in African Customary Law. London: Oxford University Press.

^{^[1]} The observations and considerations which I present here are based on many years of research into the German colonial history of Togo (see e.g. von Trotha 1994a) and on the experience gained during my visits to Togo either as a researcher or as an international observer for the Federal Government of Germany during the presidential election of 1993 (von Trotha 1993a, 1993b). In this paper I make scant use of special empirical or historical examples or material drawn from and references to other research. Those who are interested in my empirical, historical and literary data are referred to the publications mentioned before or to others concerning the issues discussed (among others von Trotha 1995a, 1994b, 1993a‑d, 1988). I should add that my data on the history of chieftaincy and the state of postcolonial chieftaincy in Africa owe much to the research of my colleague van Rouveroy van Nieuwaal who has spent a large part of his scientific career documenting, analyzing and theorizing about the development of chieftaincy in Africa, whose publications taught me almost everything I know [page 80] about present-day chieftaincy in Africa, and who has kindly shared with me many of his observations about this issue which are still unpublished.

^{^[2]} For the concept of the 'early state', see e.g. Müller 1986, Claessen and Skalník 1981.

^{^[3]} At the same time the idea of a tightly regulated order was contradicted by the idea of the 'tribal' order as conflict-ridden anarchy, for which Hobbes gave the paradigmatic theoretical concept.

^{^[4]} However, the Constitution of the Fourth Republic excludes chiefs from being founding members, leaders or executive members of political parties and excludes them from being candidates in some of the most important elections to national bodies and offices.

^{^[5]} The principle of local justice implies that, in communities where the legal function rests with a council of elders or with the institution of the earth priest, there is no role for chiefs, and local dispute institutions should not be transformed into chief's courts by state intervention.

^{^[6]} It may be remarked, however, that the processes of integration, as well as the idea of a unified law, presently seem to be in decline, having lost their historical thrust even in western societies (von Trotha 1995b).

^{^[7]} These were the major urban centers which I had the chance to visit in 1988 during a research trip to Togo searching for material and oral remnants of German colonial history and accompanying my colleague van Rouveroy van Nieuwaal in his continuing research on chieftaincy in Togo.

^{^[8]} But it may be noted that this glossing over fosters a vision of 'traditional society' in which conflict, social strife and clashing interests are absent, i.e. in which exactly those social phenomena are missing which are at the very heart of the problem of representation.

^{^[9]} One of the 'hottest' problems would be, which chieftaincies were to be represented, and one of the most pressing problems would be to ensure that the more powerful chieftaincies did not monopolize the seats reserved for chiefs.

^{^[10]} Obviously the problems of federalism are far beyond the scope of this paper. With respect to chieftaincy they imply a whole bucketful of far‑reaching questions, such as: How is a democratic government (in the western sense) to be installed on the level of the regional states? Should a democratic government be instituted at all on the level of regional states, since it is not only the Asante chieftaincy which would resist any efforts in this direction? How could the representation of chieftaincy on the national level seem to presuppose that there was some kind of democratic government on the regional level? Does the latter imply an even more complicated constitutional arrangement of more than two chambers in order to represent on the national level not only the regional states but also the chieftaincies?

^{^[11]} Rudolf Asmis was a member of the German colonial government in Togo from 1906 to 1912 and its expert on all questions concerning indigenous and colonial law. He was one of the most interesting personalities of the German colonial service. Later he became a top ranking official of the NSDAP and was intended for the leadership of the projected Ministry of Colonial Affairs of the Reich.

^{^[12]} Arguing from the historical experience of the occident, the political philosophers did not know of the fascinating range of possibilities for securing these checks and balances demonstrated by the African experience. This is rich in instructive examples, to be found, for instance, in segmentary societies, many precolonial chieftaincies, and the various forms of rule by elders' councils.

^{^[13]} Above, note 4.

^{^[14]} Ibid.