The Somali Way: Rule of Law without the State
The Law of the Somalis, by Michael van Notten, is a landmark book. See a review of it: (www.amazon.com/Law-Somalis-Foundation-Economic-Development/product-reviews/156902250X/ref=sr_1_1_cm_cr_acr_txt?ie=UTF8&showViewpoints=1 It is a pioneering study of one of the world’s half-dozen great legal systems. The author, a Dutch legal scholar (and voluntaryist), married into Somalia’s fifth largest clan, the Samaron, and lived the last dozen years of his life with his adoptive kinsmen, taking full advantage of that unique opportunity to study Somali politics and customary law. The book is the first study of a customary law that treats it not as a relic from the past but as instructive for the present. Michael died before completing the book, but he had gathered the ethnographic data and made copious notes; all that remained was to organize these into a book. In his will, he asked me to do this — and I did.
How did I meet this remarkable man? I’d heard what he was doing and wanted to work with him in some way. So I made several efforts to contact him — without any result. Finally, inasmuch as Emi and I were living in Las Vegas at the time, he emailed me. Would we help him and Flory Naima-Waris get married if they stopped in Las Vegas, where there was no residence requirement, on their way back from a conference in Canada? Yes, of course. They had married in Somalia in the traditional way, but his mother-in-law wanted the added assurance of the marriage being sanctioned under Western law. She might have been a bit skeptical of her son-in-law, who, when it came time in the traditional ceremony for the bride’s family to ask how many camels he’d give if he ever left Flory, had replied , “If I should ever leave Flory, I’ll pay the family 200 camels.” The customary number being between 40 and 50 camels, she may have thought her new son-in-law wasn’t taking things entirely seriously.
That evening in Las Vegas, we had dinner together, the first time I’d met either of them. Flory, who spoke only Somali and French, was anxious to ask me something, and Michael translated. Did I, as an anthropologist, think it possible that her kinsmen, the Samaron, could come into full participation in the modern world without having to come under the authority of any government, their own or any other?
She could have knocked me over with a feather. I’d been thinking about that question for years, but had never thought I would hear it asked — whether a traditionally stateless society could move intact into the modern world without invoking or succumbing to a political state. The mainstream assumption was that the state was a normal and necessary step in social evolution, but I disagreed; I thought it a social pathology that had been a detriment, a stumbling block in the normal path of evolution. I told Flory that yes, I thought what she asked was possible. It had never been done and would doubtless meet resistance from the family of nations if it came to a confrontation — so the Samaron would have to make every use of protective coloring. It would take imagination, patience, perseverance, innovation, and possibly heartbreak along the way. But, yes, I thought it was a realistic goal.
Michael and I collaborated closely for the next few years on a novel aspect of his book, which was to propose a contemporary application of Somali law that would enable it to continue its growth to to the point where it could serve the needs of world commerce and provide a bridge, as Flory had wished, for the Somalis to fully participate — socially, economically, technologically — in the contemporary world without coming under the dominion of a political entity. If not a complete blueprint for a free city and ultimately a free society, the reader will at least find here a heuristic book par excellence that will open new directions of thought. The following is my summary of Somali customary law that I gave at the World Freedom Summit of the International Society for Individual Liberty (ISIL) in Williamsburg, Virginia, 2007:
The Somali Way:
Authentic Rule of Law without the State
Were there such a category, Somalia would hold a place in the Guinness Book of Records as the country with the longest absence of a functioning central government. When the Somalis dismantled their government in 1991 and returned to their pre-colonial political status, the expectation was that chaos would result — and that, of course, would be the politically correct thing to expect. Imagine if it were otherwise. Imagine any part of the globe not being dominated by a central government and the people living there surviving, even prospering. If such were to happen and the idea spread to other parts of Africa or other parts of the world, the mystique of the necessity of the state might be irreparably damaged, and many politicians and bureaucrats might find themselves walking about looking for work.
If the expectation was that Somalia would plunge into an abyss of chaos, what is the reality? A number of recent studies address this question, among them one published in 2005 by economist Peter Leeson drawing on statistical data from the United Nations Development Project, World Bank, CIA, and World Health Organization. Comparing the last five years under the central government, 1985-1990, with the most recent five years of anarchy, 2000-2005, Leeson finds these welfare changes:
- Life expectancy increased from 46 to 48.5 years. While this is a poor expectancy as compared with developed countries, what is important to observe in any measurement of welfare is not where a population stands at a point in time, but the trend. Is the trend positive, or is it the reverse?
- Number of one-year-olds fully immunized against measles rose from 30 to 40 percent.
- Number of physicians per 100,000 population rose from 3.4 to 4.
- Number of infants with low birth weight fell from 16 per thousand to 0.3—almost none.
- Infant mortality per 1,000 births fell from 152 to 114.9.
- Maternal mortality per 100,000 births fell from 1,600 to 1,100.
- Percent of population with access to sanitation rose from 18 to 26.
- Percent of population with access to at least one health facility rose from 28 to 54.8.
- Percent of population in extreme poverty (i.e. less than $1 per day) fell from 60 to 43.2.
- Radios per thousand population rose from 4 to 98.5.
- Telephones per thousand population rose from 1.9 to 14.9.
- TVs per 1,000 population rose from 1.2 to 3.7.
- Fatalities due to measles fell from 8,000 to 5,600.
An even more comprehensive study published last year by Benjamin Powell of the Independent Institute, concludes: “We find that Somalia’s living standards have improved generally . . . not just in absolute terms, but also relative to other African countries since the collapse of the Somali central government.”
Somalia is now the largest exporter of livestock of any East African country. Its pastoral economy is stronger than that of either of its neighbors, Kenya or Ethiopia. Telecommunications have burgeoned; a call from a mobile phone is cheaper in Somalia than anywhere else in Africa. A small number of international investors are finding that the level of security of property and contract in Somalia warrants setting up business there. Among these companies are Dole, BBC, the courier DHL, British Airways, General Motors, and Coca Cola, which recently opened a large bottling plant in Mogadishu. A five-star Ambassador Hotel has opened in Hargeisa, and three new universities are fully functional: Amoud University (1997) in Borama and the University of Benadir (2002) and Mogadishu University (1997) in Mogadishu.
The Call to “Establish Democracy”
All of this is terribly politically incorrect for the reason I suggested. Consequently, the United Nations has by now spent well over two billion dollars attempting to re-establish a central government in Somalia. But here is the irony: It is the presence of the United Nations that has caused virtually all of the turbulence we have seen in Somalia. Let me explain why this is so.
Like most of pre-colonial Africa, Somalia is traditionally a stateless society. When the colonial powers withdrew, in order to better serve their purposes, they hastily trained local people and set up European-style governments in their place. These were supposed to be democratic. But they soon devolved into brutal dictatorships.
Democracy, which has at best a checkered career, is unworkable in Africa for several reasons. First, what voting immediately does is to divide a population into two groups, a group that rules and a group that is ruled, and this is completely at variance with Somali tradition. Second, if democracy is to work at all, it presupposes a populace that will vote on issues. But in a kinship society such as Somalia, voting takes place not on the merit of issues but along group lines. One votes according to one’s clan affiliation. Since the ethic of kinship requires loyalty to one’s fellow clansmen, the winners use the power of government to benefit their own members, which means exploitation of the members of other clans. Consequently when there is a governmental apparatus with its awesome power of taxation and police and judicial monopoly, the interests of the clans conflict. Some clan will control that apparatus, and out of self-defense to avoid being exploited by another, each has to attempt to be that controlling clan.
The turmoil in Somalia consists in the clans maneuvering to position themselves to control a central government whenever it might come into being, and this is exacerbated by the governments of the world, especially the United States, keeping alive the expectation that a government will soon be established and supplying arms to whomever at present seems most likely to be able to “bring democracy” to Somalia. The “warlord” phenomenon refers to clan and independent militias, often including leftovers from the former central government, who promise to establish the anticipated government under the control of their own clan. They often operate outside the control of the traditional elders and sometimes in opposition to them.
Hence the most violent years in Somalia were the years following 1991 when the United Nations was physically present, attempting to impose a central government. When the UN withdrew in 1995, the expectation of a future central government began to recede, and things began to stabilize. But the UN continued it efforts to re-establish a government through a series of some sixteen “peace conferences,” all of which ultimately failed. In 2000 it set up a straw government, the Transitional National Government (TNG). However, not only did the northern Somali clans not recognize the TNG, it was unable to control even its intended capital city of Mogadishu. Today, under the aegis of the African Union, a combined “peace-keeping mission” of UN-backed troops from Uganda and Ethiopia, Somalia’s traditional enemy, is in Mogadishu attempting to prop up the TNG and secure its control over the rest of Somalia. Violence consequently soars.
The situation is curiously like an event in Greek mythology. The gods on Mt. Olympus were enjoying a festive party, to which, understandably, they had not invited Eris, the goddess of discord. Just as understandably, Eris took the matter personally. She had the blacksmith Hephaestus fashion a golden apple on which was inscribed καλλιστι — “To the fairest.” Then she opened the door a crack and rolled the golden apple into the festive hall. In no time at all, the gods were fighting over who should have the apple. In Somalia, the golden apple is the expectation that there will soon be a central government. As long as there is that expectation, the clans must fight over who will control it.
Somalia and the Rule of Law
Now, I’ve gone this far without telling you much about Somalia. It’s the Horn of Africa, that part of northeast Africa that juts out into the Indian Ocean just below the Arabian Peninsula. The Somali culture area includes all of the Horn and is home to some 11.5 million people. The Colonial powers arbitrarily fragmented this culture area so that today parts of it fall under the jurisdiction of Kenya in the south, Ethiopia in the west, and Djibouti in the north. The remainder, along the coast, is the area that is now without a working government.
Even more than similar language, lifestyle, or physical character, what the people of the Horn of Africa have in common is a body of customary law, the Xeer (pronounced “hhair”). While it differs from clan to clan in non-essential ways such as founding myths, the Xeer is remarkably uniform with respect to its provision for the protection of persons and property. It provides a rule of law—customary law, that is—permitting safe travel, trade, marriage, and so forth throughout the region. The Xeer is most intact in the north of Somalia, which was under British rule; in the south, the Italians tried to eradicate it. Nonetheless, it survives to a significant degree everywhere, even in the urban areas, and is virtually unaffected in rural Somalia.
The Xeer is the secret to the whole perplexing question of Somalia’s success without a central government, since it provides an authentic rule of law to support trade and social relations over a wide area. Fortunately, we know something about the Xeer because of Michael van Notten, a Dutch lawyer who early in the 1990s married into the fifth largest clan in Somalia, the Samaron of Awdal in the northwest part of the country, and lived with them for the last twelve years of his life. He took full advantage of that opportunity to research the Xeer. The result was his pioneering study, The Law of the Somalis (Red Sea Press, 2005). Van Notten died when his manuscript was half finished. Fortunately, he had completed assembling most of the ethnographic material. In his will, he asked that I edit and complete the manuscript for publication. The task still remaining is to see the work translated into Somali.
Highlights of the Xeer
There is time in this short talk to give you only some of the highlights of the Xeer. First, law and, consequently, crime are defined in terms of property rights. The law is compensatory rather than punitive. Because property right requires compensation, rather than punishment, there is no imprisonment, and fines are rare. Such fines as might be imposed seldom exceed the amount of compensation and are payable not to any court or government, but directly to the victim. A fine might be in order when, for example, the killing of a camel was deliberate and premeditated, in which case the victim receives not one camel but two. Also, since law and crime are defined in terms of property rights, it is not surprising that the Xeer forbids taxation.
Second, in order to assure that compensation will be forthcoming even in cases where the perpetrator is a child, or penniless, or crazy, or has fled abroad, the Xeer requires that every person be insured against any liability he might incur under the law. If an individual cannot make the required payment, then a designated group of his kin is responsible. Van Notten describes in an interesting way how this happens:
A person who violates someone’s rights and is unable to pay the compensation himself notifies his family, who then pays on his behalf. From an emotional point of view, this notification is a painful procedure, since no family member will miss the opportunity to tell the wrongdoer how vicious or stupid he was. Also, they will ask assurances that he will be more careful in the future. Indeed, all those who must pay for the wrongdoings of a family member will thereafter keep an eye on him and try to intervene before he incurs another liability. They will no longer, for example, allow him to keep or bear a weapon. While on other continents the re-education of criminals is typically a task of the government, in Somalia it is the responsibility of the family.
If the family tires of bailing out a repeat offender, they can disown him, in which case he becomes an outlaw. Not being insured, he forfeits all protection under the law and, for his own safety, must leave the country. Customary law is similar in this and many other respects throughout the world. An instance is told in the founding legend of my own Clan MacCallum in Scotland. The founder of the Clan supposedly was exiled 1500 years ago from Ireland because he was a hothead whom his family disowned for embroiling them in fights. In the loneliness of his exile on the North Sea, he became a man of peace. He couldn’t return to Ireland, as he was no longer under protection of the law and could have been killed with impunity. So he went instead to Scotland and there founded our clan.
A third point about the Xeer is that there is no monopoly of police or judicial services. Anyone is free to serve in those capacities who is not at the same time a religious or political dignitary, since that would compromise the sharp separation of law, politics, and religion. However, anyone performing in such a role is subject to the same law as anyone else — and more so. A public figure such as a religious or political dignitary or a policeman or a judge is expected to lead an exemplary life. If he violates the law, he pays double what would be required of an ordinary person.
Fourth, there is no victimless crime. Only a victim or his family can initiate a court action. Without them, no court can form. A court cannot investigate on its own initiative any evidence of an alleged misconduct.
Lastly, the court procedure is interesting. From birth, every Somali has his own judge who will sit on the court that will judge him should he transgress the law. That judge is his oday, the head of his extended family consisting of all males descended from the same great grandfather, together with their spouses and children. Several extended families make up a jilib, which is the group responsible for paying the blood price in the event a member kills someone of another jilib or clan. The oday, or judge, is chosen carefully following weeks or months of deliberation by elders of the clan. He has no authority over the family but is chosen solely for his knowledge of human affairs and his wisdom, and he can lose his position if his decisions are not well regarded in the community.
When an offense is committed, the offender goes first to his oday, who then forms a court with the oday of the plaintiff. If those two cannot resolve the matter, they form another court made up of odays representing additional families, jilibs, or clans. A virtue of each person knowing from birth who will be one of his judges, and vice versa, is that an oday knows each person in his extended family intimately and can observe and counsel him before what might seem a small problem escalates into a crime.
Once a court forms and accepts jurisdiction over a case, its first action is to appoint a recorder, who will repeat loudly during the hearing each important point made by the speakers. It then announces when and where it will hear the case. When that time arrives and the court opens, the court invites the plaintiff to state his case. The plaintiff has the right to appoint a representative to make the presentation on his behalf. During the presentation, the plaintiff has opportunity to confer with his family to make sure that he has not forgotten anything. When the plaintiff has finished, the court asks him to summarize his case and state his demands.
Lastly, the court asks the defendant to present his defense and any counterclaims.
The court then adjourns to deliberate whether any witnesses should be heard. A disputed fact is admitted as evidence only when three witnesses have testified to its truth. The parties can also call in experts and character witnesses. If the victim has died or has been wounded, the court will instruct a religious dignitary to assess how the victim died or was wounded. These dignitaries assess injuries usually by applying the standards enumerated in the commentary of the twelfth-century Muslim scholar al-Nawawii’s Minhaaj at-Talibiin. When the plaintiff has elaborated his case with witnesses and evidence, the defendant is given a chance to refute the plaintiff’s charges, arguments, and evidence. It is not customary to cross-examine witnesses.
Finally, the court adjourns again to evaluate the evidence. If less than three witnesses support a fact, or if the witnesses contradict each other, the court will proceed to oath taking. When the court finally closes, should the plaintiff have failed to convince the court of his case, the court will not usually rule in the defendant’s favor until the latter has taken an oath of innocence. There are several types of oaths. The simplest starts by the oath giver saying, “I swear by my virility.” Alternatively, he can say, “I swear by Allah.” A stronger oath is the so-called triple oath, in which he swears the same oath three times. A stronger oath yet is the one that is repeated 50 times. Also, there is the so-called divorce oath, in which the oath giver swears by his marriage(s). If it is later found out that he lied, his marriage(s) become null and void.
In a longer talk, I could discuss the role of police and enforcement of judgments, but this much should give some flavor of the legal system practiced by the Somalis. It provides an effective rule of law without the backing of a government.
The Xeer takes it place among such great legal systems of the world as the Roman law, the English common law, the Law Merchant, and the Jewish traditional law (Halacha). It must be extremely old and is believed to have developed in the Horn of Africa. There is no evidence that it developed elsewhere or was greatly influenced by any foreign legal system. The fact that Somali legal terminology is practically devoid of loan words from foreign languages suggests that the Xeer is truly indigenous.
Michael van Notten’s book describing this system of law deserves to be better known and widely read. It is the first study of any customary law to treat it not as a curiosity of the past, but as potentially instructive for a future free society. In his book, Van Notten lays out some practical applications to the world in which we find ourselves today, applications which I haven’t had time to touch on here. Only time can tell whether the intervention of foreign governments, which is intensifying with the refusal of Somalis to die or remain poor, will frustrate this potential.
I would like to end with a plea to help get this book into wider circulation. If you are connected with any schools or colleges, please contact them. Many of them will find it highly appropriate. A review by a distinguished legal anthropologist on Amazon.com ends on this note:
The readability and relative brevity of the text highly recommend The Law of the Somalis for classroom use. It fits comfortably alongside, and is a refreshing addition to, the scholarly tradition reflected in such classic ethnographic legal-political titles as, Tswana Law (I. Schapera), The Cheyenne Way (K. Llewellyn and E.A. Hoebel), and The Judicial Process among the Barotse (M. Gluckman).
Harold J. De Nike, J.D., Ph.D. Department of Anthropology University of NewMexico
De Nike, Howard J. 2006. “Customary Law Upholds Natural Law.”
Amazon.com customer review of Michael van Notten, The Law of
the Somalis (Red Sea Press, 2006)
Leeson, Peter T. 2005. “Better Off Stateless: Somalia Before and After
Government Collapse.” West Virginia University.
Powell, Benjamin, Ryan Ford, and Alex Nowrasteh. 2006. “Somalia after
State Collapse: Chaos or Improvement?” Independent Institute
Working Paper No. 64.
Van Notten, Michael. 2006. The Law of the Somalis: A Stable Foundation
for Social and Economic Development in the Horn of Africa.
Trenton NJ: Red Sea Press.
Spencer and Emalie MacCallum
Casas Grandes, Chihuahua
August 25, 2011
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