Recently, it came to my attention that Somalia had a completely different type of law. It may be the only country in the world that has shown that they “don’t need central government” and was functioning fine.
This is enough to interest anyone attracted to the philosophy of law. I wanted to see examples and details. How realistic was the statement that they didn’t have a central government at all, and how does their system of justice compare with ours?
The book I found was “The Law of the Somalis” by Michael van Notten, a man eventually killed while trying to create his own region in Somalia, with parts written by the editor Spencer Heath MacCallum (of Red Sea Press) and Frank van Dun. I found the whole book a good read. The quotes below will give an idea of the concepts it holds. Note that the book may not reflect what is happening in Somalia in 2018, as it was written in 2006. But in terms of the value of learning about real cultures that are different from our own, this makes no difference.
First though, how does Somali law work? For a Westerner, it can be defined by its differences from our system. I’ll do this in one paragraph:
Suits are brought forward when someone perceives a wrong done to them (or to those in their group), and only then – there is no government agency going around trying to find things to bring people to court and punish them for even if no one has a greivance. The laws are not statutory (created by individuals). They are known because they are standard in terms of offence and punishment (compensation for most things, death in a few), and are memorized by every Somali at age seven. Judges made decisions based on what the people are already practicing instead of looking to statutes. Offenses are in terms of property, whether damage or theft or disfigurment of someone’s body, and in some cases to harm done, such as for murders or rapes, but even in these cases are largely settled in terms of property – a compensation paid to the group affected, but can also result in executions. There is no prison. Judges are part-time, paid for their service in each trial, and sometimes also given presents, but make most of their money from their other job. They are appointed by their group based on the group’s consensus that they are the wisest person available to peacefully settle conflicts (trials), and they can be replaced or abandoned at any time by the group or by an individual. Thereby the judge for any given individual is already set for speedy justice if there is ever a trial. There are two judges in each trial, one representing each party. They are compelled to give a satisfactory judgement because if they don’t they won’t be asked to judge again. Because crimes and compensations are so standardized, most wrongs can be addressed without recourse to a judge if the parties want to do so, and parties are always free to settle disputes amongst themselves without recourse to judges, and can make arrangements outside of the standardized compensation scheme, although such deviations will not factor as precedents in later cases. In the event where the two judges can’t agree on a verdict, they appoint a disinterested judge from a neighboring family to make the final decision. There can also be appeals, but this is uncommon. Often judges ask the parties beforehand if they will abide by their decision, and if the parties won’t, they can refuse to judge the trial. If no satisfactory decision comes about, the parties will most likely take matters into their own hands in terms of redressing the wrong by force. Whether they do this, or are authorized by judges to use force to obtain the compensation awarded, those taking on this police-type work – there are no professional police, but when police or soldiers are needed they are pulled from the men available (under pressure of a fine) from the group of the guilty person – usually consult a third party about who owes the compensation, what the compensation exactly is, and how much force they are entitled to use, otherwise they might overstep and be guitly of a crime themselves. Groups serve as insurance for their members because they are responsible for rendering punishment or compensation (if not from the guilty individual then from other members of their group). Because the general threat is larger conflict -- even war -- the groups on each side are motivated to ensure that judgements are peacefully settled.
The main qualification I would offer in thinking and discussing Somali law is that I doubt anything like this would be transferable to the West, simply due to the entrenched practices and customs of law. There is evidence against and none that I know of for the practice of adopting even a legal system superior in many ways or in injecting parts piecemeal into another organic system. Also, I have doubts about how the Somali system would survive serious clan or national conflicts once they emerge, or how the problem of violence spiraling out of hand would be contained without a powerful central government. And while some of their laws strike Westerners as wise, others strike them as barbaric, most notably, perhaps, laws to do with women -- although part of our shock might have to do with the special assumptions in Western culture about women, and it should be noted that while in Somalia their solutions to things like rape strike us as potentially bad, our solution may not do any good either, particularly in light of actual cases, and is commonly used against innocent people to bring them harm. Also, we can see weaknesses in Somali society in that many people flee because they find it suffocating, although this is also common to every country I know of.
Also, Somali law depends on things that don’t exist in the West, such as extended family and clan structures that provide for the enforcement of judgements, marriage and kinship ties between groups as structures of peace, community knowledge of and responsbility for all people that provide for treating any individual involved in a crime in a way likely to play out well, and a broad distrust of political authority that protects their system of justice-that-is-acceptable-to-people from being replaced by statute law created and administered by an ever-growing tax-funded government.
I suspect the good that comes from exposure to systems like the Somali is in the real awareness that other systems are possible and work, that none of the structures in our own systems are necessary or the only ones possible, that other approaches and procedures are superior to many of ours, and that some of the good of Somali law will register in people’s minds and influence their later decisions about changes in our legal systems. The details of our current system are not the same as those of the system we had before, nor the system of any number of other places, nor the system we will have in the future. It is simply a matter of change over time, and I hope we educate ourselves appropriately to allow ourselves to make changes toward the better and not the worse.
One of the richest lessons of Somali law is that justice is administered only as a method of resolving conflict between people, and in that way contributing to peace, and attempts to compensate those who lose rather than punish those who err, which contrasts with our statute laws which increase the amount of harm and expenses our people are burdened with. The necessary focus of Somali law is prosperity, and it is future-looking.
Another rich lesson is how Somali judges are immediately and always accountable to the people, and are thereby forced to render judgements widely acceptable to them. In our own system, judges are protected from our people even when people are displeased or offended. This is because there are several barriers between people and the administers of justice: 1) judges claim that “they don’t make the rules, only enforce them”; 2) the large distance between judges and people; and 3) the rarity of qualified people to fill the role of judges due to the type of training required withing our legal institution. However, this does not mean that the response is not there: instead of an immediate response by the people that would affect and change judges to better suit people, resentment and distrust builds broadly, weakening the legal authority. In this way, laws intolerable to the people continue, causing greater harm to people and society.
An important frame of reference that might not be obvious to readers who haven’t studied early English or world history is the focus of Somali law on property (instead of punishment in our modern Western system). Early English law – the ancestor of our own system, combined with the French version of Roman law – was pretty much the same. I remember reading a while ago about how property was the thing the authors of the Constitution considered protecting for U.S. citizens but eventually left out. (Why? Discuss here.)
Another point of reference when considering Somalia is that of the many recently failed states we’ve seen in the news in the last couple of decades, mostly second and third world countries where technologically and sparcely populated, clannish groups of people adapt to modern ideas, improved weaponry, and deals with outside powers. I often think about South Sudan when I read lines like, “[T]he clan system only became such a monster with the introduction of democracy.”
I’ll turn now to some quotes from the book, which I suspect will provide any Western reader with a ton of valuable new insights:
Van Notten section:
Natural law implies a respect for property rights and for freedom of contract, whereas statutory law mostly infringes those rights and that freedom.
(After a long period where large, powerful democratic government, then dictatorship, a leader was ousted in 1991) no consensus emerged for appointing a new head of the Republic. In that staleate the government disintigrated, and its erstwhile citizens returned to their traditional system of law and politics.
Somalis strongly oppose being divided into two political groups, whose that rule and those that are ruled. And that is precisely what democracy does.
[T]he “West” owes its wealth not to democracy, but rather to the protection of property rights, and that democracy is undermining and destroying those rights.
A weakness of looking only at actual dispute resolutions is that the focus is on conflict situations rather than on behavior of people living in harmony with one another. It is harmony, rather than conflict, that generates the best law.
Natural law ... is not a command, custom, or contract, but an objectively determinable order of existence that people must respect if they are to live together in peace.
To understand natural law, one has to ask what people should do in order to live and work in peace. The answer is that they must (1) avoid physical damage to one another’s person, work, and property (2) honor their contracts with one another, and (3) compensate those whome they have harmed by infringing their person or property. When people conduct themselves in this manner, we say that there is peace, that natural rights are respected, that respect for natural law prevails.
When people respect that order and the boundaries that define it, they act justly – justice being nothing else than the will to respect the order of the human world and to recognize in word and action what belongs to another.
In societies lacking a central government and, in particular, in societies based on kinship, customary laws are likely to be the only general rules that will be enforced. In such societies, customary laws are enforced in ways that differ considerably from the kind of enforcement commonly found in societies in which a central government has monopolized the adjudication and enforcement of rules of conduct. For example, no official or court will take the initiative to investigate or judge an act when no one claims to have been victimized by it. Moreover, as a rule, courts are made up of judges from the group or clan of the victim as well as that of the malefactor. Once a customary court has rendered a verdict of guilt, it is up to the victim to decide whether he wants the verdict to be enforced. In the affirmative, the judges may order his kinsmen to assist the victim in collecting his due or authorize the victim to execute the verdict at his own expense.
(On statutory law, like we have) Usually they are designed by government employees, legistlated by parliament, promulgated by a government official such as a king or a minister, and enforced by a police force controlled by that official. The police typically have a legal monopoly over the use of the weapons required for redressing injustices. The people have little to say in all of this. In a modern democracy, for example, they are asked every four years or so to cast their vote for a politician of their choice, after which they must accept any laws imposed upon them. In short, statutory law is typically “politicans” law.
Statutory laws can be oppressive to the point of creating a sort of permanent war between the government and its people, and customary laws can be barbaric. Rules that are oppressive or barbaric are surely incompatible with natural law and therefore do not really deserve to be called laws.
[R]ights, properly understood, never conflict. If a presumed right conflicts with another, then one or the other is not a right.
Respect for his natural rights by other persons ensures that a person can live and act freely among others. Respect for rights ensures, therefore, that peole have the freedom to acquire, use, and transfer resources as they see fit, provided they respect the same freedom in all others. Implicit in this concept is that no one needs the permission of another to exercise a right, and one is entitled to defend himself against any who interfere with such exercise.
Lawyers also speak of rights established by contract. This may be a misleading expression because a contract does not really <i>establish</i> control but merely transfers it from one person to another. Obviously, a contract is lawful if it involves no violation of any lawfully established right of a third party. When government creates (grants) “rights” for (to) some or all of its subjects, we would do better to speak of “legal rights” (or political priveleges).
Another word wanting clarification is “State.” I will use it to deonte a government that monopolizes the sue of retaliatory force, i.e., the force that is used to redress injustices and to remedy violations of property rights. Such a monopoly exists whenever police use force to stop others from offering police services. Indeed, a state is primarily a police monopoly. A euphemsm for such a monopoly s “central government.”
Stateless nations ... may have many independent police forces.
Soomalinimo (a concept meaning Somali unity and sometimes solidarity) could be understood as respect for traditional policital principles, for instance the idea that politicians should exercise no legislative or executive powers.
A Somali judge has only one thing in common with the judges employed by the member states of the United Nations, and that is that his vocation is to settle conflicts. He differs from those state judges in everything else – in the way he is trained, selected, appointed, organized, and paid.
When a customary court of law calls for enforcement of a verdict, it enlists all able-bodied clansmen to act as part-time policemen. They are instructed to use force against the condemmed party, but the law sets the limits within which that force may be exercised. Clansmen who refuse to answer such a call will be fined.
(On family life – not really relevant to subject of law) Men tend to marry in their twenties, girls shortly after reaching puberty. ... Given the shart division of labor in the household, husband and wife tend to respect each other’s activities, on rarely interfering in the other’s work. This causes husbands and wives to respect each other’s person. It cannot really be said that, within the limited context of the nuclear family, either spouse dominates the other. In any dominate, it is the parents over the children. Children are brought up to look after their parents’ well being until the day the parent dies.
A mother takes charge of her children until they reach the age of five or six, then transfers the task of educating her sons to her husband, who trains them in herding livestock and cultivating land. At birth, a boy is given a young animal. The offspring of that young camel also belong to him. Thus it is that when a boy reaches adulthood, he has acquired both the skills and the animals needed to provide for his own livelihood, as well as that of his parents if need be.
... When the Somalis adopted the Moslem religeon, they felt the need to express their religious unity in similar family terms. Hence they acknowledge Akiil Abuu Taalib, an uncle of the prophet, as their Moslem ancestor.
These judges tend to be impartial and are careful only to apply rules generally respected by the clan.
When Somalis speak of their property (literally “wealth”) they usually mean livestock, huts, household utensils, and weapons, and for cultivators, parcels of land, ploughs, seeds, and their harvests. The Somalis also set great store on preserving their dignity and the integrity of their body, which for women includes their beauty. They value communal property, particularly pastures and wells, which are controlled, if not actually owned, by several families. Lastly there is the forest, which belongs to the entire clan. The acquisition, use, and disposal of these valuable things are subject to a great many customs, amont which are laws prohibiting homicide, assault, abduction, robbery, burglary, theft, arson, extortion, fraud, etc.
A man must never be in the same hut with a nubile girl. Obviosly this rule aims at protecting young women against the advances of passionate men, but an unmarried woman who has failed to find a husband can find it useful. She can force a man to marry her simply by going inside his house. His only way out of such a situation is to marry her or pary her family the bride price.
Most Somalis consider these rules a part of their customary law. However, most of these rules do not protect their freedom and are hard to justify in terms of natural law. In that sense, they are not strictly rules of law but elements of culture and folklore. At best, such rules facilitate social intercourse. At worst, they obstruct it and infringe upon the natural rights of people.
[L]ack of a written language necessarily limits access to a great deal of abstract thought.
[T]he basic rules of their society tend to be non-oppressive. If a leader of any group of Somalis tried to lord it over his fellows, he would soon find himself alone. The others would simply pack up ...
There is a tradition that a Somali who speaks while standing might not mean what he says. If he expects to be taken at his word, he takes the time to sit down.
Somalis hold that their laws apply to every person born as a Somali. They realize that neighboring nations, such as the Oromo and Afar, live under different laws. ... [E]ach person must abide by the laws of his own nation. When these laws contradict each other on a given point, a compromise must be found.
[P]eople are free to settle their cases outside of the customary law. The need for this occurs, for instance, when the family of a murdered person refuses to accept the customary 100 camels but is willing to settle for, ay, 130 camels. Such a deal is not prohibited, but it cannot create a precedent under the customary law.
The daily conduct of a judge is supposed to be exemplary. Nothing less is expected from him than a deep and unfailing respect for the law. The same applies to all political and religious dignitaries.
His only task is to settle conflict by applying the basic rules that people in the community already generally observe.
Judges are specialists. Somali judges receive no special education or training in the law. They educate and train themselves. Yet they are specialists; none but these judges will be asked to settle disputes according to the Somali law. Somalis definitely do not judge their accused in peoples’ courts or in political courts. To become a judge, a Somali must first become the head of his extended family, and indeed family heads are chosen for their wisdom and knowledge of the law. There are no rules as such for educating and training judges. They learn by attending the sessions of the courts and listening to the comments of the villagers when verdicts are being discussed.
A Somali judge is free to develop his own principles of law and his own doctines. The test of whether such principles and doctrines are acceptable to the community comes as soon as he has given his verdict on a conflict. If a verdict deviates from what the community finds reasonable and just, there is little chance that its author will be asked again to sit as a judge.
If a court was not constituted in time, or fails to render a verdict, the victim and his family are free to enforce restitiution or compensation themselves. If excessive force is used, however, or more compensation is collected than was due, the initial perpetrator will be entitled to compensation at the expense of thie initial victim.
Somalis do not look at their nation’s jurisprudence as a source of law. Rather, they hold that the law is to be found in the customs of the clan. A court is of course free to educate itself by looking at the jurisprudence of other courts, but ultimately judges myst discover the law within the reason and conscience of the community where the dispute occured and not in the verdicts of other courts.
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.
On whether a rule deserves to be called a law, according to American jurist Lon Fuller in 1964: Such a rule must be known to the people, understandable, non-contradictory, stable, and applied as known, and it must prescribe conduct that is within the power of people to follow. ... One of the most exacting requirements is that one rule must not contradict another.
Every human being lives with rules, not all of which are imposed by others. Every individual must make some rules of his own to give coherence to his life and projects.
When people have freely and voluntarily entered into a contract, they are bound by it. They are no longer free to disobey its rules. For instance, if someone buys a television set and takes it home while promising to pay for it the next day, he is bound to that promise. If he refuses to pay, then the seller has the right to use force. After all, the seller only agreed to transfer title to the buyer on the condition that the price would be paid. However, if the contract was about rendering a personal service, for example in the context of employment or membership in a club, then the contracting parties are at all times free to break that contract, but they must pay the severance fee, if such a fee was agreed upon.
Every person aggressed against has the right to defend himself. It should be noted, however, that no one has an obligation to defend himself. Should a poor and hungry boy steal an apple from an orchard, for example, the owner, rather than demand punishment and compensation might feel sorry for him and offer him an entire meal or even a job.
What purpose is served by the rules politicians legislate and call “laws” and impose upon others? There are only two ostensible motives for politicians to legislate rules. Either they want to impose a specific morality on others or, in the name of justice or efficacy, they want to substitute for the thousands of independent contracts that regulate particular aspects of peoples lives a single, codified set of regulations. Both motives have their problems.
One cannot make people virtuous by imposing a morality on them. Imposing a morality simply reduces a person to the level of will-less person, a moron, a slave. Virtue is a matter of free choice. ... Some have given a name to the act of imposing a morality. They call it fundamentalism.
Not only is [the knowledge required for the regulations politicians want to establish] always changing, it is dispersed and known only to the people themselves. It is continually being bundled by the market mechanism and manifested in the form of prices. The only way such knowledge can be effectively used is by people freely making contracts in open markets. In that way, resources are allocated in concert with people’s preferences. Legislation, on the other hand, reflects the preferences of the legislators and not of the people themselves, which is why rules created by legislation inevitably misallocate resources.
Politics. Somalis define politics as the management of the affairs of the clan. It has nothing to do with the making of laws. The Somali political system is completely separate from the nation’s law system; its politicians have no power to enact statutory laws, and they can make no decisions that would run counter to the customary law.
As for conscription, one must perform military duty as well as civil duties such as repairing a communal well or enforcing a verdict if requested by a court of law. Lastly, the freedom to appropriate objects not claimed by others, such as air, or fish in the open seas, does not always include land. Most clans, for instance, are reluctant to recognize property rights in grazing lands.
Different rules apply with respect to land. One must distinguish between grazing land, agricultural land, wells, trees, and settlements.
A clan that admitted outsiders as landowners would have to tolerate an ever growing enclave of foreigners in its midst, and if these belonged to a neighboring clan with which it was at war, it could no longer defend itself.
Somalis who practice agriculture recognize the right of an individual clansman to acquire and use particular parcels of land, but not to dispose of them as they like.
A well-known temporary restriction on land-ownership is that of usufruct, the right to enjoy the use or fruit of something owned by another. Widows usually acquire the usufruct of the land that was held by their husband. A widow is entitled to use the land that was held by their husband. A widow is entitled to use the land as she sees fit or to share in its yeild. She is not entitled to alienate it, because ownership of the land devolves on her husband’s children.
The custom is that owners shall not deny passing nomads access to their water ponds and wells, but they are entitled, if they choose, to collect a water fee from them.
In principle, the law makes no difference between premeditated murder, murder, and unintentional killing. In all three cases the same compensation, called blood price, is due to be paid within a year’s time.
If the murderer has escaped (the care of his own clan), the family of the victim is entitled to put to death two people of the murderer’s clan, preferably people of equal status as the victim. This may strike one as a disproportionate and unjust sanction, but it must be remarked that this rule is rarely enforced because the family of the murderer, under the threat of losing two of its members, usually cooperates in capturing before he flees. Even then, the principle of “a life for a life” is not always applied. If the two clans have a good relationship, one now at risk because of the murder, the clan leaders of the victimized person will often ask the bereaved family to soften its demands.
The law does not call for imprisoning a murderer. Somalis do not believe that any good can come from humiliating and punishing a criminal, and the task of re-educating lawbreakers is left to their families and [larger groups]. Criminal law does not exist in Somalia. The focus of the law is on restitution and compensation.
If the damage done to someone’s body is such that the victim requires health care, the perpetrator is obliged to provide this care and, if necessary, lodge and feed his victim until he has recovered his health. If the victim dies during the time of his lodging, his host must pay the blood price to his family.
A rapist is usually condemned to marry the woman he raped, in which case no compensation is due, only the bride price. The same is true if a woman is abducted. Woman have the right to refuse to marry their rapist or abductor, but usually the victim is pressured by her family to consent to the marriage.
Because herds cannot be watered simultaneously, one must be given priority. The law rules in favor of the smaller herd. The logic of this is rule is that if an animal should die of thirt during the waiting time, the owner of the smaller herd would suffer a comparitively greater loss than the owner of the larger herd.
Insults and defamation. The blemish on that honor disappears only when the victim’s rights have been restored or compensated and due fines paid. ... When a man is struck on the face in public by another, the victim will pay five camels. Similary, when a young man insults a young women, he will likely be condemned to pay five camels. If she is unmarried and the insult risks destroying her chances for marriage, the compensation may be as high as the blood price. When an elderly man tells a young man that he is out of his mind and compares him with an animal held in low esteem, such as a donkey, it is not considered an insult. But when a young man calls an elderly man a donkey, it is. A man’s failure to marry the woman to who he was betrothed also calls for compensation. When a woman commits adultery, her husband can claim compensation from the man who committed it.
Usually the person who made the insult can prevent the insulted person from seeking a court condemnation by apologizing. The best apology is for him to go to the insulted person, accompanied by his oday, or extended family head, and offer a small gift while the oday places his turban on the head of the insulted person. Such a gesture effaces the insult.
The divorce is final when one spouse says three times, “I divorce you.”
They can voluntarily render justice to their victim or wait until their victim forces them to do so. Should the victim decide to use force, he had begter first ask an impartial person to establish to what extent his right was violated and who exactly was the perpetrator. Otherwise he risks the possiblity that the violator will defend himself and that, instead of justice, more damage will be done. Once the identity of the violator and the nature of his obligation to justice have been established by a court, the violator again can either honor the verdict or let himself be forced to do so.
He must stop any ongoing violation, return any alienated goods or compensate their value, pay any costs incurred by the victim, and pay the victim a fine if the violation was intentional.
If someone becomming an adult wants a different person to be his judge, he has the option of leaving his own extended family and forming a new one, or else teaming up with another. Alternatively, he can try to convince all the members of his family that its head should be replaced. Indeed, a head of a family is constantly under pressure to maintain his position. If he is not performing properly, he runs the risk of being put aside. This may happen immediately after he has made a great mistake, or gradually. In the latter case it sometimes happens that a family has several heads at the same time.
Should the judge of a wrongdoer refuse to assume jurisdiction over the conflict, ie refuse to form a court with the judge of the victim, a problem arises. This happens occasionally when the conflicting parties belong to different clans. In that case, the family of the victim is allowed self-help. It is entitled to use force to redress the injustice that was done to it. It need not do so immediately, and indeed it sometimes happens that years go by before an opportunity for self-help arises.
Judges often demand beforehand to know whether the litigants will respect the verdict. If the answer is negative, they may refuse to judge the case. If the answer is positive, the litigants may be requested to sign a statement to that effect.
Both parties have the right to appeal a verdict. They can ask a different set of judges to hear the case. A court of appeal must have a larger number of judges than the court whose verdict is being appealed, and the judges must be drawn from a wider group of families or clans.
In some clans, a verdict is final only when two verdicts have been rendered in the same sense. As many as 12 appeals are permitted in other clans.
When a plaintiff has finished, the court asks him to summarize his case and state his demands. Finally the court asks the defendent to present his defence and any counter claims.
A disputed fact is admitted as evidence only when at least three witnesses have testified to its truth.
It is not customary to cross-examine witnesses.
If less than three witnesses support a fact, or if the witnesses contradict each other, the court will proceed to oath taking. ... If it is later found out that he lied, his marriage(s) become null and void (in the case where an oath-taker swears on them. Similar consequences for other things he may swear on.)
The most common pelantly is to slaughter and eat one of the wrongdoer’s animals while he remains hungry. Or if the wrongdoer is a woman, the penalty may consist of burning before her eyes grass mats she has woven.
The murder of a baby draws a compensation of 30 camels for a boy and 15 for a girl (compared with 100 for a man and 50 for a woman). A baby becomes a person when it can run.
If a man seriously wounds another, his family must take the one he wounded into their home and look after him until he is healed. If he dies during his treatment, 100 camels are due.
Drivers must respect all other users of roads, including stray animals, which deserve the same protection as stray children.
A policeman is not free to arrest people belonging to another clan without both parties being accompanied by their elder.
A Somali has the right to be judged by a court consisting of his elder and that of his opponent. His clan would never honor a verdict rendered by a court that was constituted differently.
A similar problem arose when the Republic of Somalia (a regime that ended a decade before this book was researched) began to grant permits and licences to its citizens. A Somali civil servant was not seen as a servant of the nation, but as a member of his clan who happened to “own a chair” in the organization of the Republic. Generally speaking, Somalis considered government policy and instructions irrelevant; a civil servant was expected to exploit his office as much as he could and to distribute the proceeds among his clansmen.
A fee, elsewhere known as a bribe ...
In the beginning, Ethiopian soldiers (successful invaders at the time) randomly killed a few Somalis. The Somali judges thereupon ruled that for every Somali life taken, two Ethiopian soldiers should be killed. After a few applications of this ruling, the Ethiopian military commanders accepted it – and the number of random killings by his soldiers fell off dramatically.
(When during the era of a federal government people sometimes called federal police to arrest people who’d already been judged by a customary court, hoping to get a better deal from the feds) The customary judges introduced a new policy. On rendering a verdict, they would inform the police and the courts of the federal and regional governments. Also, they began requesting the litigants in advance to agree in writing that they would honor the verdict. The result was that the police no longer listened to such malcontents.
When a customary court condemned a perpetrator to death, the normal procedure was to ask for volunteers to enforce the verdict from among the young men in the village where he had been condemned. This was always a messy affair. It has now come about that the customary court asks the federal police or military to execute its sentence. If the response is positive, the court hands over its proven criminal to the federal executioners and requests that the body be returned to them.
(When federal border police and soldiers began seizing cars from passers-by to pursue smuggling suspects) The elders ruled that a Somali who allowed his car to be seized by such policemen and soldiers would be considered an accessory to any mischief later engaged in. It should be clearly understood that the customary law, which protects freedom of movement and trade, does not prohibit smuggling.
[Administrative heads] takes orders from no one, nor does he have authority over anyone. Those who call themselves village chiefs have only an administrative function. It is their job on occasion to talk to visiting officials of state agencies, but they have no power to make any decision on behalf of their [own group].
[The position of “elder”] does not imply any powers, but simply means someone is respected because of his wisdom and his skill in settling conflicts.
All clans adhere to one political philosophy, and that philosophy aims at preventing any form of dictatorship.
Decision making in the assembly involves no casting of votes. Rather, the Assembly members keep on talking until a consensus is reached. That is why the meetings can last a long time, sometimes several months. The reason why the Assembly operates by consensus is easy to understand: it prevents the Assembly from taking decisions that would infringe on anyone’s freedom and property rights.
In peacetime, the Assembly has no police or mlitary force at its displosal to enforce its decisions. That ensures that it cannot make decisions that go against the interests of the community. If it were to make such decisions, they would be ignored. ... Dissenters are not required to participate in the action, and in the extreme they are always free to quit the clan if they choose.
In wartime, a clan tends to appoint as commander someone with military skills. Such a person has limited powers. He cannot negotiate with other clans on economic matters, for example. It he did so anyone and reached an agreement, it would be null and void. Only a peacetime leader can do that.
(In the their kinship system, where families prevent violence by intervening and creating an armed stalemate)
- Kinship pushes groups within the clan to use their power only for defensive purposes.
- Conflicts can be “frozen” by forming segmental groups of equal strength that bring about a stalemate between the conflicting parties.
- Expert mediators then emerge to settle quarrels and conflicts peaceably.
- Mediators settle conflicts by reference to property rights.
- Mediators do no use police to enforce their verdicts.
It is impossible for one segment to conquer or dominate another, because the victimized segment gets help from the next relatives as long as the segment is indeed victimized.
But how can a [wise person] restore quarreling people to friendship? Who determines what is right and what is wrong? Judges have no legislation to fall back upon and no police at their command. All they have is their understanding, reason, and intelligence – wisdom, if you prefer the term. Accordingly, the fourth principle of segmental opposition calls for an accepted theory of justice on the basis of which the [wise person] can solve the problems he is consulted about.
There is such a theory. It is a widely accepted, general theory of justice that is best described by the words “property,” “contract,” and “consent.”
Imagine someone taking a cow that another person considered his. The first says, “I took your cow because I wanted it.” The second says, “It is my cow.” So they ask the Wise Person who is right and who is wrong. If the Wise Person says the first is right, then, of course, the second can back the cow, because it would be considered the right of anyone to take what he likes. Therefore, such a decision would not end the quarrel; it would be the starting point of endless fighting. The only way to end the quarrel would be to say that no one may take another’s property without his or her consent. Only then could both parties keep what is his or hers.
In a state of anarchy, the only reasonable was of thinking of a right is that it must be capable of being universalized.
Limiting the power of judges. Judges have neither statutory law nor police power available to them, but only the power of their word to convinve the quarrelling parties.
Respecting property rights. Judging can only solve quarrels by referring to the univeral equality of rights. Because there can be no valid rights at all without property rights, this means agreeing to property rights as the foundation of justice.
These principles tend to emerge spontaneously in any community of people lacking a common command structure. The primordial order of human society is thus one without a central government. That does not mean, however, that such societies will remain forever peaceful. A society that sets up a standing army to defend itself against neightboring clans will almost inevitably degrade into a command society. The reason is that such an army can use its powers in two ways: to defend its own community and also to attack and oppress it. If the soldiers of a standing army feel themselves closer to their commander than to their families, they will be tempted to choose his side when he sets out to become the ruler and oppressor of his community.
[N]o one is conceded special powers over his fellow clansmen. This is doubly true in the case of anyone acting in a political or judicial role. Such a person is expected to be more law-abiding than Somalis who exercise no such functions.
The fact that participants tend to listen more carefully to successful herdsmen, farmers, or merchants than to those who eke out a meagre existence does not mean that “the rich” will always prevail over “the poor”; for as long as there are some who oppose a particular decision, it will not be taken. Those who remain opposed will not be asked to submit to or contribute to the project, and there is no power to stop a clansman from leaving his group and forming a new one.
At least half a dozen [African tribes] have established a monopoly of force and organized the lives of their subjects in the smallest detail. But none of these states survived.
Many Somali clans have stories about how, once upon a time, the elders gave their dignitaries legislative and executive powers, but how those powers were abused and shortly thereafter abolished. One such story is this:
Once upon a time, the clan convened an assembly and decided to appoint a king. The king’s first royal decree was to inform the clan that for breakfast, lunch, and supper he wanted only to eat the marrow of the bones of young goats. For each meal, he decreed that ten goats should be slaughtered for him. He believed this would secure his eternal youth and felt sure the clan would recognize that to be in its best interest. After feeding their king in this way for several days, the clansmen began to worry. It was not that they feared their king would suffer indigestion. No – they feared because their herds were rapidly dwindling in size. So they convened another assembly and decided collectively to murder their king. And so they did, with the resolve never to appoint another.
[F]ully conscious of the danger of a government becomming the nation’s master instead of its servant.
[T]he best way to prevent abuse of retaliatory force is to let it be exercised by a multitude of independent entities that can hold one another in check.
The underlying principle was that groups should remain small and without a chief. Large is more than unwieldy; it is unresponsive to individual preferences.
While the internet was still owned by the U.S. government, few used it. But when the government relinquished control in 1983, millions began to use it, resulting in a tremendous upsurge in the economy.
In every society lurks the danger of the police systematically misusing their force to extort money from the population. How this happens tends to follow a pattern. First, a group of police establish a monopoly, eliminating rival groups. Next they disarm the population, decreeing that people no longer have the right to defend themselves against aggression. The police will now exercise that right, and they must monopolize the use of force, they say, if they are to do a proper job. To provide money for the police, a parliament is created. To control the judges, the politicians monopolize the settlement of disputes, instructing the police to enforce only the judgement of courts they themselves set up. By this monopoly, they can influence the judges to apply a distorted view of natural rights. From then on, the politicians can make any laws, including tax laws, without having to fear that the judges will render them null and void.
These so-called “rights” allow democratic parliaments to provide any “service” they want and to cover their costs by taxation. ... they use those services as a pretext for levying taxes.
[The Somali nation’s] laws further stipulate that only the customary judges can decide what constitutes a crime; defining crimes is too sensitive a matter to leave to policement or politicians.
[N]atural rights are based on facts of nature. As such they are objective, to be discovered, whereas staturory laws are contrived, subjective, and self-serving. Natural rights are particularly attractive to people who may have nothing more in common than their wish to live in the same country.
[T]he judges obligation to apply only rules that are actually being followed in practice by the people of their community.
Somali law is maintained not only by prompt litigation but also by the fact that the family of the perpetrator generally accepts the verdict of the court. Rarely do they appeal.
The rules on restitution, compensation, and fines are so clear and detailed that the parties can usually settle between themselves if they wish.
Because every Somali must permently retain a judge, judges always know their clients and are aware at an early state if a conflict is shaping up. That gives them an opportunity to prevent a threatening conflict from becomming violent. Also, because they know their client, they often have opportunities to reconcile the conflicting parties after the law has been applied, thus reducing the liklihood of repetition or revenge.
The law is adjudicated by part-time judges who charge relatively small fees for their services, since they mainly earn their livlihood from a second occupation such as herdsman or merchant. Occasionally judges receive gifts from their clients. The same is true of policement. This obviates the need for taxation and the consequent injustice and destruction of wealth associate with Western-style governments.
The Somalis see their law as part of their personal identity. As one Somali put it, “This law enables me to go through life as a civilized man.” That hits the nail on the head; for the main reason why people need law is to subdue their primitive impulses for violence and vengeance. At about the age of seven, every Somali child is educated in the law. He learns by heart the different ways he can do wrong, the compensation each wrong requires, the name of his judge, and the members of his family who will have to pay compensation if he breaks the law.
Probably every Somali is aware of one or more of the many strengths of the law system and intuitively senses how well their laws have served them so far.
The law requires compensation rather than punishment. Somali law is more concerned with the damage lawbreakers may have caused than with their re-education. Consequently, it focuses on restitution and compensation and does not call for imprisonment or the imposition of large fines. It does not seek to himiliate and punish criminals but leaves that to their families. This shows great wisdom. Jailing people and imposing heavy fines does nothing to negate the original violence but, on the contrary, adds to the total violence committed in the world. Moreover, punishment rarely deters crime; if it did, the world would be free of crime today. Worse still, prisons are schools where people can improve their criminal skills. Finally, building and operating prisons entails heavy costs which, when funded by taxes, brings about further violations of property rights. Indeed, imposing huge fines and imprisoning criminals may serve only to satisy cravings for revenge, fill the public treasury, provide jobs for prison guards, and impress subjects with the power of the state.
Under Somali law, a person is free to engage in any peaceful activity of his choice. None need apply for a licence or permit to follow the profession of judge, policeman, soldier, herdsman, farmer, hunter, trader, doctor, dentist, veterinarian, accountant, lawyer, banker, insurer, pilot, sailor, fisherman, teacher, tailor, hairdreser, smith, etc. Nor do Somalis need a licence or permit to construct a house, mine gemstones, drill for petroleum, leave their country, employ foreigners, operate a telephone or aviation company, or establish any other type of businesss.
From the age of 14 onward, a Somali woman risks being married against her will. Her parents may force a husband on her, or a husband may force himself on her by abducting or violating her.
In many respects, however, the rights of women are well protected. A husband who beats his wife, for example, must pay compensation. If a woman is mutiliated in her face, the compensation is higher than for similar mutiliation on a man’s face and may even be as high as the blood price. And if someone smashes a woman’s hook tooth, the compensation is twice as much as that for the hook tooth of a man.
The law holds that insults can be unlawful
Under natural law, every person who is the victim of insults or badmouthing has the right to provide the correct information about himself to the people who were misinformed. If he does so, the culprit will have paid dearly for his little pleasure, for he will no longer be taken seriously by anyone who heard of his verbal exploits. ... The reason the Law prohibits only <i>physical</i> aggression is because there are objective and verifyable standards for establishing such aggression.
The law does not provide for extradition. No Somali clan has yet established a treaty with a foreign government relative to the extradition of criminals who have escaped Somali law by fleeing abroad. The Republic of Somaliland established such a treaty with the Repbulic of Ethiopia a few years ago. It was applied once, when Somaliland extradited two men of the Ogaden clan to Ethiopia. The Ogaden still have not forgiven Somaliland this “treason” to the concept of Soomalinimo (unity).
Comments on the strengths and weaknesses of Somali law
The strengths of the Somali law system enumerated above are the main reason for the Somalis being such an outspoken and proud people and, on the whole, law-abiding. Indeed, the Somali law system stands up well against the legal systems of other countries. People in other countries often do not realize the extent to which their laws attack human dignity and foster crime. It may be well, therefore, to briefly review those two weaknesses of most foreign legal systems.
Human dignity comes under attack whenever and wherever government violates natural rights with impunity. A typical government practice is to require permits to engage in activities that, according to natural law, every person shoould be free to engage in. By enforcing licencing laws, and especially when it does so selectively, government restricts people in the exercise of their natural rights, thereby degrading them to the level of slaves and animals – of beings lacking capacity for rational thought. Worse, it renders everyone in its territory subservient to its officials.
Crime is promoted every time a government establishes a monopoly, levies a tax, awards a subsidy, conscripts a soldier, or regulates production and consumption. People who refuse to comply with such laws are considered to have committed a “crime against the state.” The government then is so busy prosecuting those who fail to comply that it has no time, money or inclination left for prosecuting victims of common crimes such as murder, rape, and robbery. When it does, however, catch some murderers, rapists, and robbers, it locks them up together so that they can learn from one another how to avoid getting caught the next time.
Another way in which the law systems of other countries promote crime is in not requiring, except in special cases such as driving a car, that anyone be insured against liabilities that might arise under the law. Consequently many people have nothing to lose by engaging in murder, rape or robbery beyond the possiblity of spending some jail time. These people would hesitate longer before engaging in such crimes under a law system that required full insurance coverage because, if caught violating someone’s rights, they would face a hefty increase in their insurance premium. Another factor contributing to criminality is that most laws made by governments severaly increase the cost of doing business. Government regulation of production and consumption so drastically increases the costs of production that it becomes difficult for many people to make their living in the market and they turn instead to crime.
Economic development hinges on the free interplay between technicians, investors, and entrepreneurs.
[When the author sought counsel with Somalis about somehow setting up a new administrative region that would be better for trade and commerce] One of the elders sitting at the gathering suggested a specific procedure: “Gather with your business friends, and form a new clan on Somali territory. It should be a clan embodying all the strengths and none of the weaknesses you have detected in our clans. Be certain that its laws are compatible with our own law system so that we can settle any conflicts that might arise between the new and the existing clans. If the new clan prospers, the existing clans will not lose a moment in adopting its superior business environment as their own custom.” Those present at the gathering discussed the proposigion at length, and none found anything wrong with it.
How could one persuade the Somalis with joy in their heart to revive a gigantic parasite that, incapable of defending the general interest and public good, was at best, during its short existence, a useless intermediary, a reducer of liberties, a producer of harassing regulation and an enemy of Somali traditions, and at worst a faceless predator systematically plundering the country and distributing its loot among the members of the dominant tribe? - Christian Bader
The Somali system of law and politics is realistically geared to protecting every person’s freedom. Democracy serves little more than to provide an easy life and guaranteed revenue for its operators and proteges.
Automatically, the community with the greatest numbers wins the election, and the minority parties then put rebellion and secession at tthe top of their political agenda.
Proponents of democracy genearlly advance only one argument in defence of their system, and that is that it is superior to dictatorship. In that way, they avoid discussion of its other characteristics. They do that because they know that democracy regularly violates a number of fundamental rights, such as the right to defend oneself, to chose one’s own court of law, to enter into mutually agreeable contracts with people of one’s choice, to freely engage in economic activities of one’s choice, to freely dispose of one’s rewards for services rendered, to educate one’s children, to leave and re-enter one’s country, and to operate on open markets. Democratic governments violate those rights by maintaining a monopoly of all police and judicial services, conscripting people for their armies, levying taxes, imposing passport and visa requirements, subsidizing one’s competitors, and thousands of other restrictions on one’s freedom – and all of this with one’s own money, taken willy-nilly.
Certainly the founders of the United Nations were acutely conscious of the fact that Adoph Hitler had come to power by a democratic process. ... A year later, in a referendum to decide whether he should also become president, Hitler received 84.6 percent of the popular vote. This illustrates how readily a cunning demagogue can take possession of democracy’s awsome political powers.
[N]owhere does the UN founding Charter mandate [trying to institute democracy in countries]. That document doesn’t mention the word “democracy” or anything about it. Instead it calls for respect of human rights, which the founders of the UN, the Nazi conflagration fresh in mind, must have though an alternative to democracy, not merely an adjunct to it.
[D]emocratic system with all its awesome powers to restrict freedom and create privelege.
The Somalis were ruled according to the democratic system from 1960 to 1969. With their own eyes they saw how it divided their nation in two groups, those who rule and those who are ruled. The rulers and their protoges shamelessly violated the fundamental rights of the rest of the population in their urge to fill their pockets. In 1969, Somalis felt relieved when a dictator put an end to democracy. But they soon found they had their own Hitler, and they suffered badly during the 22 years it took to get rid of him.
The UN’s continuing effort to establish a democracy in Somalia suggests that its policy makers may not be wholly aware of democracy’s many weaknesses. Central among these is the fact that it doesn’t work in countries where the population is composed of close-knit ethnic groups and the only viable political parties are those formed along ethnic lines.
Anarchy shows itself whenever the warlords find people willing to help them seek power over other Somalis.
The UN moved into Somalia with eleborate plans to develop the country. All it has to show after 50 years of trying is that more than a million Somalis fled their country and now live abroad.
The UN’s biggest problem is that it doesn’t understand that law and order can prevail without a central government, without a state. In order to come to grips with the concept of a stateless society, however, one must drop the notion that law is a command promulgated by politicians.
[T]he Somali clans of that combined region took the unprecedented step of allowing the government to collapse, effectively dismantling it.
[Describing the growth of a prosperous seaport Bossaso] After the demise of the Republic, however, control passed to the local community, and the port began to be managed on a commercial basis. A lively import / export trade developed that soon reached an estimated value of $15 million USD per year. Private enterprise provided essential public services such as trash collection, power, and telecommunications. In eight years, the population grew from 5000 to 150000. Parents and teachers put up schools for their children and built a university. In the absence of a government-run court system, the head sof the extended families of contentious parties settled disputes on the basis of customary law.
The Somali economy functions as a perfect model of laissex-faire as conceived by Adam Smith. Government spending is reduced to zero and inflation is very low. The Somali shiling is freely convertible in the market and exchange rates are more stable than in most African countries. Telecommunications and air transport have made tremendous development during the last seven years.... Indeed, Somalia has no custom authorities and all goods are imported duty free. New schools and clinics are opening every day, offering their services to those who can afford to pay. - Mohamed Mohamed Sheikh
Somalis consider themselves born free. To them, the State equals registration, regulation, and restriction. - Homer 1997
No longer is there any government distribution of water and power. But the wells of the city were repaired, and the sale of water is providing jobs for hundreds of people. Generators have continued operating since the 80s. - Marchal 1999
Little also reports at length on the Somali shilling, which continues to circulate despite the absence of a national treasury.
A developing economy needs no taxation; the argument that only central governments can build roads, deliver mail, generate power, provide pure water, supply hospitals, manage schools, run telecommunications, issue money, fight contagious diseases, erect light houses at harbors, patrol neighborhoods, provide justice, protect the environment, engage in charity, help the poor, advise consumers, and protect the country and its people cannot be defended. On the contrary, abundant evidence shows that when a democratic government engages in these activities it brings personal loss of freedom, lower quality of products and services, higher costs, and stagnant innovation.
Van Dun section
It is a living and highly developed juridical system looking to the future rather than the past.
None can be forced to support any court of law or police force against his will.
[A] kritarchy is a political system in which justice (more exactly the judgement that seeks to determine justice) is the ruling principle or first cause.
Judges ... are supposed not to legislate but only to find ways and means of managing conflicts in a lawful manner. They do not seek to enforce obedience to their commands as such. Rather they seek respect for law, which is an order of things objectively given and not just anything that corresponds with whatever desires or ideals the judges may have.
[J]udges to not choose which persons will appear before them. Instead, those people desiring to have their conflicts and disputes resolved by judicial judgement will “pick” their judge.
Democracy, despite some of its advantages over other forms of political rule, is nevertheless a system in which some presume to have the right to govern the rest regardless of their consent. ... the irreparable defect of democracy is that it embodies the ‘right’ of the representatives to rule over those who did not vote for them as well as over those who did. It allows the elected rulers to violate the natural rights of people with impunity – at least if they do so in a properly legal way by specifying in advance and in sufficient detail how it should be done, by which magistrates or officers of the state, where people can complain if they feel their rights are improperly violated, and so forth. ... there is in democracy no ruly independent – no non-governmental – police or judiciary to which people can appeal. A democracy outlaws all independent sources of protection of natural rights as a matter of constitutional necessity...
Democracy is often presented as “government by consent,” but that is never more than the consent of a majority and, as a rule not even that. As a political device, democracy was no doubt a great invention. Regular elections provide a rough mechanism for ensuring an alignment of rulers and a sizeable part of the subjects over whom they rule. Elections thereby help to prevent or minimize the violent confrontations and unrelenting repression and exploitation that are permanent risks in other systems of rule. Nevertheless, elections have no basis in natural law. To understand this, it suffices to ask how a person could lawfully authorize another to do what he himself has no right to do. The question is pertinent because, to repeat, democracy is a system of political rule in which there is a distinction between the rulers and the ruled, and between the legal rights of the rulers and those of the ruled. If you attempted to do to your neighbors what a democratic government does to its citizens, let us say, tax them, fix their hours of work, force them to send their children to schools of your choice, or accept the money you have printed, you would very likely end up in jail. No democracy allows ou to do usch things. Nor does it allow you to undertake these activities in conspiracy with others. But it does allow you to have someone else do them in your name and on your behalf! All you have to do is vote for your “political representative.”
To deny anyone the natural right to withdraw his consent, moreover, makes a notion a closed community to which one is assigned by birth and for life: a life sentence. The inability to withdraw consent – to secede – except by permission of the government itself makes a farce of the whole idea of consent.
But the great mystery of democracy is taht “representatives” are vested with powers the people who empowered them are not and should not be allowed to exercise.
[C]urrent legal and political ideologies make any man or woman an artificial being, a “citizen,” whose very essense is defined and created by the legal rules of the state to which he or she belongs. Within the state, human beings have no rights except in so far as some legal authority regulates their existence and freedom. ...Without them a person is a nobody. ... Once we substitute the perspective of legal rule for that of natural law, we must admit that what a person has a right to do or to call his own depends, not on what he is or does, but on his status in the legal order in which he happens to find himself. He becomes an artificial person in an artificial order...
The glorification of such artificial legal orders is common in contemporary legal and political thought, where fiction seems invariably to triumph over reality. These orders are based on artificial or imaginary distinctions and on the neglect of or disregard for natural distinctions. Some of them arbitrarily or systematically refuse to acknowledge certain persons as persons at all.
[B]y denying natural law and the natural distinctions that constitute it, they conjure up an idea of law that makes the non-consensual “government” of one person by another seem “lawful.”
Justice. In the particular “technical” sense it is the art or skill of discovering rules, methods, and procedures that effectively and efficiently provide for the defence and, if need be, fortification and restoration the law of the human world.
A satisfatory supplier of justice
They must do so in order to elicit the cooperation of the accused and the defendents as well as to assure the plaintiffs and claimants, who initiate the proceedings.
Create a family and raise his children according to his own insights.
Develop his land, waters and air, and any material in them, and prevent others from spoiling or polluting them.
A child becomes an adult when it reaches sufficient maturity. At least until then, its parents or guardians are responsible and liable for its actions towards others. However, contracts concluded between a child and an adult are at the risk of the adult party and not at the risk of the child’s parents or guardians. ... A young adult may release his parents or guardians from their responsibility and liability for his actions by, implicitly or explicitly, indicating his willingness to assume responsibility and liability for his own actions.
Anyone is free to use force to defend his fundamental rights or to remedy their violation, subject to his own liability for excessive force or avoidable property damage. This freedom can be exercised individually or by organizing defensive police forces, including military forces, subject to the limitation just stated, which applies to all uses of force against persons.
No person can be considered a member of an association except by his explicit agreement to abide by its rules and regulations. Nor is anyone obliged to contribute labor or other assets to an association unless the contribution is part of the membership agreement.
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