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The Rule of Law without the State

September 12, 2007

Tags Free MarketsGlobal EconomyLegal System

Were there such a category, Somalia would hold a place in Guinness World 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 precolonial 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 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, including one 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. This is a poor expectancy as compared with developed countries. But in any measurement of welfare, what is important to observe is not where a population stands at a given time, but what is 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.

Another 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's pastoral economy is now stronger than that of either neighboring Kenya or Ethiopia. It is the largest exporter of livestock of any East African country. Telecommunications have burgeoned in Somalia; 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 doing 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 5-star Ambassador Hotel is operating in Hargeisa, and three new universities are fully functional: Amoud University (1997) in Borama, and Mogadishu University (1997), and University of Benadir (2002) 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 the case.

Like most of precolonial 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 is unworkable in Africa for several reasons. The first thing that voting does is to divide a population into two groups — a group that rules and a group that is ruled. This is completely at variance with Somali tradition. Second, if democracy is to work, it depends in theory, at least, upon 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 exists a governmental apparatus with its awesome powers of taxation and police and judicial monopoly, the interests of the clans conflict. Some clan will control that apparatus. To avoid being exploited by other clans, each must attempt to be that controlling clan.

The turmoil in Somalia consists in the clans maneuvering to position themselves to control the government whenever it might come into being, and this has been 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 whoever seems at present most likely to be able to "bring democracy" to Somalia. The "warlord" phenomenon refers to clan and independent militias, often including leftovers of the former central government, who promise to establish a 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 United Nations withdrew in 1995, the expectation of a future central government began to recede, and things began to stabilize. But the United Nations continued it efforts to re-establish a government through a series of some sixteen failed "peace conferences." 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 its intended capital city of Mogadishu. Today a combined "peace-keeping mission" of United States–backed troops from Ethiopia, Somalia's traditional enemy, and Uganda under the aegis of the African Union is in Mogadishu attempting to prop up the TNG and secure its control over the rest of Somalia. Violence 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. Eris, just as understandably, took the matter personally. She had the blacksmith Hephaestus fashion a golden apple, on which was written 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. The golden apple in Somalia 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, some in Ethiopia in the west, and some in Djibouti in the north. The remainder along the coast is now without a working government.

What these people have in common, even more than similar language, lifestyle, and physical character is a body of customary law, the Xeer, which differs from clan to clan in nonessential ways such as founding myths but is remarkably uniform with respect to its provision for the protection of persons and property. The Xeer 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 economic development. Fortunately, we know something about the Xeer because of Michael van Notten, a Dutch lawyer who in the early 1990s married into the Samaron Clan in the northwest of Somalia, the fifth largest of the Somali clans, 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 largely completed assembling the ethnographic material. In his will, he asked that I edit and complete the manuscript for publication. The task ahead 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 not payable 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 but two camels.

Fines are used in another interesting way. It is expected that a prominent public figure such as a religious or political dignitary or a policeman or a judge should lead an exemplary life. If he violates the law, he pays double what would be required of an ordinary person. Also, it should be noted, since the law and crime are defined in terms of property rights, the Xeer is unequivocal in its opposition to any form of 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 fully insured against any liability he might incur under the law. If an individual cannot make the required payment, 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 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 1,500 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 as long as he is not at the same time a religious or political dignitary, since that would compromise the sharp separation of law, politics, and religion. Also, anyone performing in such a role is subject to the same laws as anyone else — and more so: if he violates the law, he must pay heavier damages or fines than would apply to anyone else. Public figures are expected to show exemplary conduct.

Fourth, there is no victimless crime. Only a victim or his family can initiate a court action. Where there is no victim to call a court into being, no court can form. No court can investigate on its own initiative any evidence of alleged misconduct.

Last, 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 highly 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 the two odays 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 to be 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. The court then announces when and where it will hear the case. When the court session 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.

Then the court adjourns to deliberate on 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. 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.

It should be noted that even when the plaintiff fails to convince the court of his case, the court will usually not rule in favor of the defendant until the latter has taken an oath of innocence.

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 entirely without the backing of a government.

The Xeer takes its 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 I haven't had time to touch on here. Whether or not the intervention of foreign governments, which has intensified with the refusal of Somalis to die or remain poor, will frustrate this potential, only time can tell.

Bibliography

De Nike, Howard J. 2006. "Customary Law Upholds Natural Law." Amazon.com Customer-Reviews

Leeson, Peter T. 2005. "Better Off Stateless: Somalia Before and After Government Collapse." West Virginia University. (PDF)

Powell, Benjamín, Ryan Ford, and Alex Nowrasteh. 2006. "Somalia after State Collapse: Chaos or Improvement?" Independent Institute Working Paper No. 64. (PDF)

Van Notten, Michael. 2005. The Law of the Somalis: A Stable Foundation for Economic and Social Development in the Horn of Africa. Trenton NJ: Red Sea Press.


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