Wow, it’s been almost a month since I added to the Case Study of Somalia. I apologize for the delay. I’ve been slowly working my way through Michael van Notten’s The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa. Van Notten was born in the Netherlands and received his Law degree from Leiden University. He married into the Samaron clan of Somalia in 1990 and, as a Western educated member of a Somali clan, shares his amazing insights into the structure of laws and customs that allows the Somali people to survive without government. This is not a book of anarchist theory. Rather it is a text on the reality of a functioning anarchist “state”.
According to van Notten, the Somali law system (or Xeer) consists of seven building blocks-
- Six major principles
- Rules of conduct in society
- Organizations that adjudicate and enforce the rules
- Procedural rules
- Rules of insurance
- Verdicts of the law courts
- Doctrines developed by learned men
In this post I’m just going to deal with the Six Major Principles of Somali law. I will address the other six building blocks in part 3 of this case study.
Six Major Principles of Somali Law (dulaxaan) –
- The law is separate from politics and religion
- The law has a built-in method for its development
- There is a plurality of jurisdictions and norms
- Government personnel must abide by the law
- The law originates in the reason and conscience of the community
- Judges are specialists, each with his own method of analyzing the law
1. The law is separate from politics and religion-
“One can change ones religion; one cannot change the law”
“Between religion and tradition, choose tradition.”
Somali politicians and religious leaders not only have no role in the creation of laws, but have no say in establishing courts, and may not participate in the legal system. There are no exceptions to this rule when it comes to politicians, but religious leaders can serve two limited purposes-
- family matters (those relating to marriage and inheritance) are often settledusing Koranic law, and
- When a judge is having difficulty determining the extent of a victims injuries he may ask a religious leader to investigate and testify as to the extent of the injuries. Even in these cases, the religious leader is more of an “expert witness” then anything else. All decisions are still reserved exclusively to the judge.
Even when asked to say a few words at the opening of a court session, religious dignitaries will not comment on the ‘crime’ itself, but rather speak about about the need to settle the dispute in order to maintain order within the community.
2. The law has a built-in method for its development
Since Soamali law originates not with judges or politicians, but with the people themselves, it is a set of broad principles applicable to any type of conflict and judges will never say that the law is silent or unclear on a specific issue. The Somalis acknowledge that people constantly innovate so precise rules cannot exist for human situations. As a result, the law develops along with the nations values and judges are always able to assess whether conduct is lawful or not and the law is always adapting.
3. There is a plurality of jurisdictions and norms
Just as the United States has Federal, State , County and Local laws, Somalia has a plurality of jurisdictions full of various rules – households, businesses, towns, even recreational associations all have their own sets of rules. This is all essentially contract law in that the rules only apply to that specific geographical region or social construct which all members are free to vacate if they don’t feel they can follow the specific rules required of them. Rules violations may be resolved by the head of household, in in-house judge or arbiter, or by any means determined within the contract itself.
When rules become common or widespread enough, they eventually gain recognition as laws. Typically, these are transgressions that are timeless in nature, such as the more “serious” crimes of murder, rape and robbery. These are universal “wrongs” and easily seen as such. Somalia has innumerable independent courts of law that recognize and adjudicate these laws. When varying courts disagree in their opinions of what the law is, these differences will be ironed out over time as the society as a whole makes a determination as to which ruling was “more” correct. This occurs as judges are chosen by the relevant parties in each dispute, meaning that judges known to have made rulings that go against current social norms will not be called upon to give further rulings.
On top of all these various jurisdictions, most Somalis are Muslim, so generally agree that matters regarding marriage, divorce and inheritance should have Koranic law applied. Generally the customary law takes precedence over Koranic law even in these instances unless a particular religious rule would settle the matter more expediently and to the community’s satisfaction. Finally, Somalis are completely free to settle disputes without conferring with a judge at all. Such a deal, however, cannot create a precedent under Somali law.
4. Government personnel must abide by the law
Somali judges have no more power or standing than any other clansmen. In fact, a judge who violates the law suffers heavier fines and penalties than a non-judge would in the same situation. This is because judges are expected to have a deep and unfailing respect for the law and be exemplary in their behavior.
5. The law originates in the reason and conscience of the community
Following the above logic, Somali judges are not believed to have superior intellect or wisdom, therefore they do not create law themselves. Rather they settle disputes by applying the rules of behavior that the general populace already observe. In other words, the law is not judicial, religious, or political, but that it originates in the actions of the people themselves.
Whenever a verdict is rendered the people of the community discuss it at length. Should they determine that the ruling was out of line with the society’s norms they will mention this to the judge himself. Should the judge continue to disagree with the people they will lose faith in him and he will no longer be called upon to render judgements on any issue.
Somali law has little in common with the laws of its nearest neighbors and even less in common with law systems anywhere else in the world. Additionally, legal terminology from other languages and cultures is almost entirely absent. These facts, combined with the lack of any research indicating the system was adopted means that it is safe to conclude that it is wholly a matter of Somali origin.
6. Judges are specialists, each with his own method of analyzing the law
There is no such thing as a Somali law school. Still, judges are specialists, albeit self-educated ones. They learn by attending court sessions and listening to the people analyze decisions. When they are ready to, people in conflict will come to them seeking judgement. Typicall, therefore, judges are already the head of their extended family, for it is always the wisest of people that are sought out in such cases.
That concludes the Six Major Principles of Somali Law. This is a rather complex book and I’m doing my best to distill the information from its scholarly writing into something more accessible to the “average reader”. Questions are not only welcome, but encouraged! I promise to have part three up in much less than a month’s time!