Criminy! It’s been almost a month again since my last case study was posted. I will apologize again, but no promises of timeliness this go around. I’m still working my way through Michael van Notten’s The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa. In Part Two I covered the six major prinicples of Somali Law and this time we’ll take a look at the remaining six “building blocks”-
- Rules of conduct in society
- Courts and Police
- Procedural rules
- Rules of insurance
- Verdicts of the law courts
- Doctrines developed by learned men
It is these six concepts (along with the aforementioned major principles) that define not only what the law is in anarchistic Somalia, but also show all of us how stability and order can be achieved without the unprovoked force of government. Each of these principles will be further developed in future posts as well.
1. Rules of Conduct in Society
Just because there isn’t an overriding governmental authority doesn’t mean that society doesn’t have rules. Parents have had household rules that differed from the local government’s laws for generations. Somali customary law has prohibitions against murder, assault, rape, robbery, extortion, etc. These rules stipulate sanctions for violation of the law and also authorize the use of force against the perpetrator should they refuse to honor their obligations.
The primary differences between these rules of law and the statutory laws we’re more familiar with in modern society are:
- These rules have been established directly by the society itself through the methods outlined in my previous post.
- Once found guilty the wrongdoer will be required to pay their debt to the victims of their crime rather than to “society”. Rather then simply imprison the criminal (thus burdening all of society with their care) they will be made to offer restitution to the victims (and/or the victims’ families).
2. Courts and Police
Once a conflict (or crime) occurs the only investigation that occurs is by the victim or their family and friends. Once they have discovered the perpetrator they then request that the local judge(s) form a court of law. Once they’ve found a judge (or judges) to form a court both parties are invited to present testimony and/or witnesses. Once the judges render a verdict the offending party is bound by their decision.
Should the criminal attempt to avoid the penalty then a police force of sorts will be formed from able bodied men in the community. Both the court and the police force dissolve once their specific purpose is served, leaving no standing courts or police to enact tyranny on the population.
3. Procedural Rules
- All persons are considered innocent until proven guilty, just as they are in American jurisprudence.
- There is little, if any, written documentation though a court recorder (doodqaad) will be appointed to assure all present can hear the salient points of any testimony or the ruling. Written testimony is accepted by the court, however, should a witness be unable to attend the court.
- Both parties state their cases directly to the judge(s). While there is neither direct nor cross examination the judges are free to ask for clarification and the witnesses are also free to consult with their family to refresh their memories.
- For a disputed fact to be accepted as evidence it must be attested as truth by at least three witnesses.
- Oaths of honesty may be taken to Allah, the witness’ virility, or even to one’s marriage (in which case should the testimony be proven false the marriage would be considered null and void).
4. InsuranceAll Somalis are considered to be insured by their extended family (jilib) against liabilities or punishments handed down by the customary courts. If the wrongdoer is unable to pay the compensation demanded by the court they will be forced to request assistance from their family. This can be an emotionally painful experience as though the family is socially obligated to help cover the expense they are also free to deride the wisdom, intelligence and character of the criminal both publicly and privately. Additionally, they may require that he avoid certain behaviors in the future or not carry a weapon. It is the oversight of the family that will prevent a repeat offense.
However, a family may terminate its insurance of a member who continues to violate society’s norms by publicly declaring that they absolve themselves from any obligation regarding the individual’s future actions. In this case the person so disowned becomes an outlaw and must leave not only the jilib, but the clan as well. Essentially they become an exile and must find another clan willing to insure them or no one will enter into any business with them.
5. Verdicts (gar)
There is no system of precedent in the Somali court system. Each verdict is seen only as relating the substance of the law to the particular case at hand. The law itself is seen as coming from the customs and practices of the people themselves.
6. Legal Doctrines
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 judgments on any issue.
That covers the broad framework of both Somali customary law and a functioning anarchist legal system. Obviously, there are more details but they are easily worked out when presented with a specific set of circumstances. This case study of Somalia as a funtioning anarchy is far from done, though. In addition to further exploring the concepts in the these first few posts we’ll be sharing some real-world information about how Somali society is not only surviving, but flourishing now that the yoke of government has been removed from their collective shoulders.