Dec 102007
 
Part of the Anarchy Case Studies Series - Previous in series         

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”-

  1. Rules of conduct in society
  2. Courts and Police
  3. Procedural rules
  4. Rules of insurance
  5. Verdicts of the law courts
  6. 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:

  1. These rules have been established directly by the society itself through the methods outlined in my previous post.
  2. 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.

Part of the Anarchy Case Studies Series - Previous in series        
Nov 122007
 
Part of the Anarchy Case Studies Series - Previous in series         Next in series

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-

  1. Six major principles
  2. Rules of conduct in society
  3. Organizations that adjudicate and enforce the rules
  4. Procedural rules
  5. Rules of insurance
  6. Verdicts of the law courts
  7. 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) –

  1. The law is separate from politics and religion
  2. The law has a built-in method for its development
  3. There is a plurality of jurisdictions and norms
  4. Government personnel must abide by the law
  5. The law originates in the reason and conscience of the community
  6. 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 proverbs

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-

  1. family matters (those relating to marriage and inheritance) are often settledusing Koranic law, and
  2. 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!



Part of the Anarchy Case Studies Series - Previous in series        Next in series
Oct 122007
 
Part of the Anarchy Case Studies Series - Previous in series         Next in series

I’ve been working on a case study of the anarchist “state” of Somalia for a couple of months now. But have been unable to work it all into a cohesive whole. There’s just too much data from too many sources to water it all down to a single post. At the same time, I don’t want to just give you a bunch of links to academic papers that are difficult to sift through. If you wanted to read those papers you likely already would have done so. It’s my “job” to make you interested enough to read (or at least skim) them for yourself by giving you the highlights. So, in the intereste of actually moving things forward I’ve decided to break up the case study of Somalia’s current, ongoing, anarchy into several large “chunks” focusing on different areas. How many? I have no idea. But everything’s gotta start somewhere, so I’m going to start with a brief history of Somalia-

Egyptians, Romans, and Byzantines all traded on the Somali coast, but it wasn’t until the construction of the Suez Canal (opened in 1869) that Somalis had much contact with Europeans. Shortly thereafter, France, Italy, England, and Ethiopia all occupied parts of Somali territory, though they failed to penetrate the rural areas where nomads continued their daily life undisturbed by foreign influences.

In 1947, the United Nations arbitrarily split the Somali nation into five separate countries overseen by Italy, France, Britain, Ethiopia and Kenya. As an aside, isn’t it ironic that an organization called the United Nations was busy splitting up countries? In 1960, former British and Italian Somaliland were consolidated into the Republic of Somalia, which is the “state” generally referred to as Somalia today. In 1969, Brigadier General Mohamed Siad Barre overthrew the Republic of Somalia and established a Marxist dictatorship and Soviet client state, which he renamed the Democratic Republic of Somalia.

In 1978 Siad Barre declared war on Ethiopia. The Soviets backed Ethiopia, whereupon Barre became pro-Western. Barre lost the war, and his credibility with Somali citizens, causing rebellion to break out in the north. In the late 1980s a series of attacks in Berbera led to a government massacre of 30,000 civilians. In 1991 Siad Barre’s administration collapsed, and the government was dismantled. Clan fighting and widespread famine ensued, leading the United Nations to return, occupying the country and attempting to install a “democratic” government (as if democracy can be forced upon a people). In 1995 the UN finally acknowledged the will of the Somali people and withdrew leaving no formal government in place.

Instead of a government, the 11.5 million Somalis have returned to the customary laws of their ancestors, the Xeer. I will go into a lot of details about the Xeer in future posts, but here are some basics-

  1. 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.*
  2. 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.**
  3. 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.*

———-

* MacCallum, Spencer Heath – The Rule of Law without the State

** 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.

Part of the Anarchy Case Studies Series - Previous in series        Next in series
Sep 152007
 
Part of the Anarchy Case Studies Series -         Next in series

The biggest problem with proselytizing about anarchy is that so many people insist that it’s simply impossible. Of course, this assertion comes from a combination of ignorance and years of government indoctrination, but I’ve been unable to combat it in the past. So I’m undertaking a series of case studies to prove that not only can anarchy work, but that it has worked.

The first anarchistic society I’ll be sharing here is one near to me both philosophically and geographically: the Yurok Tribe of Northern California. While not what I’d call an anarchist utopia, they had no governing body of any sort before the Europeans arrived and invaded their territory. The following entails pretty much the bulk of their “legal system”-

  1. All rights, claims, possessions, and privileges are individual and personal, and all wrongs are against individuals. There is no offense against the community, no duty owing it, no right or power of any sort inhering in it.
  2. There is no punishment, because a political state or social unit that might punish does not exist, and because punishment by any individual would constitute a new offense which might be morally justified but would expose to a new and unweakend liability. An act of revenge therefore causes two liabilities to lie where one lay before.
  3. Every possession and privilege, and every injury and offense, can be exactly valued in terms of property.
  4. There is no distinction between material and nonmaterial ownership, right, or damage, nor between property rights in persons and in things.
  5. Every invasion of privilege or property must be exactly compensated.
  6. Intent or ignorance, malice or negligence, are never a factor. The fact and amount of damage are alone considered. The psychological attitude is as if intent were always involved.
  7. Directness or indirectness of cause of damage is not considered, except in so far as a direct cause has precedence over an indirect one. If the agent who is directly responsible can not satisfactorily be made amenable, liability automatically attaches to the next agent or instrument in the chain of causality, and so on indefinitely.
  8. Settlement of compensation due is arrived at by negotiation of the parties interested or their representatives, and by them alone.
  9. When compensation has been agreed upon and accepted for a claim, this claim is irrevocably and totally extinguished. Even the harboring of a sentiment of injury is thereafter improper, and if such sentiment can be indirectly connected with the commission of an injury, it establishes a valid counter-liability. The known cherishing of resentment will even be alleged as prima facie evidence of responsibility in case an an injury of indeterminable personal agency is suffered.
  10. Sex, age, nationality, or record of previous wrongs or damage inflicted or suffered do not in any way modify or diminish liability.
  11. Property either possesses a value fixed by custom, or can be valued by consideration of payments made for it in previous changes of ownership. Persons possess valuations that differ, and the valuation of the same nonmaterial property or privilege varies, according to the rating of the person owning it. The rating of persons depends partly upon the amount of property which they possess, partly upon the values which have previously passed in transfers or compensations concerning themselves or their ancestors.

Source – Handbook of the Indians of California (Bulletin (Smithsonian Institution. Bureau of American Ethnology), 78.)

Part of the Anarchy Case Studies Series -        Next in series

The Complete Anarchy Case Studies Series-