The Law According To The Somalis

November 16th, 2011   Submitted by Davi Barker

Many voluntaryists have looked longingly toward Somalia for evidence of our ideas in practice. But it’s a little tough when that real-world example also happens to be the quintessential image of extreme poverty and feuding warlords for most people.

Nonetheless, sometimes an article appears that rightly points out that comparing Somalia to developed nations is a little intellectually dishonest. In fact, Somalia has improved by virtually every measure of standard of living without a state, or when compared to its neighbors that still have a state.

Even the BBC grudgingly admitted that 20 Years of Anarchy had spurred economic growth, especially in the telecommunications sector.

Michael van Notten’s book The Law of the Somalis describes Somalia’s stateless legal tradition, which he calls “kritarchy.”[1] As Africa explodes into populist movements demanding Western-style democracy, I’d like to argue, as van Notten did, that a superior indigenous alternative is nestled right in their backyard.

Somalia is not stateless by accident, as is the conventional view. The Somali people consciously rejected democracy and central government, and with good reason. Prior to the colonial period almost all African nations were polycentric tribal anarchies, which practiced a system of customary law.

The Somalis never accepted the legal systems of the colonial powers and largely ignored them or tried to nullify them by noncompliance, preferring always the social software of their own design. In 1991 the Republic of Somalia collapsed, but rather than electing a new leader, Somalis simply allowed their indigenous customary law to become the unopposed law of the land, which did not include any central government.

No discussion of Somalia can occur without addressing the political violence in and around the city of Mogadishu. So why Mogadishu? Well, that’s where the defunct politicians of the old republic, now known as “warlords,” are attempting to reestablish a central government in the old capital.

The United States and the United Nations believe that a central government is necessary to bring Somalia into, “the family of democratic nations,” and they have spent billions of dollars on state-building efforts, which only perpetuate the violence. Essentially, there is a huge pool of free money for whichever warlord can convincingly claim to be the central government of Somalia, but the people persistently resist all such claims. So warlords must use brute force, against both the people and each other, if they want the slush fund. Were it not for this there would be little incentive for civil war.

Van Notten speculates that the reason the US and UN do this is ideological, and fundamentally rooted in their fear that if Somalia were allowed to succeed, its system of stateless law could be viewed as a viable alternative to democracy and be spread elsewhere.

Why are the Somali people consistently unimpressed with Western political systems?

To answer that, we’ve got to define four sources of law that Van Notten identifies in the book: natural law, contract law, statutory law, and customary law. Natural law is the voluntary primordial order of all human societies, which coevolved with human nature. It is the invisible hand behind the entire human ecosystem. Natural law can be discovered and described, but it cannot be amended by human ambitions. A natural right is one that can be universalized to all human beings and exercised without permission and without infringing on the rights of others — namely, these are the rights to life, liberty, and property. Put simply, don’t hurt people and don’t take their stuff.

Contract law simply means to keep your agreements. A contract is valid when it is voluntarily entered and does not violate the rights of any third party.

Statutory laws are rules written by rulers and enforced through threats of violence, usually by a standing police force.

Customary law may be an unfamiliar concept, but once you learn to see it, you’ll see it everywhere. Like natural law, it emerges spontaneously from people’s voluntary interactions. Think of it like this: the laws of chemistry or physics are eternal, but the sciences of those disciplines are constantly evolving. Such is the relationship of natural law to customary law. Natural law is eternal, while customary law is the discipline of refining our understanding of it.

Natural law can only be pursued in ways consistent with itself, just as inconsistency disproves a law in science. In that sense, fraudulent contracts, barbaric customs, and oppressive statutes cannot be rightfully regarded as laws at all, just rules.

The Somalis are not ignorant of these concepts. In fact, life, liberty, property, and the four divisions of law all have words in their language that were not borrowed from other languages, indicating that these concepts are as indigenous to them as they are to English speakers. It was no historical accident that they developed a voluntary legal structure. Almost every Somali child is thoroughly educated in the customary law by the age of seven. Even an illiterate nomad understands life, liberty, and property, and regards himself as subject to no authority except God.

The Somali people strongly reject statutory systems like democracy because they render everyone subservient to political officials. They oppose dividing society into the rulers and the ruled. Democracy is often presented as “government by consent,” but in any statutory regime, someone claims the authority to rule over those who don’t consent. The inability to opt out by nonparticipation or secession renders the whole concept of consent meaningless. There can be no natural right to elect a “representative” to do what you have no natural right to do yourself.

Further, the idea that rulers could write new laws would strike the Somali people as obscene, because in their view the law is preexistent.

They cherish natural rights like the right to self defense by private arms, to practice law, to travel, to freely contract, to educate children, and to trade in open markets; in statutory systems all of these are reduced to privileges requiring licenses. In natural law, one is free to engage in all of these activities without asking permission, and every license is an infringement on that right. In order to protect natural rights, statutory law must first violate natural rights; whereas customary law is designed to protect natural rights in ways that approximate natural law. In this sense, statutory democracy itself is incompatible with natural law.

So what is kritarchy? How does Somali customary law work?

The term “kritarchy” comes from the Greek terms kritès (judge) and archè (principle) and describes a social order where justice is the ruling principle. It’s tempting to think of it as “rule by judges,” but that’s not really accurate. In a kritarchy, judges have no special powers and only hold their position by the consent of others. And there are no rules prohibiting anyone from serving as a judge. Disputing parties may choose anyone who has a good reputation, and it often happens that a clan has many judges. But a Somali judge only enforces the customary law, which is natural law as he understands it.

Traditional Somali society is decentralized, similar to the Internet. There is no executive or legislature. There is only a set of familiar protocols shared by a network of independent individuals organized into clans.

Now, you might think that a clan must have a chief who is the final arbiter in all matters. This is simply not the case. In fact most Somali clans have origin stories about a distant past when their elders appointed a clan chief, but he was so oppressive or incompetent that they abolished the position and agreed never to appoint another.

Individuals are in no way obligated to their clan. Dissenters are never forced to participate in any clan activity, and individuals are free to leave their clan and either join another or form their own. There is no coercive hierarchy within the clan. Antisocial behavior only leads to social ostracism. If force must be used, it is never to destroy persons or property but only to halt aggression.

The legal apparatus only comes into effect when there has been a violation of rights, as in personal injury or damage to property. All justice is restorative, not punitive. So if there is no victim there is no crime. Somali law requires only that victims be compensated for violations of their life, liberty, and property.

A law court is formed when a conflict requires a third party to resolve it. If the disputants are from the same clan they may go to the same judge, but if they are from different clans judges from each family form a law court together. Judges are tasked with investigating the conflict and discovering a resolution that most satisfies the reason and conscience of both parties, not with rendering a verdict consistent with the precedents of other courts.

If the defendant is found to be at fault, compensation is owed to the victim for the damage caused. Somalis view humiliating or punishing a wrongdoer as a waste of time and resources, except that an additional fine may be awarded to the victim if the violation was intentional. The task of deterrence or rehabilitation is left to the clan of the wrongdoer, because they are ultimately liable for him.

So in the case of injury, the wrongdoer may be obliged to provide medical care as the victim recovers. In the case of theft, the stolen property must be returned and the victim compensated for their trouble. In the case of property damage, the property must be repaired or replaced. Although it is rare, in the case of homicide a murderer may be executed, but more often the bereaved family will agree to compensation, which is called the “blood price.” It is always up to the victim, not the judge, to decide to what extent to enforce the verdict.

All cases are widely discussed in the community, and if there is a consensus that the judge is not performing to the people’s satisfaction he may lose the confidence of his clan, and he will likely not be asked to settle future conflicts. In this way, judges are always subject to open competition.

Should enforcement be necessary within one clan, the court may request that able-bodied men in the community volunteer as a temporary police force, but there are no standing police. They may only use the minimum force necessary to right what was wronged. However, if the conflict was between multiple clans, one clan has no power to enforce its verdict on another. Penalties can be imposed for refusing to comply with a verdict, but clans are expected to police their own, and there are mechanisms in place to incentivize this.

Every clan maintains a communal fund that members voluntarily contribute to. This fund operates as a kind of social insurance for every Somali against liability. It can be used both to provide welfare for clan members who fall on hard times and as venture capital for businessmen to borrow and invest. If a person owes restitution that they cannot afford to pay, they must approach their clan to have their liability covered by this insurance fund.

This can be painfully embarrassing, and it gives the clan an opportunity to chastise the person, but it also insures that victims can always be made whole. In the case of conflict between multiple clans, this allows the clan of the victim to seek restitution from the insurance fund of the clan of the wrongdoer, which incentivizes clans to police their own. If habitual violators of the law become a drain on the clan’s insurance fund they may have their membership terminated, making them an outlaw with no protection from any court.

In principle, this description of the kritarchy in Somalia will seem very familiar to any student of natural law. However, in practice some of the customs which have evolved are so unique to their cultural and historical context that they seem utterly foreign.

Some customs are also stifling to economic development, which may explain why growth has been slower than we might predict in a stateless society. For example, customary law has been very reluctant to extend property rights to land. Instead land is owned by the clan, and an elaborate system of land-use customs have developed. This makes a kind of sense for a nomadic pastoral society, but for the development of modern infrastructure, land ownership is key.

In addition, foreigners have no protection in the Somali legal system (unless they are accepted by a host clan), and they are completely prohibited from owning land. The logic behind this is that they are not insured against liability the way clan members are; but discouraging foreign trade has stifled both economic growth and cultural cross-pollination.

Other customs are utterly barbaric by modern standards. Some clans use very primitive physical punishment for delinquent youth, as in tying them to a tree covered with honey and allowing them to be bitten by ants. The worst practices described in the book are those impacting women. In one case a verdict against a rapist obliged him to marry the woman he raped, the logic being that the damage he’d caused her was to spoil her marriageability. Some of these customs are so incredibly backward that they can only be understood with the detachment of an anthropologist, which van Notten provides.

Obviously, these customs have no place in natural law. It is incredibly important to understand that Somalia’s customary law is not being presented as a panacea, but that the elegant legal structure of kritarchy and its potential compatibility with natural law is a superior foundation for future development than is democracy.

To understand this point, imagine for a moment that customs like these were enshrined in the statutes of a democratic system. History shows us that social change precedes political change, and forcing the political apparatus to reflect social change is a slow process requiring mass movements, civil disobedience, and even civil war.

Customary law, on the other hand, evolves literally simultaneously with social change. It consists of the rules that judges discern from the normative behavior of living people. If social change occurs gradually, custom will change gradually; and if social change occurs suddenly, custom will change suddenly — because custom is changed by voluntary acceptance, not by democratic process.

Kritarchy can only exist in societies where the custom of seeking justice is stronger than the custom of achieving political goals through coercion. For democracy the opposite is true. For that reason, kritarchy is eminently suited to protect natural rights.

Kritarchy in Somalia challenges the conventional view that tribal societies had no concept of property and contract, because even without a central government Somalia has since time immemorial engaged in free trade, where prices are determined by market forces, and competition prevented the emergence of monopolies.

The Somalis have demonstrated that providing justice in the free market is at least possible, and that you don’t need to pass statutes prohibiting murder and theft, because those laws already exist, whether you write them down or not. In short, they have demonstrated that life, liberty, and property are inscribed upon the hearts of mankind, like fingerprints in the clay of Adam.


[1] Editor’s Note: Michael van Notten. The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa. Edited by Spencer Heath McCallum (Red Sea Press, 2005). The book was published before the international intervention of 2006, which propped up the Somali central government for a few years.

24 Responses to “The Law According To The Somalis”

  1. Seth KingNo Gravatar says:

    Thank you very much for explaining why “warlords” are so prevalent in Somalia. I am thoroughly convinced that when the United States finally lays an egg, that the mass oppression and violence that happens throughout the rest of the world will dramatically decrease. The global war on drugs, the propping up and incentivizing of dictatorships, the constant devaluation of the world’s reserve currency, and the subsidizing and welfarism of foodstuffs to name just a few, have wreaked havoc on humanity’s peace, prosperity, and progress.

  2. It's MeNo Gravatar says:

    Good reading. This part gives me pause:

    “Although it is rare, in the case of homicide a murderer may be executed, but more often the bereaved family will agree to compensation, which is called the “blood price.” It is always up to the victim, not the judge, to decide to what extent to enforce the verdict.”

    Compensation makes sense to me. Killing someone for killing another person to me seems like revenge and not justice.

    Regardless, the problem is how does the system solve the problem if the system gives a wrong decision? If the person is judged guilty is killed and then afterward it is found out they were innocent (as governments and other systems are prone to do) what happens then? Logically the judge who determined the now-innocent man was guilty should be killed. Also if the original victim(s) were the one who killed the now-innocent man, they also should be killed.

    I’m still thinking through everything, but still seems physical punishment/killing isn’t justice.

    • MikeNo Gravatar says:

      Indeed, the system of wer and bot that existed in Anglo-saxon England is very similar as well. You answered your own question, though, I think. Since the sanction for a wrongful retaliatory killing is grave(open blood-fued in the Saxon case), then it is a rare event.

    • Davi BarkerNo Gravatar says:

      I agree. I’m not a big fan of the death penalty. The book didn’t spend a lot of time on occurrences of executions. Instead it focused an various clan’s customs on the “blood price.” But there’s no reason the Somali customs should be mirrored in any other kritarchy, so fundamentally it’s the same as the barbaric rulings on rape. Is it easier for us to change the prevailing attitudes toward the death penalty of the people around us (which is fundamentally what you are already doing by commenting) or to democratically change the statutes on the books about the death penalty? You don’t even have to convince that many people. In a statutory system the judge is pretty much bound to enforce the law as it’s written. But in a customary system a defendant could appeal to the judge directly to nullify a custom in his case, which would absolutely spark intense discussion in the community as to whether or not that was a good idea. And hopefully, and I believe this is the case, natural law will prevail in the permutations.

    • MAMNo Gravatar says:

      I’m a fan of Wergild. My research into shows that blood feuds where the result of not pay the Wergild but in most cases it was paid because a feud was not worth it.

  3. KathyNo Gravatar says:

    Excellent article. All of my Statist friends always throw Somalia at me as an example of anarchy. This will give me ammunition.

    • JustSayNoToStatismNo Gravatar says:

      It’s much easier to throw the rest of Africa at them as an example of statism.

      As much as it is external governments’ fault that Somalia has gotten so bad, it’s a tough sell to people who know nothing about the place. It’s much easier to say, “Oh yeah, why don’t you go live in N. Korea? They have government, and you like government.” … At which point they’ll hopefully realize how unintelligent their one line of regurgitated propaganda actually is.

  4. Mike ReidNo Gravatar says:

    The Somali clans with their pools of money seem like nonmarket equivalents of the private insurance agencies that Rothbard and Hoppe foresee in an anarchocapitalist society — except that instead of raising premiums for badly behaved individuals, they use shame and ostracism to encourage moral behavior.

    • Davi BarkerNo Gravatar says:

      Yes, that’s exactly right. In fact Van Notton pointed that out in the book when he was discussing how to establish a hypothetical free port where foreigners could engage in commerce with the Somali system. But it was to minor a point for this review. None the less, this isn’t the last thing I’ll write about Somalia, and I’ll be sure to make that point over and over in the future.

  5. Bravo! Go Somalia! You present a case tempting me to move there!:) It reminds me of the Disney movie: The Lion King. The masses chant “No King, No King…” Then those who desire to rule/dictate over others (UN/US) declare there WILL be a King… Once again we see, that the US overtly spreads war and oppression across the globe, feeling they have the right to dictate the type of government for others and to “place” leaders over them whether they like it or not. What a waste of resources!

  6. Sima QianNo Gravatar says:

    It’s Me, on blood money vs. killing, the Senchus Mor (Irish law after Christianity came to Ireland that maintained many ancient Irish customary law) had a similar system for dealing with murder. Usually the guilty party would pay the blood price for the death, and the amount paid varied based on the status of the murderer and the one murdered. Your reasoning that if judge(s) ruled an innocent man guilty, there would be a debt to be paid is reasonable; however, presumably if you and your family were unable to pay the blood price you’re probably not very high in social standing, and the blood price for your death would be relatively low, still quite a lot, but something that could almost certainly be paid by someone who the community looked to for judgment. Another judge would determine the blood price, it would be paid to your family and that would hopefully be the end of the conflict. Somalia may be different, and this system is certainly not perfect, but it did help prevent endless iterations of people killing each other. :-D

  7. This method of law seems to me to be quite common in mankind’s history. I keep thinking of the descriptions of the biblical Hebrews, and their society as described in Joshua and Judges in the Bible. This was before they chose a king. I wonder though how this would be implemented in the United States today? Getting from where we are now to a system like the one described seems to be quite the leap.

    • DocNo Gravatar says:

      We could start on the road to freedom in America by getting rid of the federal government and falling back to the several states’ governments.

      • It's MeNo Gravatar says:

        Seems to me more and more that there shouldn’t have been a “United States” at all, should have been 50 separate countries or something like that. Considering the USA’s people’s liking of using war, things are going to get a lot worse as the US population increased through time.

  8. Read The Anti-Federalist Papers. The founders knew there was a very real possibility of what has happened. They were right.

  9. MaaikNo Gravatar says:

    Thanks a lot for this insightful review. I was recently amazed by the power of poetry in Somali culture (http://likembe.blogspot.com/2010/08/somali-songs-of-new-era.html  ). My curiosity led me to reading more about Somalia and my amazement changed into admiration for that country and its people about whom the mainstream media never reports anything but the devastating consequences of the civil war. I have by now a few Somali friends and I sent this article to one of them, with request for comments. Here is what he wrote back:

    I haven’t read the book yet but I’ve heard and read about it. This is by far the most interesting review I’m aware of and it prompts me to get the book asap. I’m supposedly “thoroughly educated in the customary law by the age of seven” but, as I grew up in a city, I’d admit I still have a lot to learn about our Xeer (customary law). A few comments:

    1.Warlords: The points raised in the review are all valid. However, one of the major reasons they want to perpetuate the civil war is imo because they ARE afraid of the punishment the Xeer would impose on them. Death sentence is rarely practiced in Xeer and one of the prominent exceptions is when one is guilty of mass murder – which surely is the case for any warlord.
    2.“Even an illiterate nomad understands life, liberty, and property, and regards himself as subject to no authority except God”. In Somali culture, authority should be earned through knowledge/wisdom, good deeds, examplary behaviour etc and nybody’s authority, including God’s, is inferior to the customs of the clan/society. In fact, a Somali proverb says “Diinta waa labaddali karaa, xeer se lama baddali karo”(You can change your [individual] religion but you cannot change the [collective] law). Exit God… 3.“there are no rules prohibiting anyone from serving as a judge”. There are! Politicians and religious leaders are explicitly forbidden from serving as a judge. Otherwise, they may attempt to paint the law in their own colours. Xeer is also characterized by a seperation of powers that’s broader and centuries older than e.g. the Western seperation of church and state… 4.“Individuals are in no way obligated to their clan”. Technically true, but thye’re expected to respect the customs and Xeer, participate in the compensatory insurance process… Failing to do so would eventually lead to expulsion from the clan.
    5.From the middle ages on, Somalia has often been invaded by foreign powers and that’s probably why we’re wary of letting foreigners “own land”. On the other hand “foreign trade” is generally accepted in the countryside and even encouraged in the urban areas. “Cultural cross-pollination” is imo why Somalis come in all the colours of the spectrum, but maybe we naturally tend to flirt with those who are culturally and geographically closer to us – just like Arabs, Europeans, Extraterrestrials etc. do, I supoose. I think “stifled economic growth” is not a raison d’être as such, but the intranisgent nomadic life demands to be satisfied with the minimum and hardly allows for individual greed.
    6.“… tying them to a tree covered with honey…” This kind of bodily punishments are ordered by Xeer courts when a defendant is repeatedly found guilty of subjecting harsh physical torture to defenselss people OR animals; kind of a taste of your own medecine.
    7.“In one case a verdict against a rapist obliged him to marry the woman he raped…”. Barbaric verdict, indeed! Some girls accept it as they’re afraid of remaining single all their life, especially when illegitimate pregnancy ensues. The verdict is, nevertheless, null and void if she rejects it.

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