The Law of the Somalis
This guest post comes from Mark Lutter, a free cities fan and a soon to be graduate student in economics at George Mason University. —Editor
Perhaps the most harmful misconception ever held is that of legal positivism, that rulers must conceive and enforce laws. Michael Van Notten, a Dutch lawyer who married into the Samaron clan, living with them for the last twelve years of his life, demolishes this position at the same time offering a positive prescription on how to achieve economic development under a system of customary law while still living in a statist world. In his book, Law of the Somalis, Van Notten first describes how customary law operates in Somalia. Then he contrasts it with natural law. Finally, he describes how economic development could occur within current legal environment in Somalia.
Xeer is the name of Somali law. Though the law differs depending on the clan, the overall protections of person and property are remarkably uniform. Xeer is based on the protection of property. This means that crime is also defined in terms of property. There can only be crimes against individuals, and justice is compensatory, not punitive. Everyone is also insured through their clan against liability. If one is unable to pay the compensation after wrongdoing, his kin will pay. In this way, every individual is essentially guaranteed damages against any victimization.
Xeer has well defined court structures and procedural protections to prevent wrongful incrimination. Each Juffo, the smallest unit of the Somali political life, the extended family, has its own Oday, judge. The judge is an individual carefully chosen by clan elders. If he makes unsatisfactory judgments, he will no longer be asked to judge particular cases. When an offense is committed, the victim goes to his Oday, who will approach the Oday of the aggressor. If they cannot resolve the conflict, they will create a court with additional Odays from their extended family.
The superiority of Xeer, or any customary law, is that it is immune to political machinations. Government is the single largest externality in existence; no one in government pays the full cost of their role as an aggressor. Law that successfully restricts institutionalized force to defense of property is a necessary but insufficient condition of prosperity. Said legal system must also successfully integrate into international law in order to encourage foreign capital.
After describing how Xeer works, Van Notten goes on to describe several shortcomings, the most important being the inability to sell land to anyone outside the clan. This is because of the necessity of defending the land should the clan go to war. In order to encourage foreign investment, Michael Van Notten lays out a plan to nudge Xeer in the right direction. His idea is to create a Freeport, operating under Xeer, but without its shortcomings. The lack of taxes, no regulations, and cheap labor would attract investment. The resulting expansion would incentivize Somalis to change their law to allow foreign investment, bringing forth the premier legal environment man has ever conceived.
In short, Michael Van Notten has written a fantastic book. It is an excellent introduction to customary, as opposed to statutory law. It ends with a vision of a free prosperous Somalia and a way to achieve it. If his vision is achieved, it would represent the single greatest hope for liberty in the 21st century.
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I enjoyed these comments, especially Patri’s succinct insights. But I was particularly glad that Mark Lutter brought up Van Notten’s intriguing proposal of free cities in Somalia (called “freeports” in his book, The Law of the Somalis) organized around a version of the Xeer that would be custom designed to harmonize with international law. Such a hybridized Xeer would enable the free city to deal on acceptable terms with its Somali neighbors as well as fulfilling the requirements of international commerce. This seminal idea was suggested to Van Notten by Somali elders, practitioners of the Xeer, who said, indeed, why not establish such a free city as a new Somali clan with its own customized Xeer. Van Notten was a Dutch lawyer and legal scholar, a devotee of natural law as understood by such thinkers as Frank van Dun. He had married into the Samaron Clan in Awdal, the fifth largest Somali clan, and lived among his adoptive kinsmen the last twelve years of his life, taking keen note of their law and politics. He had also become deeply involved for many years in matters of economic development. Immediately, therefore, he saw the import of what the elders were suggesting to him. He saw how the freedom offered by such a city—described in his book as a “freeport-clan”—would attract investment and entrepreneurs. The generated wealth would stimulate competition in the form of new city ventures and a rapid evolution of customary law in the rest of Somalia. In his book, he suggests in some detail how the hybridization of the Xeer might be done. The free cities would be the Somalis’ bridge to full participation in the modern world, economically, culturally, scientifically, while retaining all of the traditional values of a stateless society.
Though I haven’t read the book, Law of the Somalis, I am stunned that this can all be discussed as positive points of law considering the dangerous and chaotic state Somalia has been in for so long. I am curious how much of these aspects are addressed in this book. Is this philosophy of Xeer law only in remote villages far removed from the government and the desperate state of Somali pirates? Where is the ability to have a free state, if the consistent bloodshed, famine and political corruption are not halted? The four people killed for passing through their waters in February certainly are not being compensated in Xeer.
It only applies to people within the system, I believe. So outsiders have no rights.
This is not so unusual – the USA doesn’t compensate Iraqi civilians it kills, for example.
And your description of “consistent bloodshed” bears no resemblance to the reality on the ground – Somali pirates are a tiny part of the economy & a tiny part of the life of Somalia. It’s like describing the United States as being unfree and a place of constant horrible bloodshed because it has armies in Iraq & Afghanistan.
Patri is correct in that outsiders do not have adequate rights protections under Xeer. A major part of any free city project in Somalia would be to incorporate Xeer into the body of international law, so that it would offer rights protections for all.
The bloodshed in Somalia is currently concentrated in the south, and I believe much of the violence is attributable to the constant attempts to create a government. The northern area of Somalia, Somaliland and Puntland are both largely governed by Xeer and have levels of violence comparable to other sub Saharan African nations.
This is a paper by Ben Powell arguing that Somalia has made improvements in standard of living since the fall of the dictatorship.
Click to access 64_somalia.pdf
@ Mark and Patri,
I Read the paper you put up Mark and I found it quite interesting. So I admit to being somewhat naive in how the Media portrays the unrest in the south to be so all encompassing..But more so enlightening in this article was learning that the northern area of Somalia, Somaliland and Puntland were both largely ignored during all the 40 odd years of politico tyranny, socialism, etc, utilized more to take from versus any “enhancements.” The locals fought to stay as they were and made free markets with their trade routes and Xeer law. Each state has declared themselves independant, though this is not recognized internationally. The south, where the turmoil is centralized, is in flux because they are used to handouts by the government, as meager as those handouts were it still took away their natural desire to achieve, that is something worth studying.
Great post! There are some great papers by a Somali economist named Jamil A Mubarak (no relation to the dictator!) on the private provision of money and on Somali legal institutions. He also has a full-length treatment in ‘From Bad Policy to Chaos.’ Andre Le Sage also has a paper here (http://www.ssrnetwork.net/document_library/detail/4397/stateless-justice-in-somalia-formal-and-informal-rule-of-law-initiatives) called Stateless Justice in Somalia.
A question for the author: Somalia receives massive amounts of remittances from refugees and emigrants overseas. Do you consider this a route around foreign capital problem? I ask because my understanding is that quite a bit of the clan-warring (especially during intervention) occurs for control of the ports, which have historically been a lucrative stream of political plunder. My understanding is likewise that this discourages ‘capital intensive’ investment in a port like van Notten’s freeport.
@Zachary
Remittances are capital, however given the historical level of economic growth is less than what would be expected of an anarcho-capitalist paradise, I believe there are superior solutions. I was under the impression that warring was centered around Mogadishu, though it would not surprise me if violence was also concentrated at the ports because there exists so much surplus capital there. I prefer the free city route because it pushes Xeer toward changes that bring prosperity. Because law is the most fundamental aspect of any society, any changes to law will have the most effect on changing the society.
Great book. I drew on it heavily when I was doing my research on Somalia. FYI, here’s a popular version that summarizes some of my research.
http://www.thefreemanonline.org/featured/somalia-failed-state-economic-success/