The Somalis have no state, no prisons, no taxes, no standing army, and no full-time police or full-time judges, yet they have a system of law that preserves the peace, settles disputes, and provides compensation to the families of victims.
Somali law is based on the traditions and clan structure of the Somali people. It is not legislated by politicians or imposed by a ruling class. No district attorney brings charges on behalf of the state; all cases are initiated by people with grievances. There are no victimless crimes. The parties to a dispute select their own judges. The judges convene a court, listen to testimony from both sides in accordance with an elaborate system of procedural rules, and render their verdict. The decisions of the judges are respected by all and are enforced by the guilty party’s own clan.
Michael van Notten was a practicing lawyer from the Netherlands and a long-time libertarian activist who married a Somali woman and spent the last 12 years of his life learning the customs of the Somali people and studying their system of law. He was working on this book when he died of a heart condition in 2002 at the age of 68. Spencer MacCallum, a social anthropologist and authority on community organization, inherited van Notten’s manuscript and did an admirable job of editing it and supplementing it to produce this book.
The book carefully defines terms such as natural law, customary law, and statutory law, as well as some relevant Somali words. Then it explains how the Somali system of customary law works, what are its strengths and weaknesses, and how, barring outside intervention, it could evolve into a truly libertarian system of law.
Somali law emphasizes compensation rather than punishment. When someone is found guilty of harming someone else, the guilty party’s family is asked to compensate the family of the victim. Chapter 6 lists some of the traditional compensations for inflicting permanent bodily damage. For example, 36 camels for loss of an ear; 50 camels for loss of an eye, nose, or tongue. The compensations are doubled if the damage was inflicted intentionally. For murder the compensation is 100 camels if the victim was a man, 50 for a woman, 30 for a boy, and 15 for a girl. Such compensations seem ridiculous to people from other cultures, proving that customary law is not the same as natural law. Natural law is universal, it applies to every society regardless of culture, because it is based on the common reason of mankind rather than local customs. However, the Somali compensations are not completely arbitrary in as much as they have a basis in the Somali culture. They are arbitrary only in the sense that they are not based on reason. Compensation being measured in camels shows how culturally relativistic all compensation actually is and must be. No set of punishments or compensations can be proven by reason to be objectively correct. [I made this point to Michael van Notten in an e-mail message when I reviewed an early draft of this book. He replied, “Thanks for your comments on my Somali customary law piece. I fully agree with your remark that no set of fines can be proven by reason to be objectively correct.”]
In spite of the arbitrary nature of any system of compensations, and in spite of how ridiculous it might look to an American to use camels as the unit of measure, and in spite of the injustice of compensating the victim’s family instead of the victim, and in spite of the unfairness the offender's family rather than the offender having to pay the compensation, and in spite of the unfairness of ranking men twice as valuable as women, and in spite of a few other things, the customary law of the Somalis is closer to natural law than are most, if not all, systems of legislated law. Even if there is no rational way to determine what compensation is appropriate for any particular offense, at least the awards for violating Somali laws are proportional to the natural rights violated. This is not true of systems of legislated laws, because most of the laws under those systems impose punishments for victimless crimes that violate no one’s natural rights. Unlike Somali law, systems of legislated law in order to permit levying of taxes, countenance a major exception to the general rule against theft. Somali law strictly forbids taxation. Unlike systems of legislated law, the Somali law forbids very little that is allowed by natural law. With but one exception, compansable acts under Somali law are crimes or unintentional violations of someone's natural rights. The exception is the law against insulting a respectable person.
Other advantages of Somali law are that it: “is immune to political manipulation,” “prevents political rule,” “develops in harmony with the values commonly held in the nation,” “is usually applied promptly,” “is effective in preventing crime,” “can be maintained at a very low cost,” “is highly respected by the Somalis,” “has resisted many efforts to abolish it,” and “interferes little with the market mechanism.”
If the law of the Somalis is so much better than the laws of most other countries, why aren’t the Somali people more prosperous? Although their law generally respects private property and supports free trade and does not support tariffs, taxes, or business regulations, it inhibits prosperity in a number of ways. It discourages capital accumulation and investment, prohibits the sale of land to people outside the clan, fails to deal with fraud, and offers little protection to foreigners as such (they must first become a part of the system by allying with a clan in a recognized client relationship). If a Somali transacts a profitable business deal he is expected to share his profits with his extended family. “If there is still money left after that, community projects such as the construction of a mosque or a school will claim a share. If after that there is till something left and its owner wants to lend it to someone, he is not permitted to charge interest.” So capital investment is discouraged and economic progress stifled.
For the Somalis to rise out of third-world poverty they need to encourage foreign investment. This book offers a solution based on a suggestion by a Somali—create a “White Somali” clan in a freeport in the Horn of Africa. Appendix C, “Proposed Membership Agreement for a Freeport-Clan,” co-written by Michael van Notten and Spencer MacCallum, combines the best features of Somali customary law, with Michael van Notten’s ideas on natural rights and procedural rules for protecting them, and Spencer MacCallum’s work on a land-lease based freeport. The result comes as close as anything I have seen to establishing the framework for a civil society consistent with liberty, prosperity, and natural rights. The lease contract provides a way to specify how rights are to be enforced by competing, free-market, police, courts, and insurance enterprises. The idea of incorporating a description of natural rights into the master lease for a land-lease community is brilliant. It satisfies both the strong natural rights advocates like me, for whom respecting natural rights is a moral obligation anyway, and the skeptics who believe rights are created by contracts.
Year Read: 2006
Libertarian Essays by Roy Halliday
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