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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