Anarchy and the Law of the Somalis

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“I
don’t think there are any warlords in Somalia. There are war leaders,
or militia leaders, in various parts of Somalia. People who defend
their homes often organize militias; it is done in places as genteel
as Switzerland, Texas, and Israel. You find that the mainstream
media tends to call the leaders of these militia ‘officers’
in countries other than Somalia. Very often, the elders of a community
choose a war leader or officer, and he chooses his lieutenants and
subordinates. He provides leadership, until the crisis is past or
until another officer is chosen to replace him, or until he dies.
Calling him a warlord and calling his lieutenants ‘henchmen’
doesn’t further a discussion of these issues.”

~ Jim Davidson,
Awdal Roads Company, Awdal Province, Somaliland, 2001.1

In July of
2001, after completing ROTC Basic Camp at Fort Knox, Kentucky, I
refused to contract with the United States Army. When Major Hall,
my company commander, asked me why I had decided not to pursue a
commission as an officer, I told him that I was an anarchist, and
that I could not in good conscience take a loyalty oath to fight
on behalf of the United States government. I thanked the major for
the infantry training and was on my way home the next day.

In September
of 2007, I was asked by my legal practice skills professor to complete
a questionnaire explaining what I expected from law school, why
I wanted to study law, and what I hoped to accomplish with a legal
education. I replied that I wanted to learn what I could about the
history of the common law and the modern legal process. As for my
goals after legal education, I answered to the effect that I hoped
to aid in the emergence of a modern polycentric legal order2
where private insurance companies, arbitration firms, and security
agencies would function in place of the present monopoly justice
and security structures administered by the state.

The provision
of dispute resolution services and security services by market means
is not a radically new idea. With regards to theoretical arguments
for market, rather than political, provision of dispute resolution
and security services, Gustave de Molinari argued in 1849:

“This
option the consumer retains of being able to buy security wherever
he pleases brings about a constant emulation among all the producers,
each producer striving to maintain or augment his clientele with
the attraction of cheapness or of faster, more complete and better
justice. If, on the contrary, the consumer is not free to buy
security wherever he pleases, you forthwith see open up a large
profession dedicated to arbitrariness and bad management. Justice
becomes slow and costly, the police vexatious, individual liberty
is no longer respected, the price of security is abusively inflated
and inequitably apportioned, according to the power and influence
of this or that class of consumers. The protectors engage in bitter
struggles to wrest customers from one another. In a word, all
the abuses inherent in monopoly or in communism crop up.”3

A number of
radical libertarian writers in recent years have expanded on Molinari’s
thesis, posing sophisticated arguments for a free market in justice
and defense.4
However, there is plenty of evidence to demonstrate that people
have been privately going about their own dispute resolution business
for thousands of years. One strong indicator of this tendency is
the fact that the government rulers who have long fought to monopolize
the provision of binding dispute resolution have for hundreds, if
not thousands, of years threatened criminal penalties against crime
victims who independently endeavored to secure recompense from an
offender. Rothbard recounts that,

“in
the Middle Ages generally, restitution to the victim was the dominant
concept of punishment; only as the State grew more powerful did
the governmental authorities encroach ever more into the repayment
process, increasingly confiscating a greater proportion of the
criminal’s property for themselves, and leaving less and less
to the unfortunate victim.”5

As time went
on, the king sought to protect his court revenues. Benson describes
the development in English law:

“[R]oyal
law imposed coercive rules declaring that the victim was a criminal
if he obtained restitution before he brought the offender before
a king’s justice where the king could get his profits. This was
not a strong enough inducement, so royal law created the crime
of ‘theftbote,’ making it a misdemeanor for a victim
to accept the return of stolen property or to make other arrangements
with a felon in exchange for an agreement not to prosecute.”6

Theftbote
has evolved into what is now referred to as “compounding a
crime,” which is committed when a crime victim accepts restitution
in lieu of punishment. As Barnett explains, “In the quest to
punish criminals, whether for retributivist motivations or to protect
the public, crime victims become mere means to the ends of the institutions
created to punish.”7
If one takes the purpose of the criminal justice system to be the
deterrence of wrongful acts and protection of victims, it is strange
indeed that the very system which is supposed to offer hope for
relief would instead create new obstacles to the righting of wrongs.
However, this development should come as no surprise to those who
remember that criminal law came into its own as a means of fattening
the king’s coffers, not as a bulwark against predation by the
unjust.8

Because I
recognize that government courts serve primarily to advance the
interests of government power, my goal as an aspiring attorney is
to use what I can from my legal education to work against the State
– to oppose government action where private, voluntary action
would better serve the interests of justice. It is the subsequent
question – “How can private actors be entrusted with the
provision of public goods like defense and justice?” –
that makes a book like The
Law of the Somalis
important.

Van Notten,
a Dutch lawyer, lived with the Somali people and applied his legal
expertise to learning and understanding the Xeer, the traditional
Somali legal system that has developed over thousands of years.
The Xeer is remarkable because it is not dependent on a central
government authority, but instead relies on familial, economic,
and cultural pressures to insure that justice is done. While the
details of the system leave some things to be desired – equal
rights for women and greater alienability of property outside of
the clan, for starters – it is based on core principles which
are admirable and reasonable:

  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 Law9

These core
principles are admirable enough, and familiar to those already acquainted
with American law: The first protects the elevated place of rational
discourse in judicial decision-making. The second hearkens to the
English Common Law, which too provides for its own development.
The sixth recognizes that judging legal disputes is rightfully a
specialized vocation deserving of professional experts in the law.

However, number
three’s legal plurality is somewhat alien to those accustomed
to hierarchical, monolithic legal systems. Likewise, number four
conflicts with the English concept of sovereign immunity, where
as a matter of policy certain state actors are shielded from liability
that would, save their position of favor with the state, otherwise
leave them vulnerable to remedial action from the courts. Number
five reminds one of the traditional English and American jury system
before the Sparf decision that deprived the petit jury of
the power to determine both law and fact,10
a power it had enjoyed since Bushell’s Case in 1670.11

The most important
role of van Notten’s book, besides offering a glimpse at the
legal culture of a distinctly independent people who have successfully
resisted centralized government authority since 1993, is to offer
one contemporary example of a legal system that is the result of
spontaneous order and not the edict of a person in power. Although
no utopian vision, van Notten provides us with proof positive that
emergent systems arise to satiate demand for solutions to even complex
social problems like inter-cultural dispute resolution.

Now it is
left to experts in law and security to work to craft market mechanisms,12 to
render obsolete the inexpedient government models that cost too
much in terms of both dollars and individual liberty. In the meantime,
I plan to apply my convictions as a criminal defense attorney who
is uniquely qualified to vigorously represent any client, no matter
how deserving of disdain. Imprisonment is at worst criminal and
at least counterproductive. Even where a criminal defendant is guilty
of wrongdoing, imprisonment frustrates efforts by victims seeking
restitution. Slaves, even slaves whose enslavement falls within
the Thirteenth Amendment exception “as a punishment for crime
where of the party shall have been duly convicted,” tend to
be slow earners, and so less capable of making their victims whole.
And again, curing the damage caused to the victims is supposed to
be the aim of the whole exercise. As a criminal defense attorney,
I can rest assured that my opponent will always be the state, and
thus that my cause will always be just, whether my client is innocent
or guilty of the crime charged. More than that, though, working
to put less-than-innocent people on the street gives victims a better
shot at actually securing restitution.

Notes

1
Davidson, James. “Somalia
and Anarchy
.” Formulations. Free Nation Foundation.
Issue #30 (Summer 2001).

2
See generally, Rothbard, Murray N. The
Ethics of Liberty
. New York: New York University Press,
1998; Barnett, Randy E. The
Structure of Liberty
. New York: Oxford University Press,
1998.

3
de Molinari, Gustave. “The
Production of Security
.” Journal des Economistes. February
1849. J. Huston McCulloch, trans. 1977.

4
Tannehill, Linda and Morris. The
Market for Liberty
. New York: Fox & Wilkes, 1993;
Hoppe, Hans-Hermann. Democracy:
The God That Failed
. New Brunswick, New Jersey: Transaction
Publishing, 2001; Murphy, Robert P. Chaos
Theory: Two Essays on Market Anarchy
. New York: RJ Communications,
2002.

5
Rothbard, Murray. The
Ethics of Liberty
. New York: New York University Press,
1998. p. 87.

6
Benson, Bruce. The
Enterprise of Law: Justice Without the State
. San Francisco,
California: Pacific Research Institute, 1990. p. 62.

7
Barnett, Randy E. The
Structure of Liberty
. New York: Oxford University Press,
1998. p. 236.

8
Benson, p. 52–53.

9
Van Notten, Michael. The
Law of the Somalis: A Stable Foundation for Economic Development
in the Horn of Africa
. Asmara, Eritrea: Red Sea Press,
2006. p. 34.

10
Sparf v. United States, 156 U.S. 51, 63 (U.S. 1895).

11
Parmenter, Andrew. “Nullifying the Jury: ‘The Judicial
Oligarchy’ Declares War On Jury Nullification.” Washburn
Law Journal. Vol. 46, p. 379. Winter 2007. p. 382.

12
Perhaps a “Subscription Patrol and Restitution” insurance
model, as suggested in Guillory, Gil and Patrick C. Tinsley. “The
Role of Subscription-Based Patrol and Restitution in the Future
of Liberty
.” Libertarian Papers. Vol. I. 2009.

April
28, 2009

Dick Clark
[send him mail],
a native Southerner, currently lives in exile in Boston, MA. He
is a 2L at Suffolk University Law School.

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