The Law of the Somalis: A Stable Foundation for Economic Development in the Horn of Africa (Paperback)

~ (Author), Spencer Heath MacCallum (Editor)

Editorial Reviews

Product Description

This book details many striking features of Somali customary law. It is compensatory, for example, rather than punitive. Instead of being imprisoned or otherwise punished, law breakers are required to compensate their victims. A victim seldom fails to receive compensation, moreover, because every Somali is insured by near kin against his or her liabilities under the law. Being based on custom, Somali law has no need of legislation or legislators, hence is happily free of political influences. Even so, the author points out areas in the law that are in need of change. These do not require legislation, however; many desirable changes, such as ending restrictions on the sale of land and enhancing the status of women, are implicit in economic development. As for the Somali political system, not only is there no need to set up a democracy, the author clearly shows why any attempt to do so must inevitably produce chaos. This book by a trained and sympathetic observer shows how, viewed in global perspective, Somali law stands with the Latin and Medieval laws and the English common law against the statutory law that originated in continental Europe with the modern nation state. It explains many seeming anomalies about present-day Somalia and describes its prospects as well as the dangers facing it. Born in Zeist, the Netherlands, in 1933, Michael van Notten graduated from Leiden University in Law and was admitted into practice in Rotterdam. He later served with a New York law firm and directed the Institution Europaeum, a Belgium-based policy research organization. In the early 1990s, he became interested in the prospect of Somalia developing in the modern world of a stateless society, and for the next twelve years, he studied Somali customary law. A keen analyst of the intricacies of clan politics, he traveled fearlessly in war-torn Somalia. He died in Nimes, France, on June 5th, 2002

About the Author

Spencer Heath MacCallum is a social anthropologist living in Casas Grandes, Chihuahua, Mexico, where he played a central role in the economic development of the village of Mata Ortiz, now known internationally for its fine-art pottery. He has long studied the feasibility of social organization without taxation. He is the author of THE ART OF COMMUNITY and numerous journal articles.

Product Details

• Paperback: 272 pages
• Publisher: The Red Sea Press, Inc.; First Edition; First Printing edition (November 27, 2005)
• Language: English
• ISBN-10: 156902250X
• ISBN-13: 978-1569022504
• Product Dimensions: 8.1 x 5.4 x 0.9 inches
• Shipping Weight: 11.2 ounces (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (3 customer reviews)
• Amazon.com Sales Rank: #942,323 in Books (See Bestsellers in Books)

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8 of 8 people found the following review helpful:

5.0 out of 5 stars Customary Law Upholds Natural Law, May 21, 2006

By	Howard J. De Nike (San Francisco, CA United States) - See all my reviews (REAL NAME)

Students of legal anthropology learn the phrase "customary law" early in their training. But seldom is it accompanied by nuanced understanding. Law of the Somalis fundamentally alters this default. Generations of legal anthropologists working in colonial Africa devoted themselves (usually with the best intentions) to "codifying" customary law, never pausing to ask whether customary law might possess advantages wholly antithetical to "legislated" law.
The late Michael van Notten, a Dutch-educated lawyer "adopted" into Somali society, has written a "brief" (using the Somali case) on behalf of the proposition that customary law succeeds in fulfilling natural law demands for justice in ways superior to law created by systems of representative democracy. Legislated law of necessity disenfranchises the minority (who failed to elect their representatives), while customary law, because it focuses on disputes situationally, and relies on customary legal principles not unbending statutes for solutions, is better suited to respecting the interests of all sides. A major factor in van Notten's argument in favor of the Somali example is his demonstration of how customary law performs in its intensely competitive environment. In order to preserve its general acceptance, customary law must provide non-governmental means whereby people can complain if they feel their rights were violated.
The name given to this customary law system is kritarchy, that is, a system of rule distinguished from monarchy and oligarchy, by its reliance on "judging through principle." Kritarchy rests not on political institutions, but rather simply on the rule of law.
In a world where "failed-state" can be a buzzword precursor to outside intervention, issues presented by nations relying on customary law are far from academic. Van Notten's polemic is thus also timely - and far from an abstract contemplation. To the contrary, based on firsthand experience the book urges that a customary law foundation, such as found in Somalia, provides an ideal basis for establishment of a Free Port dedicated to commercial relations with the highest regard for natural law property rights. The United Nations has poured billions of dollars, thus far without evident success, into the cause of re-establishing a Somali central government, a proposition anathema to the customary law systems of Somalia's clans. Van Notten, on the other hand, sees opportunity to vindicate an approach to law consistent with older forms honoring sage leadership and counsel without the power to coerce and tax.
The readability and relative brevity of the text highly recommend Law of the Somalis for classroom use. It fits comfortably alongside, and is a refreshing addition to, the scholarly tradition reflected in such classic ethnographic legal-political titles as, Tswana Law (I. Schapera), The Cheyenne Way (K. Llewellyn and E.A. Hoebel), and The Judicial Process among the Barotse (M. Gluckman).
Howard J. De Nike, J.D., Ph.D., Instructor, Anthropology Department, University of New Mexico, Albuquerque, NM.

7 of 7 people found the following review helpful:

5.0 out of 5 stars Success without central ruling authority, April 25, 2006

By	H. C. George (Fairhope, Alabama) - See all my reviews (REAL NAME)

This book deserves the full five stars because it demonstrates dynamically that sustenance and better, and freedom, order and peace, are fully possible in a system of local, family/clan, traditional governance in its multiple manifestations over a fairly wide territory without the "assistance" or burden of a centralized ruler controlling any and all aspects of the economy, society or life of the citizenry or its institutions. And it does so in a readily accessible manner in the writing style and cogent illustrations of the customary law as applied. This pertains to the principal author, the editor and one other contributor.

The justice system in northern Somalia, Somaliland, works as a common law, less formal than the English common law, but formalized in its procedures and precedents. It uses (by retainer) recognized judges or arbiters who receive apprentice-like training, experience on the job, and are selected on the basis of reputation for a track record of wise rulings. This pertains in civil and in criminal matters.

The greatest flaw in the rules, not in the system, is the lack of absolute property rights. Common grazing ground has fairly comprehensive rules as to how it may be used, thus avoiding the tragedy of the commons. But it can't be sold which is a considerable constraint on achieving prosperity. Individually owned real property has similar restraints; it can be sold only within the clan. This also constrains prosperity.

Somaliland does immensely better that the southern regions of Somalia where repeated efforts to reestablish central government, and the fear of such, have encouraged "war-lordism" and have discouraged economic betterment.

This system of justice appears to have been the general modus operandi across most of Africa before colonization. It is remarkable that so much of the system has survived a couple centuries of colonization and several decades of tyrannical dictatorships, both very centralizing forces.

To this observer this system demonstrates the validity of the libertarian notion that man can govern himself better at the individual and local level than he can be governed by the central state, federated or otherwise.

5.0 out of 5 stars Fascinating and Instructive, July 9, 2008

By	J. Scott Shipman (Annandale, VA) - See all my reviews

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Completed this book two summers back during a quick study of the Horn of Africa---and as an arm-chair law buff found the author's work extraordinary in scope and import. Instead of the usual soft racism that derides much of African culture and heritage, Mr. Van Notten offers real alternatives to traditional Western legal remedies/methods---with added benefits of examining the legal/economic constraints of Somali custom/law. A first rate read and highly recommend to those interested in innovative alternatives to traditional Western jurisprudence.