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
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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.
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13 of 13 people found the following review helpful
Format:Paperback
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.
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.
11 of 11 people found the following review helpful
By H. C. George
Format:Paperback
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.
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 of 5 people found the following review helpful
5.0 out of 5 stars
Fascinating and important insight into the cultural/legal system of the Somalis
May 27, 2011
Format:Paperback|Amazon Verified Purchase
Reading "The Law of the Somalis" reminded me immediately of the scale of bigotry that exists towards Muslim and African cultures. While there are aspects of Somali law that violate contemporary gender norms among the educated world (as is the case in almost all traditional cultures, including European ones), this book shows just how effective, sophisticated, and aligned with nature are many aspects of traditional Somali clan law/custom. Indeed, prior to reading this book, I didn't really take "natural law" very seriously, thinking that it was simply self-justifying babbling by European philosophers and that because culture varied so much throughout the world that there were no "natural" laws. That said, in seeing Van Notten map Somali cultural norms onto natural law was extremely compelling (Van Notten had a sophisticated knowledge of European natural law theory); clearly Somali law had independently developed norms of property rights, exchange, tort, etc. that while different from European norms, nonetheless could be mapped onto natural law theory remarkably well.
Finally, although I had read anarcho-capitalist theorists, much of their work had seemed a bit far-fetched. "The Law of the Somalis" provides a concrete example of a legal system that also maps onto aspects of anarcho-capitalist theory with more immediacy than is the case with, say, medieval Iceland. While this book in particular has been ridiculed for claiming that present-day Somalia is a successful example of anarcho-capitalism, those critics either have not read the book or are blatantly dishonest. Van Notten makes a strong case that the violence in Somalia is the direct result of the attempt by the international system to force a central government on a culture that was functioning quite well without one for hundreds of years. From this perspective, the entire agenda of forcing nation-state central governments on peoples and regions where such a political structure may not be appropriate is profoundly evil. Given Van Notten's close analysis of the Somali situation, and how a majoritarian nation-state imposed from without provokes violence among clans that need not have existed, one comes to a deeper understanding of the extent to which many former colonies in Africa are violent in part because of forced top-down nation state majoritarian electoral democracy. In a region with tribes or clans that do not have traditions of civil co-existence and trust with other tribes, forcing them to work together under one "winner takes all" government exacerbates conflict. It creates a situation in which they compete to win, either by means of direct violence or by means of violence combined with elections, because they know they face a situation of either dominate or be dominated. Relatively peaceful co-existence is no longer an option, as it was before the top-down imposition of a nation-state structure.
Finally, Spencer McCallum's contributon at the end, which extends Van Notten's analysis to the possibility of a modern Free City by updating Somali clan law so that it can interact with the world of contemporary commercial law, is an exciting vision that urgently needs to be brought into reality.
A most unusual and enlightening book in many respects, highly recommended for anyone who is interested in Somalia, indigenous cultures, law, and an innovative vision of how to bring peace and prosperity to Africa.
Finally, although I had read anarcho-capitalist theorists, much of their work had seemed a bit far-fetched. "The Law of the Somalis" provides a concrete example of a legal system that also maps onto aspects of anarcho-capitalist theory with more immediacy than is the case with, say, medieval Iceland. While this book in particular has been ridiculed for claiming that present-day Somalia is a successful example of anarcho-capitalism, those critics either have not read the book or are blatantly dishonest. Van Notten makes a strong case that the violence in Somalia is the direct result of the attempt by the international system to force a central government on a culture that was functioning quite well without one for hundreds of years. From this perspective, the entire agenda of forcing nation-state central governments on peoples and regions where such a political structure may not be appropriate is profoundly evil. Given Van Notten's close analysis of the Somali situation, and how a majoritarian nation-state imposed from without provokes violence among clans that need not have existed, one comes to a deeper understanding of the extent to which many former colonies in Africa are violent in part because of forced top-down nation state majoritarian electoral democracy. In a region with tribes or clans that do not have traditions of civil co-existence and trust with other tribes, forcing them to work together under one "winner takes all" government exacerbates conflict. It creates a situation in which they compete to win, either by means of direct violence or by means of violence combined with elections, because they know they face a situation of either dominate or be dominated. Relatively peaceful co-existence is no longer an option, as it was before the top-down imposition of a nation-state structure.
Finally, Spencer McCallum's contributon at the end, which extends Van Notten's analysis to the possibility of a modern Free City by updating Somali clan law so that it can interact with the world of contemporary commercial law, is an exciting vision that urgently needs to be brought into reality.
A most unusual and enlightening book in many respects, highly recommended for anyone who is interested in Somalia, indigenous cultures, law, and an innovative vision of how to bring peace and prosperity to Africa.
Most Recent Customer Reviews
4.0 out of 5 stars
Great information
Almost all the legal systems we're familiar with come from either European or Asian roots. Further, almost none of us are familiar with what a real functioning Anarchy/Kritarchy... Read more
Published 2 months ago by Aretae
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Fascinating and Instructive
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. Read more
Published on July 9, 2008 by J. Scott Shipman
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